Perkins v. Fielding

• Decision Date: 23 December 1893
• Citation: 24 S.W. 444,119 Mo. 149
• Parties: Perkins, Appellant, v. Fielding et al
• Court: Missouri Supreme Court

24 S.W. 444

119 Mo. 149

Perkins, Appellant, v. Fielding et al

Supreme Court of Missouri, First Division

December 23, 1893

Appeal from Jackson Circuit Court. -- Hon. Frank P. Sebree, Special Judge.

Affirmed.

R. H Field for appellant.

(1) Injunction is the proper remedy to prevent defendants acting outside of the limits of Westport, also to prevent them from trespassing upon plaintiff's land, even if it were inside of Westport. State ex rel. v. Whitcomb, 55 Ill. 172; Stulz v. State ex rel., 65 Ind. 492; City of Delphi v. Startzman, 104 Ind. 343; High on Injunctions [3 Ed.], ch.9. (2) The burden of proof is upon the defendants, upon a motion to dissolve temporary injunction. High on Injunctions [3 Ed.], sec. 1470; Apitz v Railroad, 17 Mo.App. 420; Butler v. Robinson, 75 Mo. 192; Railroad v. Engle, 76 Ill. 317. (3) The city extension is void because no quorum of the board of aldermen was present when it was made. On June 14, 1881 Westport became a city of the fourth class and subject to and governed by the general laws concerning such cities, and its functions and officers as a town under its special charter ceased. Revised Statutes, sec. 977; State Constitution, art. 9, sec. 7; Siqur v. Crenshaw, 8 La. Ann. 401; People v. Brown, 83 Ill. 95; Endlich on Statutes, sec. 478. (4) But neither three nor four members constitute a quorum nor have any right to organize or act for a body the full membership of which is fixed at eight, and their action is abortive and amounts to naught. Rex v. Smart, 4 Burrows, 2241; King v. Miller, 6 T. R. (Eng.) 268; Grogan v. San Francisco, 18 Cal. 590; Dillon on Munic. Corp. [4 Ed.], secs. 260, 261, 270, 279, 281, 283, 292; 5 Dane's Abridgment Am. Law, 150; Norton v. Shelby Co., 118 U.S. 426; State ex rel. v. Porter, 113 Ind. 79; Ex parte Willocks, 7 Cowen, 402; In the matter of James W. Beckham, 31 How. Pr. 17; In the matter of Building Sewer, etc., Id. 43; Mills v. Gleason, 11 Wis. 470. (5) The city extension ordinance approved April 14, 1891, is void because it provides a place for the voting in the first and second wards only of Westport, when, as already shown in preceding point, there were then four wards (the four wards that had always existed in Westport). Ruggles v. Collier, 43 Mo. 353; St. Louis v. Clemens, 43 Mo. 395; Thompson v. Boonville, 61 Mo. 282; Stewart v. Clinton, 79 Mo. 603; Westport v. Kansas City, 103 Mo. 141. (6) The ground on which earth was being, and was about to be, deposited, and to prevent the doing of which the temporary injunction was issued, was no part of the alleged highway, but was plaintiff's private property as shown by the evidence, hence upon this ground alone, if for no other, the order of the trial court dissolving plaintiff's temporary injunction must be here reversed.

W. A. Alderson and W. C. Scarritt for respondents.

(1) First. The ordinance of November, 1881, redistricting the territory of the city of Westport into two wards was regularly and validly enacted; and this being correct every contention of appellant against the extension of the city's limits is without merit. State ex rel. Brown v. City of Westport, 116 Mo. 582. That the identical proposition now submitted by appellant was made in case cited, see relator's primary brief in that case, page 67, IV; relator's final brief, page 29, VI; primary brief of respondents, page 26, V. The ordinance of November, 1881, was passed by the de facto aldermen and is valid. Adams v. Lindell, 72 Mo. 189; S. C., 5 Mo.App. 197. Second. Conceding the ordinance of November, 1881, to be invalid, lapse of time and recognition by the public and individuals of the existence of only two wards in Westport from 1881 to 1891, ten years, during which time many obligations were incurred and imposed, will prevent the disorganization of the city's most important territory at this time. State ex rel. Brown v. City of Westport, supra; People ex rel. v. Maynard, 15 Mich. 463; State ex rel. v. Leatherman, 38 Ark. 81; Attorney Gen'l v. Page, 38 Mich. 286; Attorney Gen'l v. Hanchette, 42 Mich. 436; Attorney Gen'l v. Detroit, 5 Am. and Eng. Corp. Cases, 497; Attorney Gen'l v. Detroit, 26 Mich. 263, 267; State ex rel. v. Bailey, 19 Ind. 454; State ex rel. v. Seay, 64 Mo. 89; Jameson v. The People, 16 Ill. 256; State ex rel. v. Gordon, 87 Ind. 171; Rex v. Dawes, 4 Burr. 2023; King v. Stacy, 1 Durn. and E., 1; King v. Parry, 6 Ad. and El., 18; Worley v. Harris, 82 Ind. 493; Black v. Brinkley, 15 S.W. 1030. (2) The dedication of the strip of land in question was complete before the appellant received deed from Jacob Brown. But if not, the appellant's acts constituted dedication, which was made complete by immediate acceptance by the public. By acquiescence he has forfeited all right to the writ of injunction. High on Injunctions, secs. 1260, 1278; Traphagen v. Mayor, 29 N.J.Eq. 206; Morrill on City Negligence, 46; Havana v. Biggs, 58 Ill. 483; Indianapolis v. Kingsbury, 101 Ind. 200, 213; Dill. Mun. Cor. [4 Ed.], 631, 638.

Brace J. Barclay, J., absent.

OPINION

In Banc

Brace, J.

This is a proceeding by injunction, instituted May 13, 1893, to restrain the defendant Fielding from grading a strip of land in front of the plaintiff's premises, as a part of Thirty-ninth street, under a contract with the city of Westport, upon the ground that said strip and street are not within the corporate limits of said city, and that said strip is not within the limits of said street. A temporary injunction was granted. The defendants filed a joint answer, averring that the premises were within the corporate limits of the city of Westport and a part of Thirty-ninth street, and that defendant Fielding was duly performing such work under an ordinance and contract with said city, and also a motion to dissolve the temporary injunction, which motion upon the hearing, being sustained, the plaintiff appeals.

I. By an act of the General Assembly approved February 12, 1857 (Acts 1856, 1857, p. 373), the town of Westport was incorporated. This act was amended by an act approved February 27, 1869 (Acts 1869, p. 158). The town of Westport from the date first aforesaid continued to exist as a municipal corporation under the provisions of this charter until the fourteenth of June, 1881, when proceedings were consummated by which it became organized as a city of the fourth class, under the provisions of section 4385, 2 Revised Statutes, 1879, p. 868, and as such has since continued to exist under the name of the city of Westport.

Section 1 of the special charter designated the place as "the town of Westport." Section 2 enacts that "the powers and duties of said town shall be vested in a mayor and councilmen, * * *"

Section 3 provides that "the mayor of the town shall be chosen by the qualified electors of said town and hold his office for the term of one year" and until his successor is elected and qualified.

Section 4 provides that the town shall be divided into four wards and each ward shall be entitled to elect one councilman, and that "the town council may, by ordinance, alter the wards from time to time; and whenever they may deem it advisable they shall have power to make two additional wards each of which shall be entitled to elect a councilman."

Section 5 provides that "the councilmen shall hold their offices for the term of one year and until their successors are elected and qualified."

Section 22 provides that "the general election of town officers shall be held on the last Saturday in March, each and every year."

The mayor and councilmen in office, under the provisions of this special charter, continued to discharge the functions of those offices after the date aforesaid, when the town became a city of the fourth class, under the name of the "Mayor and Board of Alderman of the City of Westport," until the next spring election held under the law governing cities of the fourth class on the first Tuesday in April, 1882. On the nineteenth of August, 1881, they passed an ordinance providing that "on and after the first Tuesday in April, 1882, the city of Westport shall be divided into two wards," and thereafter the councilmen from each of said wards annually elected constituted the board of aldermen of said city.

It is conceded that the premises of the plaintiff are without the original limits of the town and city of Westport. By virtue of an ordinance passed by the mayor and board of aldermen on the fourteenth of April, 1891, and of an election held in pursuance thereof, the limits of the city were extended so as to include the premises of the plaintiff, and the strip in controversy. This ordinance is set out at length in the opinion in State ex rel. Brown v. Town of Westport (116 Mo. 582, 22 S.W. 888), rendered in division number 2, as is also the proceedings in 1881, which culminated in the organization of the town of Westport as a city of the fourth class. In that case, which was quo warranto, the validity of the organization of the defendant as a city of the fourth class in 1881, and of the extension of the city limits in 1891, were directly attacked, and the validity of both sustained, in an elaborate opinion, in which all the judges of that division concurred. In the present case the validity of the proceedings extending the city limits is again attacked, the position of the plaintiff here taken being, that the acting board of aldermen by whom the ordinances were passed extending the city limits was not a legally constituted board of alderman of the city of Westport and had no authority to pass said ordinances.

The contention of the plaintiff in this case as stated in brief of counsel is: Point III. "The city extension is void because no quorum of the board of aldermen was present." Point IV. "The city extension ordinance...