Kroeger v. St. Louis County

• Decision Date: 14 February 1949
• Docket Number: 40381
• Citation: 218 S.W.2d 118,358 Mo. 929
• Parties: George B. Kroeger et al., (Plaintiffs) Appellants, v. St. Louis County, a Political Subdivision, et al., (Defendants) Respondents City of University City, a Municipal Corporation, (Defendant) Appellant
• Court: Missouri Supreme Court

218 S.W.2d 118

358 Mo. 929

George B. Kroeger et al., (Plaintiffs) Appellants, v. St. Louis County, a Political Subdivision, et al., (Defendants) Respondents

City of University City, a Municipal Corporation, (Defendant) Appellant

No. 40381

Supreme Court of Missouri

February 14, 1949

Rehearing Denied March 14, 1949.

Appeal from Circuit Court of St. Louis County; Hon. Amandus Brackman, Judge.

Affirmed.

Calhoun & Boisseau and Marvin E. Boisseau for appellants.

(1) By the vacation of the street plaintiffs were entitled to possession thereof to the center of the same, freed from the burden of public use, and the claim of St. Louis County constitutes a cloud upon their title. Eureka Real Estate & Inv. Co. v. Southern Real Estate & Financial Co., 200 S.W.2d 328; Stamm Electric Co. v. Hamilton-Brown Shoe Co., 350 Mo. 1178, 171 S.W.2d 580; Brown v Weare, 348 Mo. 135, 152 S.W.2d 649; Neil v Independent Realty Co., 31 Mo. 1235, 298 S.W. 363. (2) St. Louis County has no jurisdiction over public highways in University City. When a municipality is organized within the boundaries of a county, the territory embraced within the limits of such municipality is withdrawn from the control of the county as to all subjects which the charter of such municipality declares shall be cognizable by the governing board or other authorities of such municipal corporation. 43 C.J., sec. 184, p. 186; In re Knight, 155 Cal.App. 515. (3) There cannot be at the same time within the same territory two distinct bodies exercising the same powers, jurisdictions, and privileges. 1 Dillon on Municipal Corporations, sec. 184; Ex parte Campbell, 74 Cal. 25, 5 Am. St. Rep. 418, 15 P. 318; State ex rel. Audrain County v. City of Mexico, 197 S.W.2d 301, approved Kansas City v. School Dist. of Kansas City, 201 S.W.2d l.c. 933. (4) The City of University City has exclusive control over all public ways within its territorial limits, including the exclusive power to vacate the same. Secs. 7197, 7212, R.S. 1939; Knapp v. St. Louis, 153 Mo. 560, 156 Mo. 343; Duckworth v. City of Springfield, 194 Mo.App. 51, 184 S.W. 476. (5) Only adjoining property owners or occupants can complain of the vacation of a street. Glasgow v. St. Louis, 107 Mo. 198; Knapp v. St. Louis, 153 Mo. 572; Arcadia Realty Co. v. St. Louis, 326 Mo. 273, 30 S.W.2d 995. (6) This exclusive right of University City to control its public ways is protected by the constitution of the state. Art. III, Sec. 40. Paragraphs 15 and 17. (7) St. Louis County acted without authority herein, its powers being confined to improving existing streets. Sec. 8608, R.S. Mo. 1939; Laws 1945, pp. 1477, 1478; State ex rel. v. Gordon, 268 Mo. 713, 188 S.W. 160; Green City v. Martin, 141 S.W. 879.

Erwin F. Vetter, County Counselor of Clayton, for respondents.

A municipality is without legal authority under Section 7217, R.S. Mo. 1939, to vacate a county highway traversing through such city, which has been established and constructed out of bond issue funds pursuant to the provisions of Section 8608, R.S. Mo. 1939. Sec. 7217, R.S. 1939, Laws 1895, p. 65; Secs. 8606, 8608, R.S. 1939; Laws 1917, p. 442; Secs. 7197, 7212, R.S. 1939; Laws 1895, p. 65; Sec. 8781, R.S. 1939; Laws 1941, p. 465; McQuillin, secs. 1387, 1414, 1415; Zoll v. St. Louis County, 343 Mo. 1031, 124 S.W.2d 1168; Duckworth v. City of Springfield, 194 Mo.App. 51, 184 S.W. 476; State ex rel. St. Louis County v. Gordon, 268 Mo. 713, 188 S.W. 160; State ex rel. Town of Kirkwood v. County Court, 142 Mo. 575, 44 S.W. 734; State ex rel. Buchanan County Power & Transmission Co. v. Baker, 320 Mo. 1146, 9 S.W.2d 589; In the Matter of State ex rel. Bank v. Davis, 314 Mo. 373, 284 S.W. 464; State ex rel. City of Hannibal v. Smith, 335 Mo. 825, 74 S.W.2d 367; State ex rel. Russell v. State Highway Comm., 328 Mo. 942, 42 S.W.2d 196; Cole v. City of Seaside, 80 Ore. 73, 156 P. 569; Wilson v. Interstate Construction Co., 10 S.W.2d 908; State v. Franklin, 133 Mo.App. 486, 113 S.W. 652; Peters v. St. Louis, 226 Mo. 62, 125 S.W. 1134; State ex rel. Spencer v. Anderson, 101 S.W.2d 530; Taylor v. Dimmitt, 336 Mo. 330, 78 S.W.2d 841, 98 A.L.R. 995; Reilly v. Sugar Creek Twp. of Harrison County, 345 Mo. 1248, 139 S.W.2d 525.

OPINION

Tipton, P.J.

This is an action to determine title to a narrow strip of land in University City, known as Forsythe Boulevard. The judgment of the trial court was in favor of St. Louis County.

For the purpose of establishing and constructing a county-wide connecting and integrated road system, the respondent, St. Louis County, issued road bonds in the amount of ten million dollars after this bond issue had been authorized by a county-wide election in April, 1928.

In establishing this connecting county highway system it was necessary to locate and construct connecting routes through several of the municipalities of the county. In laying out and establishing the north and south route it was necessary to traverse through the cities of Webster Groves, Brentwood, Clayton and University City. The strip of land in question was condemned by the respondent county in 1932 at a cost of more than $ 14,000, which cost was paid out of the bond issue, and the total amount expended by the respondent county out of this bond issue was $ 43,211.85. This connecting unit or section of roadway did not follow the line of any existing street but was a new connecting road running from a point in the southeast part of University City in a northwest direction.

On February 14, 1946, the Board of Aldermen of University City enacted an ordinance vacating the highway easement over this strip of ground from the north line of Gannon Avenue to the intersection of Old Bonhomme and McKnight Roads on the north and west. The individual appellant owns a lot adjacent to the part of the highway which the city sought to vacate by this ordinance.

The county-wide connecting highway system has been improved in sections or segments extending over a period of years. The strip of land in question has not as yet been paved.

Appellant University City is a city of the fourth class and was incorporated in 1906. It joins the individual appellants by admitting the allegations of their petition and joins in their prayer asking that the ordinance be adjudged a valid and complete vacation of the easement described in the petition. The trial court held the ordinance invalid.

In this case we do not have any question of the appellant city's police power to control the traffic on the highway in question. The respondent county in its brief concedes the city has such power. Nor does this case involve a highly already constructed and taken in the city limits because the city has extended its limits.

The respondent county relies upon section 8608, R.S. Mo., 1939. Section 8608, Mo., R.S.A. The pertinent parts are as follows:

"The proceeds of all bonds sold shall be paid into the county treasury and shall be used for the grading, construction, paving or maintaining of paved, graveled, macadamized or rock roads and necessary bridges and culverts in said county and for no other purpose whatever, and the proceeds of such bonds shall be kept in a separate fund to be known as the 'road construction fund.' If, in the construction or improvement of any road between two given points in the county it becomes necessary to make or use any street or streets in any incorporated city or village or any road or roads in any incorporated road district as a part of said road, then such street or streets or road or roads may be constructed or improved and the cost thereof may be paid out of the proceeds of the sale of said bonds."

The appellants contend that this section does not give the respondent any power to make a new road within the corporate limits of a city, but only the right to improve existing streets; also, that since the appellant city is a city of the fourth class, it has the power under sections 7197 and 7212, R.S. Mo., 1939, to vacate any street or highway within its corporate limits.

Section 8608, supra, gives the county the power to "make" a street or road in any incorporated city or village and to pay for the same out of the proceeds of the sale of the bonds. Certainly the word "make" implies the authority to construct or build. And that is exactly what the respondent did in this case.

Appellants contend that such construction would be unconstitutional. They say in their brief: "This statute [section 8608] was first enacted in 1917. Prior to its enactment the Court on more than one occasion had held that the County Court could not expend County funds on the improvement of City streets. This was on the theory that the County had no control over such streets," citing State ex rel. St Louis County v. Gordon, 268 Mo. 713, 188 S.W. 160; and Green City v. Martin, 237 Mo. 474, 141 S.W. 879. The Gordon case approved the ruling in the Martin case and was not based upon control of...