City of St. Louis v. Franks

• Decision Date: 30 April 1883
• Citation: 78 Mo. 41
• Parties: THE CITY OF ST. LOUIS, Appellant, v. FRANKS.
• Court: Missouri Supreme Court

78 Mo. 41

THE CITY OF ST. LOUIS, Appellant,

v.FRANKS.

Supreme Court of Missouri.

April Term, 1883.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Leverett Bell for appellant.

Bereman & Mason for respondent.

HENRY, J.

This was a proceeding commenced in June, 1878, in the St. Louis circuit court, to open Rosatti street, under an ordinance of the city. Rosatti street runs north and south, parallel with Second Carondelet avenue, and within 200 feet of said avenue.

Section 1, article 6, of the city charter provides: “That no street shall be extended nearer than 500 feet to a street already opened, where the street runs north and south, except on the unanimous recommendation of the Board of Public Improvements, submitted in writing to the assembly, and by it approved.” There was no evidence to show that said board ever recommended the extension of this street; but it is contended by the city, that from the fact of the passage of the ordinance by the assembly, a prior compliance with all the requirements necessary to its validity is to be presumed. This was the opinion of the circuit court, but, on appeal to the court of appeals, that court held otherwise, and reversed the judgment, and the city has prosecuted her appeal to this court.

The power of eminent domain, as is said by Judge Dillon, in his work on Municipal Corporations, “is a tremendous power and one which is without theoretical limits, and, indeed, without any legal limitations, except such as may exist in written organic restraints upon legislative action.” Vol. 2, § 453. Again he says: “In construing statutes or charters delegating the power of eminent domain, and pointing out the mode of exercising it, it is the duty of the judicial tribunal to insist that every provision intended for the benefit of the owner shall be complied with before he shall be divested of his property. Except so far as the mode of procedure is ordained by the constitution, it is competent for the legislature to prescribe it, and the mode prescribed must, as we have seen, be strictly and guardedly pursued, although unreasonable nicety should not be, and is not, required.”

The recommendation of the Board of Public Improvements, required by the charter, is of the nature of a jurisdictional fact. The ordinance providing for the extension of Rosatti street was in substance and effect, the initial step in a judicial proceeding, to divest the owners of the land proposed to be taken of their title. No proceeding for this purpose...