Nemours v. City of Clayton

• Decision Date: 02 November 1943
• Citation: 175 S.W.2d 60,237 Mo.App. 497
• Parties: Alanda Nemours and Dr. Paul R. Nemours, Appellants, v. City of Clayton, a Municipal Corporation, Alfred H. Kerth, Mayor of the City of Clayton, Charles J. Tacke, Chief of Police of the City of Clayton, and John L. Lynes, Street Commissioner of the City of Clayton, Respondents
• Court: Missouri Court of Appeals

175 S.W.2d 60

237 Mo.App. 497

Alanda Nemours and Dr. Paul R. Nemours, Appellants, v. City of Clayton, a Municipal Corporation, Alfred H. Kerth, Mayor of the City of Clayton, Charles J. Tacke, Chief of Police of the City of Clayton, and John L. Lynes, Street Commissioner of the City of Clayton, Respondents

Court of Appeals of Missouri, St. Louis District

November 2, 1943

Appeal from the Circuit Court of St. Louis County; Hon. Julius R Nolte, Judge.

Affirmed.

Keil & Keil and Frank Coffman for appellants.

(1) Defendants' acts in occupying plaintiffs' private property and depriving them of its use cannot be justified by the claimed authority in the so-called easement. The provisions of this document, attempting to authorize such acts, and those of the minutes of the property owners' meeting, too (if they are construed to authorize the agents to so act), are in violation of the covenants of the original indenture. Britton v. School District, 44 S.W.2d 33; Miller v. Klein, 177 Mo.App. 557; St. Louis Safe Deposit Bank v. Kennett Estate, 101 Mo.App. 370; Spahr v. Cape, 143 Mo.App. 114; Improvement Co v. Strauch, 162 Mo.App. 76. (2) In so occupying Glen Ridge and depriving plaintiffs of its use, defendants unlawfully appropriated plaintiffs' property. Britton v. School District, 44 S.W.2d 33; Peters v Buckner, 288 Mo. 618, 232 S.W. 1024. (3) (a) A municipal corporation possesses only such powers as the State has specifically conferred upon it by its charter. Power Corporation v. City, 156 S.W.2d 913, 917; State ex rel. v. Anderson, 101 S.W.2d 530; State ex rel. v. McWilliams, 355 Mo. 816, 74 S.W.2d 363; City of St. Louis v. Dreisoerner, 243 Mo. 217; City v. Quarry & Construction Co., 244 Mo. 479. (b) A fair and reasonable doubt existing as to a corporate power will be resolved against the existence of such power. Ibid.; City v. Realty Co., 29 Mo. 126; Hays v. Poplar Bluff, 263 Mo. 516, 531, 532. (c) In exercising such powers, a municipal corporation must not only stay within the statutes of its creation, but must not violate the Constitution of the State or the United States and must not contravene other state statutes or decisions of the State. St. Louis v. Dreisoerner, 243 Mo. 217, 223. (d) The statute by virtue of which the city of Clayton was created, Article IX, Chapter 38, is its Charter. Webb City v. Aylor, 163 Mo.App. 155, 163; Washington v. Mueller, 287 S.W. 856, 860. (e) Thereby defendant city was given no power, police or otherwise, to do any of the acts complained of. (4) Sec. 8395, R. S. 1939, providing that municipalities may "regulate the parking of vehicles on streets," does not authorize appellant city to prohibit parking on private streets. Baker v. Hasler, 274 S.W. 1095, 1096. (5) A city has no authority to prohibit parking on private property. Ex parte Corvey, 287 S.W. 879. (6) The term "street" does not include a "private road." 44 C. J. 882; Collier v. Paving & Supply Co., 180 Mo. 362, 387, 388. (7) It makes no difference that the public are permitted to use it. Where a "way" is laid out and used as a private way, the mere fact that the public also make use of it without objection will not make it a public way. Elliott on Roads & Streets (4 Ed.), sec. 5, p. 6; Marshall v. City of Springfield, 221 S.W. 17, 18. (8) A private way cannot be taken for a public way unless it is condemned for public use and paid for, or is made a public way by prescription or dedication. City of St. Louis v. Breuer, 223 S.W. 108, 110. (9) Designating a "private way" in an ordinance as a "street" or "public highway" does not make it such. Albers v. St. Louis, 268 Mo. 349, 358, 359. (10) The use of the term "street" or "streets" in an ordinance means a public way, not a private way whose title is vested in trustees for the use of certain property owners. Collier Estate v. Paving & Supply Co., 180 Mo. 362, 387, 388. (11) Where a place or condition is not a nuisance per se, at common law, or made so by statute (as this is not), a city cannot by ordinance, for the purpose of abating it, make it a nuisance. Brown v. Carrollton, 122 Mo.App. 276, 280, 281; City of St. Joseph v. Georgetown Lodge, 11 S.W.2d 1082; Kays v. City of Versailles, 22 S.W.2d 182; City of Sturgeon v. Ry., 17 S.W.2d 616; City of St. Louis v. Packing & Provision Co., 141 Mo. 375; Cemetery Co. v. Kansas City, 252 Mo. 466. (12) Ordinances Nos. 647, 944, 1056 and 1073 of defendant are clearly in conflict with several provisions of the Constitution of Missouri, because: (a) By ordinance 647, as amended by ordinance 944, defendant city gave the term "street" is own definition, then assumed that Glen Ridge was a public street under such definition, and by ordinances 1056 and 1073, prohibited the owners (plaintiffs) from parking thereon and took possession of the way by installing and operating its traffic control equipment. This for the purpose, as it says, to make it more convenient for the lot owners of the addition. Thus, the private property of plaintiffs was taken for the private convenience of other lot owners. This is prohibited by the Constitution. Sec. 20, Art. II, Const. Mo.; Rendering Co. v. Behr, 77 Mo. 91; State ex rel. v. West, 272 Mo. 304, 318. (b) By so taking over said private property for the purpose, as it also says, to control traffic on said private way, it determined by legislative enactment that the "contemplated use" to which it intended to and is putting the private property "be really public" and for "private ways of necessity." Such matters are, by the Constitution, for judicial determination. Sec. 20, Art. II, Const. Mo.; State ex rel. v. West, 272 Mo. 304, 318. (c) By taking and occupying the private property in the fashion above mentioned, for the further purpose, as it also says, of controlling traffic on Clayton road, a public street, it transferred plaintiffs' private property to the public as well as the other lot owners of the addition, without the intervention of courts or juries, without plaintiffs having their day in court, and with no formality excepting the passage of these ordinances. This is prohibited by the Constitution. Secs. 21, 30, Art. II, Const. Mo.; Rendering Co. v. Rehr, 77 Mo. 91; City v. Hill, 116 Mo. 527; Ex parte Tarling, 241 S.W. 929; St. Louis v. Dreisoerner, 243 Mo. 217; State v. Gas Light Co. 102 Mo. 472; Ex parte Lerner, 281 Mo. 18; St. Louis v. Dairy Co., 213 Mo. 148; St. Louis v. Klausmeier, 213 Mo. 119; Ex parte Smith, 135 Mo. 223. (13) While under police power certain uses of private property may be prohibited without compensation, lawful uses to which property may be put, giving it the value it possesses, cannot be restricted and the value destroyed or partially destroyed, even for a public use, without making compensation to the owner. State ex rel. v. McKelvey, 256 S.W. 474; City v. Hill, 116 Mo. 527. (14) Land need not be actually occupied by the public to be taken for public use, but any regulation which imposes any restriction on the use of the property by its owners, or anything which impairs the enjoyment thereof by affecting some right or easement appurtenant thereto, may constitute a public use within the meaning of the Constitution. City v. Hill, 116 Mo. 527; City v. Liebi, 252 S.W. 404. (15) The time and manner of raising the constitutional issue is consistent with what is said in Lohmeyer v. Cordage Co., 214 Mo. 685, 690, and in Harvester Co. v. Bank, 104 S.W.2d 385, 387.

Glen Mohler for respondents.

(1) Where a privately owned street has been devoted by its owners to automobile travel by the public generally, the public thereby acquires an interest in the regulation and control of such public travel. The police power is adequate for the regulation of such traffic for the public welfare and safety so long as the owners permit the street to be so used. Munn v. People of Illinois, 94 U.S. 113, 24 L.Ed 84; 37 Am. Juris., sec. 314; Kingshighway Pres. Ch. v. Sun Realty Co., 324 Mo. 510, 24 S.W.2d 108; Poole & Creber Mkt. Co. v. Brashears, 125 S.W.2d 23; Clayton v. Nemours, 164 S.W.2d 942. (2) A city of the fourth class has the power to regulate automobile traffic and to enact ordinances to define zones where parking shall be either limited or prohibited. City of Clayton v. Nemours, 164 S.W.2d 935, 942; Secs. 8395, 7172, Mo. R. S. 1939; Cavanaugh v. Gerk, 313 Mo. 375, 280 S.W. 51. (3) Ordinances regulating traffic on the public streets of Clayton are applicable to all streets opened to and used by the general public for automobile travel. The word "public," with reference to streets has a dual meaning. It may in certain connotations refer to the ownership of the street, or in other relations, it refers to the use to which the street is put. 50 C. J., p. 845; City of Clayton v. Nemours, supra; Phillips v. Henson, supra. (4) In statutes and ordinances regulating automobile traffic, the "popular and not the technical" meaning of street or highway applies, and such enactments apply to all streets open to and used by the public, regardless of their legal status. Phillips v. Henson, 326 Mo. 282, 30 S.W.2d 1065; City of Clayton v. Nemours, 164 S.W.2d 935; Crocker v. Jett, 93 S.W.2d 75; Commonwealth v. Gammons, 23 Pick. (Mass.) 201; Crossler v. Safe-Way Stores (Idaho), 6 P.2d 151; Public Utilities v. Jones (Utah), 179 P. 745; Gruelich v. Paine, 231 N.Y. 311, 132 N.E. 100; 37 Am. Juris., sec. 314; Simmons v. State, 149 Ark. 348, 232 S.W. 597, 599; Weirich v. State, 140 Wisc. 98, 121 N.W. 652, 22 L. R. A. (N. S.) 1221; Walton v. Railroad, 67 Mo. 56; Hodges v. Chambers, 171 Mo.App. 563; 29 C. J. 649. (5) The St. Louis Court of Appeals has held that the street in question, Glen Ridge avenue, is a "public" street, because it is permitted by the owners to be opened to and used by the public, and that the no-parking ordinance,...