City of St. Louis v. Christian Bros. College

• Decision Date: 02 April 1914
• Docket Number: No. 17,541.,17,541.
• Parties: CITY OF ST. LOUIS v. CHRISTIAN BROS. COLLEGE et al.
• Court: Missouri Supreme Court

165 S.W. 1057

257 Mo. 541

CITY OF ST. LOUIS v. CHRISTIAN BROS. COLLEGE et al.

No. 17,541.

Supreme Court of Missouri.

April 2, 1914.

Rehearing Denied April 13, 1914.

1. MUNICIPAL CORPORATIONS (§ 655) — STREETS.

The provisions of St. Louis city charter that an ordinance establishing a boulevard shall not be repealed without the written consent of owners of at least two-thirds of the property fronting on the boulevard only applies to boulevards having an actual physical existence, so that an ordinance which provided that a street "is hereby changed into a boulevard" could be repealed without the consent of two-thirds of the property owners, where the street had not been actually changed into a boulevard.

2. STATUTES (§ 188)—CONSTRUCTION.

In determining the legislative intent, the meaning of the words used may be either expanded or limited, when necessary to harmonize the law with reason.

3. STATUTES (§ 183)—CONSTRUCTION.

The reason of the law should control over its letter.

4. CONSTITUTIONAL LAW (§ 121)—CONTRACT RIGHTS.

The enactment of an ordinance changing a street into a boulevard, and providing that no building shall be thereafter erected on abutting land nearer than 15 feet from the line, and that existing structures within that limit shall

be removed, did not give rise to any vested contractual rights preventing the constitutional repeal of the ordinance without the consent of abutting owners, in absence of any actual physical change in the condition of the street.

Faris and Bond, JJ., dissenting.

In Banc. Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

Action by the City of St. Louis against the Christian Brothers College and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded for further proceedings.

Action to widen street. From a judgment for defendants, plaintiff appeals.

In the city of St. Louis there has existed for many years a thoroughfare extending from Easton avenue to Penrose street, known as "Kingshighway boulevard," which is not a boulevard, in fact, but a street. Said street probably traverses other parts of said city, but that fact is not pertinent to the issues before us.

On March 27, 1907, the legislative department of St. Louis enacted, in due form, an ordinance having for its purpose the making of a real boulevard out of said Kingshighway boulevard. This ordinance will hereafter be referred to in our opinion as the boulevard ordinance. Its purposes are quite fully indicated in the first and last sections thereof, which read as follows:

"Section 1. The present Kingshighway boulevard from Easton avenue to Penrose street in the city of St. Louis, Missouri, is hereby changed into a boulevard to be known as `Kingshighway.'"

"Section 7. The city counselor is hereby authorized and instructed to cause said `Kingshighway' to be established, changed and widened as a boulevard according to law."

Other sections of the ordinance prescribe that the proposed boulevard shall be 150 feet wide, with sidewalks, driveways, and parkways planted to shrubbery and trees, together with certain restrictions as to the character of travel upon said proposed boulevard. To secure a width of 150 feet, it would have been necessary to condemn additional land fronting on said street. Said ordinance also contains the following section, regarding the construction of buildings near the proposed boulevard and the removal of other buildings: "No structure of any kind whatsoever shall hereafter be erected on private property fronting upon said `Kingshighway' between Easton avenue and Natural Bridge road, nearer than fifteen feet from the respective east and west lines of said boulevard, and all existing structures of any kind whatsoever upon the private property fronting upon or adjacent to said `Kingshighway' between the east and west lines of said highway and lines fifteen feet from and parallel to the said east and west lines, respectively, shall be removed therefrom." No buildings were, in fact, removed, as contemplated by the last-quoted section of the ordinance, nor were any structures erected within 15 feet of the proposed boulevard.

This boulevard ordinance continued in force nearly two years, during which time nothing was done by the city to convert the aforesaid street into a boulevard. No action was instituted by the city to condemn the additional lands called for, nor did the owners of said lands convey the same to the city or spend any money towards the construction of the proposed boulevard.

On March 17, 1909, a new ordinance was enacted by the city, which, in addition to repealing the boulevard ordinance, directed the widening and improvement of Kingshighway as a street between Easton avenue and Penrose street. This last-mentioned ordinance will hereafter be designated as the repealing ordinance, and it was under its provisions that the plaintiff city instituted the present action to condemn lands of defendants for the purpose of widening Kingshighway as a street.

It is conceded that the repealing ordinance was enacted in exact conformity with the charter of St. Louis, except that the persons owning two-thirds of the property fronting on the proposed boulevard did not consent in writing to such repeal. The appellant contends that no such consent was necessary to repeal the boulevard ordinance, because nothing had been done towards carrying said ordinance into effect.

Two of the defendants filed answers asserting that such consent of the property owners was necessary to a repeal of the boulevard ordinance; that the enactment of the boulevard ordinance in 1907 increased the value of their property; and that its repeal, without the consent of the property owners, violated sundry provisions of the state and federal Constitutions.

The learned trial court sustained the contention of defendants, and gave judgment in their favor, dismissing the plaintiff's petition, from which it prosecutes this appeal.

William E. Baird and E. E. Pearcy, both of St. Louis, for appellant. W. B. & Ford W. Thompson, of St. Louis, for respondent Thompson. Eliot, Chaplin, Blayney & Bedal, of St. Louis, for respondent Hydraulic Press Brick Co.

I. Repeal of Ordinance.

BROWN, J. (after stating the facts as above).

The charter of St. Louis provides for the establishment of boulevards, the cost of which shall be taxed against the lands fronting thereon. The provisions of said charter pertaining to the abandonment or discontinuance of boulevards read as follows:

"(x) The municipal assembly may at any time repeal any ordinance establishing or opening a boulevard, or changing an existing street into a boulevard, and thereupon such boulevard shall be and become a street in all respects like other streets of the city, and the property abutting thereon shall be relieved from the restrictions imposed by such ordinance;

"(y) Provided, however, that such an ordinance shall not be repealed without the consent in writing of the owners of at least two-thirds in frontage of all the property fronting on such boulevard, nor unless such repeal shall be recommended by the board of public improvements;

"(z) And provided, further, that the procedure provided in this article for the establishing and opening of boulevards shall be pursued for the ascertainment and payment of damages and benefits resulting from such repeal; except that no compensation shall be allowed or paid to any person consenting to the repeal of such an ordinance."

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