City of St. Louis v. Gleason

• Citation: 8 S.W. 348,93 Mo. 33
• Parties: CITY OF ST. LOUIS v. GLEASON et al.
• Decision Date: 01 October 1887
• Court: United States State Supreme Court of Missouri

8 S.W. 348

93 Mo. 33

CITY OF ST. LOUIS v. GLEASON et al.

Supreme Court of Missouri.

October Term, 1887.

EMINENT DOMAIN — JURISDICTION — CITY STREET.

In a proceeding to establish and open a street under an ordinance passed pursuant to city charter St. Louis, art. 6, § 2, providing that "whenever the assembly shall provide by ordinance for establishing, opening, widening, or altering any street, * * * either on the unanimous recommendation of the board of public improvements, or on the petition of the owners of a major portion of the ground fronting thereon, and it becomes necessary, for that purpose, to appropriate private property, the city counselor * * * shall apply to the circuit court, * * * by petition," etc., it not appearing from such petition to the court, or from the ordinance therein recited, that such ordinance was passed "either on the unanimous recommendation of the board of public improvements, or on the petition of the owners of a major portion of the ground fronting on the proposed street," the court has no jurisdiction to condemn the land in question.

Appeal from St. Louis court of appeals.

W. C. Marshall, for appellants. Leverett Bell, for respondent.

HENRY, C. J.

The following is the statement of the case made by the court of appeals, (15 Mo. App. 26,) which we adopt: "This is a proceeding instituted by the City of St. Louis, under the provisions of its charter, and of an ordinance purporting to be passed in pursuance thereof, to establish and open Benton street, in said city, from Jefferson avenue to Garrison avenue. Commissioners were appointed, who made a report to the court; exceptions were filed by certain property owners to the same; these exceptions were overruled, the report confirmed, judgment entered accordingly, and an appeal has been taken to this court. The petition fails to show that the ordinance on which the proceeding was based was passed on the unanimous recommendation of the board of public improvements, or on the petition of the owners of the major part of the property fronting on the proposed street, as required by section 2 of article 6 of the charter. 2 Rev. St. p. 1606. This section reads as follows: `Whenever the assembly shall provide, by ordinance, for establishing, opening, widening, or altering any street, avenue, wharf, market-place, or public square, or route for sewer or water pipe, either on the unanimous recommendation of the board of public improvements, or on the petition of the owners of a major portion of the ground fronting thereon, and it becomes necessary, for that purpose, to appropriate private property, the city counselor, in the name of the city of St. Louis, shall apply to the circuit court of the Eighth judicial circuit, or to any one of the judges in vacation, by petition, etc. The question, then, is," say the court of appeals, "whether, in order to give jurisdiction to the circuit court to entertain a proceeding thereunder, it is necessary for the petition to show that the ordinance...