Knapp, Stout & Co. Co. v. St. Louis

• Citation: 56 S.W. 1102,156 Mo. 343
• Parties: KNAPP, STOUT & CO. COMPANY, Appellant, v. ST. LOUIS et al
• Decision Date: 15 May 1900
• Court: Missouri Supreme Court

56 S.W. 1102

156 Mo. 343

KNAPP, STOUT & CO. COMPANY, Appellant, v. ST. LOUIS et al

Supreme Court of Missouri, First Division

May 15, 1900

Appeal from St. Louis City Circuit Court. -- Hon. Daniel D. Fisher Judge.

Affirmed.

Lubke & Muench for appellant.

(1) By interposing the demurrers to appellant's petition the respondents conceded the truth of all the averments of the petition. Shields v. Johnson Co., 144 Mo. 77; Dodson v. Lomax, 113 Mo. 555; McGinnis v. Geo Knapp & Co., 109 Mo. 131; Wolff v. Ward, 104 Mo. 127. And they thereby also conceded to be true the conclusions of fact drawn from the matters recited in the petition. Harman v. St. Louis, 137 Mo. 502; Nichols v. Nichols, 134 Mo. 187; Railroad v Kenney, 41 Mo. 271. (2) The circuit court erred in sustaining respondent's demurrer. Sherlock v. Railway Co., 142 Mo. 172; State ex rel. v. Murphy, 134 Mo. 548; Railway v. People's Railway, 132 Mo. 34; Lumber Co. v. Railroad, 129 Mo. 455; Christian v. St. Louis, 127 Mo. 114; Knapp, Stout & Co. Company v. Railway, 126 Mo. 26; Heinrich v. St. Louis, 125 Mo. 424; Lockwood v. Railway Co., 122 Mo. 86; Schopp v. St. Louis, 117 Mo. 131; Gauss & Sons Mfg. Co. v. Railroad, 113 Mo. 308; Railway v. Railway, 111 Mo. 666; Refining Co. v. Elevator Co., 82 Mo. 121; s. c., 101 Mo. 192; Glaessner v. Brewing Co., 100 Mo. 508; Glasgow v. St. Louis, 87 Mo. 678; s. c., 15 Mo.App. 112; Glasgow v. St. Louis, 107 Mo. 198; Cummings v. Louis, 90 Mo. 259; Bailey v. Culver, 84 Mo. 531; Railway v. Springfield, 85 Mo. 674.

B. Schnurmacher and Chas. Claflin Allen for respondent, the City of St. Louis.

(1) The ordinance vacating part of First or Main street is a valid enactment, because paragraph 2 of section 26 of article III of the charter of the city of St. Louis confers upon the mayor and municipal assembly the express power of establishing, opening, vacating, etc., all streets, avenues, sidewalks, alleys, etc. The power being express and absolute it is for the assembly and mayor to decide whether a street shall be kept open or vacated, and not for the courts. Glasgow v. St. Louis, 107 Mo. 198; Heinrich v. St. Louis, 125 Mo. 424; Christian v. St. Louis, 127 Mo. 109; City v. Clark, 54 Mo. 36; Railway v. Springfield, 85 Mo. 676. (2) Plaintiff's property, as appears from the face of the petition, does not abut or front upon that part of the street which the ordinance under consideration vacates. Plaintiff therefore is in no greater manner interested in the validity or invalidity of the ordinance which affects that part of the street, than any other citizen of the city of St. Louis. The injury to plaintiff, in order to enable him to maintain this action, must be special and peculiar to him, and different in kind, and not merely in degree, from the injury sustained by other members of the community. Glasgow v. St. Louis, 107 Mo. 202; Fairchild v. St. Louis, 97 Mo. 85; Rude v. St. Louis, 93 Mo. 408; Bailey v. Culver, 84 Mo. 531. (3) Plaintiff in this case is furnished a complete and adequate remedy at law, assuming it has any right of action at all. Therefore injunction will not lie. Christian v. St. Louis, 127 Mo. 109; Heinrich v. St. Louis, 125 Mo. 424. (4) The allegations of the petition are not sufficient to amount to charges of fraud upon the part of the city officers in the enactment of the ordinance. They are mere conclusions and not averments of fact. Fraud must be pleaded specifically and not generally; enough facts must be recited to enable the court to conclude for itself whether fraud did or did not exist. Bliss on Code Pl., sec. 211; Smith v. Sims, 77 Mo. 269; Hoester v. Sammellmann, 101 Mo. 619; Mateer v. Railroad, 105 Mo. 320; Clough v. Holden, 115 Mo. 336; Bank v. Rohrer, 138 Mo. 369. (5) A demurrer admits only the facts which are well pleaded. Warder v. Evans, 2 Mo. 205; McKinzie v. Mathews, 59 Mo. 99; Bradley v. Franklin Co., 65 Mo. 638. (6) The last two propositions are especially applicable where, like here, the ordinance was passed pursuant to an express grant of power, and its mere enactment makes out a prima facie case in favor of its validity. Skinner v. Heman, 49 S.W. 1026; Morse v. Westport, 110 Mo. 502; Morse v. Westport, 136 Mo. 276.

McKeighan, Barclay & Watts for respondent, Mallinckrodt Chemical Works.

(1) A demurrer does not admit conclusions of law, or statements of law. Kleekamp v. Meyer, 5 Mo.App. 444; Bradley v. Franklin County, 65 Mo. 638; Fogg v. Blair, 139 U.S. 118; Kent v. Canal Co., 144 U.S. 75. (2) A demurrer admits traversable facts which are well pleaded, and nothing more. Warder v. Evans, 2 Mo.App. 205. (3) Motives of the municipal assembly in the passage of an ordinance, in the absence of any allegation of fraud, can not be inquired into. Glasgow v. St. Louis, 107 Mo. 198; Soon Hing v. Crowley, 113 U.S. 710. (4) Vacation of a public highway by a municipal assembly of the city of St. Louis is the exercise of a legislative function delegated to it by the State. The discretion of the municipal assembly in the exercise of this legislative function, where fraud is not charged, is not subject to judicial review. Charter, City of St. Louis, art. 3, sec. 26, par. 2; Rev. Ord., City of St. Louis, 1892, p. 366; McCormack, Admr., v. Patchin, 53 Mo. 36; State v. Clark, 54 Mo. 36; Glasgow v. St. Louis, 107 Mo. 198; State ex rel. v. Schweickardt, 109 Mo. 496; Heinrich v. St. Louis, 125 Mo. 424; Christian v. St. Louis, 127 Mo. 109. (5) If an abutting property owner has sustained any special damage by reason of the vacation of the public highways on which his property abuts, he has a plain and adequate remedy at law. Heinrich v. St. Louis, 125 Mo. 424; Christian v. St. Louis, 127 Mo. 109.

ROBINSON, J. Marshall, J., not sitting, having been of counsel.

OPINION

ROBINSON, J.

This is a proceeding in equity begun in the circuit court of the city of St. Louis on November 7, 1896, to invalidate an ordinance passed on the fourth day of April, 1891, by the city of St. Louis, vacating a part of Main or First street between Mallinckrodt and Salisbury streets for a distance of one block and to enjoin the defendants from interfering with said portion of said street, and to require them to remove therefrom certain improvements placed thereon since the passage and approval of the ordinance in question. The petition, omitting the formal part, is as follows:

"The plaintiff, the Knapp, Stout & Co. Company is a corporation existing under the laws of the State of Wisconsin, and for many years last past has owned, and now still does own and possess, among other parcels of real estate in said city of St. Louis, a lot 60 feet in width, lying on the north side of Salisbury street, at a point where Main street, hereinafter named, runs into or intersects Salisbury street, so that said lot fronts also on Main street, as hereinafter mentioned, at its northern terminus. The defendant, the city of St. Louis, is a municipal corporation, existing under the laws of Missouri, its charter having been adopted October 22, 1876, and being a public act. The defendant, the Mallinckrodt Chemical Works, is also a corporation duly incorporated and existing as such, and one Edward Mallinckrodt is the president of said works, and at the time of the passage of the ordinance hereinafter mentioned, and while the same was pending before the municipal assembly of said city, the said Mallinckrodt was authorized to act for and on behalf of said Mallinckrodt Chemical Works in the matters hereinafter alleged against said works. That for many years prior to October 22, 1876, there existed, and now still exists, in said city an open, public street or highway, of the width of about 60 feet, extending from about Dorcas street, in the southern suburbs of said city, northwardly to Salisbury street, a distance of more than 75 blocks, or about 5 miles. That said street is called Main street or First street, and in its course follows the meanderings of the Mississippi river; and said street has, during all said time, been used by the public as an open and complete public street and highway; that the owners of the ground fronting said street constructed their buildings along the eastern and western lines of said street, treating the same as a public street, and the defendant, the city of St. Louis, has during all said time, and until the happening of the grievances hereinafter complained of, used and treated said street as one continuous street extending between the points aforesaid, and the distance aforesaid. That defendant, the city of St. Louis, at the times hereinafter mentioned, held, and now still holds the title to said street as a continuous street extending between the points aforesaid in trust for the use of the public of said city of St. Louis and especially in trust for the use of the owners of property abutting or adjoining the same, including the plaintiff hereinbefore named, by reason of the plaintiff's ownership of said tract of ground fronting on said Main street, hereinbefore more particularly described.

"That heretofore the municipal assembly of defendant, the city of St. Louis, passed an ordinance numbered 16,093, which was approved by the mayor of said city April 4, 1891, and is in words and figures as follows:

"'An ordinance for the vacation of First street between Mallinckrodt and Salisbury streets:

"'Be it ordained by the municipal assembly of the city of St. Louis as follows:

"'Section 1. First street between Mallinckrodt and Salisbury streets is hereby vacated. Approved April 4, 1891.'

"That by said ordinance the defendant the city of St. Louis does attempt to break the continuity of said Main street by vacating or attempting to vacate one block thereof extending from Mallinckrodt to Salisbury street, a distance of more than 300 feet, and a...