MacMurray-Judge Architectural Iron Company v. City of St. Louis

• Decision Date: 03 April 1897
• Citation: 39 S.W. 467,138 Mo. 608
• Parties: The MacMurray-Judge Architectural Iron Company, Appellant, v. The City of St. Louis
• Court: Missouri Supreme Court

39 S.W. 467

138 Mo. 608

The MacMurray-Judge Architectural Iron Company, Appellant, v. The City of St. Louis

Supreme Court of Missouri, Second Division

April 3, 1897

Appeal from St. Louis City Circuit Court.

Affirmed.

Leverett Bell and R. Schulenburg for appellant.

(1) Under the terms of section 21, of article 2, of the Constitution, one whose property is damaged for public use is entitled at any time after the work has commenced, to have his compensation adjusted and paid without reference to the fact that the work is not completed. 1 R. S. 61; Hickman v. Kansas City, 120 Mo. 110; St. Louis v. Hill, 116 Mo. 527; St. Louis v. Lang, 131 Mo. 412. (2) The charge is distinctly made in the petition in this case "that the defendant is prosecuting the work of changing the grade of Twenty-first street, Papin street, and the alley, and is conforming said streets and alley to the grade established by ordinance 15119 aforesaid, and the execution of said work will compel plaintiff to reconstruct its premises." (3) On March 11, 1892, the day the petition was filed, the work of changing the grade of the streets was in progress and had already been commenced, and on May 24 1892, it was restrained by a preliminary restraining order which was made perpetual in the final decree of May 15, 1895. The court below refused to consider damages, or to hear any testimony touching the same, but put plaintiff off with an injunction restraining defendant from executing any further work, until it had caused to be ascertained and had paid plaintiff's damages. (4) The relief granted below was far short of what plaintiff is entitled to under the constitutional provision in question. As the work had been commenced prior to the institution of the suit, the court should have heard testimony, ascertained the damages that had resulted and would result to plaintiff therefrom and entered a general judgment against defendant therefor, and restrained defendant from proceeding with the work until it had paid the judgment to plaintiff, or into court for the plaintiff.

W. C. Marshall for respondent.

(1) The facts stated in the petition do not fit the statement of the law and the principles decided in the cases cited by appellant. (2) It is true that under section 21, of article 2, of the Constitution, one whose property is damaged for public use is entitled to have his compensation adjusted and paid before he is disturbed or his proprietary rights divested, but it is not true that he can have an injunction to prevent such disturbance or divestment, and at the same time have a judgment for damages therefor before any damage has been done or authorized by the city to be done. (3) The vice of plaintiff's statement consists in the fact that it does not inform this court of the true issues in the case. The point at issue is whether plaintiff's petition sufficiently states a cause of action against the defendant when it does not aver that the defendant, by ordinance, had authorized anyone to do any work changing the grade of the streets to conform to the new ordinance. If no such ordinance was ever passed, then the city of St. Louis could not be prosecuting the work of changing the grade, and if such work was progressing it was wholly without any authority from the city of St. Louis. We say that before the damage has been done by the city the property owner can not, by injunction, restrain the city from damaging his property, and at the same time recover damages for prospective damage that may or may not ever be done to its property. (4) The doctrine is now firmly rooted in the jurisprudence of this State, at least, that officers of any city have such powers, and only such as are conferred on them by the charter of the city. Their authority is to do certain things, under certain conditions and in a certain manner, and they can act only in that manner and in the presence of such conditions. Forrey v. Ridge, 56 Mo.App. 615; Thompson v. Boonville, 61 Mo. 282; St. Louis v. Clemens, 52 Mo. 133; Leathers v. Springfield, 65 Mo. 504; Louisiana v. Miller, 66 Mo. 467. (5) Where a city charter provides that public work can only be done pursuant to ordinance authority, the city is not bound if the work is done either by the city engineer, or by direction of the mayor, or of any other officer, or if it is not done in the manner and according to the form and by the officer authorized by the organic law. St. Louis v. Clemens, 52 Mo. 133; Thompson v. Boonville, 61 Mo. 282; Matthews v. Alexander, 68 Mo. 115; Louisiana v. Miller, 66 Mo. 467; Crutchfield v. Warrensburg, 30 Mo.App. 456. (6) In the case at bar whoever is prosecuting the work of changing the grade, may be trespassers, but the city is not liable, because it never has attempted by ordinance to exercise its charter powers. A petition which fails to so charge is radically defective. Fulkerson v. Thornton, 68 Mo. 468; Kenney v. Railroad, 70 Mo. 252; Melvin v. Railroad, 89 Mo. 106; Halpin Mfg. Co. v. School District, 54 Mo.App. 371; Central Nat. Bank v. Doran, 109 Mo. 40. (7) By statute, a city's entire legislative power is vested solely in the mayor and board of aldermen, whose acts are evidenced alone by ordinance duly enacted, without which the corporation is not bound, even where it has power to act. Rowland v. City of Gallatin, 75 Mo. 134, and cases cited; Stewart v. Town of Clinton, 79 Mo. 603; Werth v. City of Springfield, 78 Mo. 107; Rumsey Mfg. Co. v. Schell City, 121 Mo.App. 175. (8) The mere passage of the ordinance establishing the grade could not damage plaintiff, for that ordinance, being a mere paper thing, might subsequently be repealed or changed before any actual physical work was done changing the grade. (9) Plaintiff has the right at common law and under the Constitution and statutes to maintain injunction to prevent the city damaging its property until the damages are ascertained and paid. It may also, if it so elects, wait until after the damage is done, and sue at law for the damages inflicted upon it. But it can not restrain the doing of an act which will result injuriously to it, and at the same time have an assessment of the damages before the act is done.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

This is a suit in equity to enjoin and restrain defendant from changing the grade of certain streets and an alley in said city, in pursuance of its ordinances, until the damage sustained by plaintiff to its property by reason thereof is adjusted, and to recover damage in the sum of $ 75,000, alleged to have been sustained by plaintiff by reason of said change of grade, etc.

The petition leaving off the formal parts is as follows:

"Plaintiff states that it is, and was at the times hereinafter mentioned, a corporation created by the laws of Missouri, and the defendant is and has been, since the year 1822, a municipal corporation under the laws of said State. That the defendant duly adopted and enacted an ordinance entitled 'An ordinance changing certain grades on Twenty-first street, Adams street, Poplar street, Randolph street Singleton street and Papin street, and to repeal parts of ordinance number four thousand, two hundred and thirty-one,' which ordinance was approved July 18, 1889, and is numbered 15119.

"That prior to the enactment of ordinance 15119, to wit, in the year 1871, Twenty-first street and Papin street, where said streets adjoin block 2282, and the east and west alley in block 2282 had been paved and improved with sidewalks, gutters, curbing and roadway in conformity with ordinance 7741 of said city, entitled 'An ordinance to improve certain streets in the second district south of the north line of Fifth street,' approved July 6, 1871.

"The plaintiff states that it is and has been for many years engaged in business in St. Louis, in manufacturing cast and wrought iron work, such as columns, lintels, sills, beams girders, stairs, house and store fronts, etc., and it is and has been since 1881, the owner of a lot of ground in block 2282 of said city on the southeast corner of Twenty-first street and Papin street, having a front on Twenty-first street of one hundred and twenty-seven feet and six inches, and on Papin street of two hundred and ninety-four feet, and is bounded west by an alley twenty feet wide, and said ground is covered by a brick structure, erected by the plaintiff in 1881, extending to the line of Papin street, Twenty-first street and the alley, and containing the machine shops, foundry,...