Peters v. City of St. Louis

• Decision Date: 01 March 1910
• Citation: 125 S.W. 1134,226 Mo. 62
• Parties: PETERS et al., Market Com'rs, v. CITY OF ST LOUIS et al.
• Court: Missouri Supreme Court

125 S.W. 1134

226 Mo. 62

PETERS et al., Market Com'rs, v. CITY OF ST LOUIS et al.

Supreme Court of Missouri, Division No. 1.

March 1, 1910.

1. MUNICIPAL CORPORATIONS (§ 247)—LIMITATION OF POWERS—NOTICE OF.

Those dealing with a municipal corporation of limited powers are chargeable with the knowledge of such limitation.

2. MUNICIPAL CORPORATIONS (§§ 111, 247)— ORDINANCES—ULTRA VIRES ACTS.

If a municipal corporation goes beyond its delegated powers, its acts, and likewise ordinances, are void and bind no one.

3. MUNICIPAL CORPORATIONS (§ 247)—ULTRA VIRES ACTS—DUTY TO PLEAD.

A city, being a public agency, can and should plead the defense of ultra vires.

4. MUNICIPAL CORPORATIONS (§§ 680, 681)— MARKET PLACES—ERECTION IN STREET—ULTRA VIRES ACTS.

A city possessed of the powers of controlling the streets, and also of establishing, controlling, and regulating market places, cannot, in exercise of the latter power, authorize by ordinance the erection of a brick building to be used as a market place in the center of a dedicated street, since, where land has been dedicated to public use as a street, it cannot be diverted from that use.

5. JUDGMENT (§ 704)—RES ADJUDICATA—PARTIES ON SAME SIDE.

A suit was brought against a city and commissioners in charge of a market building erected in a street by virtue of city ordinances, the purpose of which was to declare the ordinances void. The commissioners filed specific answer, and the city filed only a general denial, and the bill was dismissed. Subsequently the commissioners sued the city to restrain the removal of the market place, and the defense of the city was the invalidity of the ordinance. Held, that the judgment in the former suit was not res adjudicata in the latter suit so as to operate as an estoppel on the city to claim the invalidity of the ordinances, since the parties in the prior suit were on the same side of the controversy.

6. ADVERSE POSSESSION (§ 60) — HOSTILE CHARACTER—ERECTION OF MARKET PLACE IN STREET—PRESCRIBED RIGHTS TO.

Where the commissioners in charge of a market building, located in a dedicated street by virtue of city ordinances, have at all times recognized the ordinances, and asserted no rights inconsistent with such ordinance, there can be no question of limitations in a suit by the commissioners to restrain the city from removing the market house on the ground that the ordinances are void as ultra vires.

Appeal from St. Louis Circuit Court; O'Neil Ryan, Judge.

Suit by John W. Peters and others, Market Commissioners, etc., against the City of St. Louis and George P. Weinbrenner, City Marshal. From a judgment dismissing the bill, complainants appeal. Affirmed.

Wm. E. Fisse and Kehr & Tittmann, for appellants. L. E. Walther and B. H. Charles, for respondents.

GRAVES, J.

In the year 1839, by ordinance duly passed, the city of St. Louis authorized, or attempted to authorize, the erection, management, and control of what is and was known as "South Market," a market place in Fifth street of said city. By the ordinance this market place was to be erected in what was then and is now recognized as a public street of the said city. The market house was to be built by funds voluntarily subscribed by individuals, in shares of not less than $25 each. When erected by subscription, as aforesaid, section 1 of the ordinance provided: "Which building, when erected, shall be a public market for the sale of all kinds of marketing and produce which are or may be allowed to be sold in the market regulations of this city, which said market house shall be called and known by the name of the South Market." By section 2 it was provided that the rents should be distributed among the stockholders until they should receive "the full amount by them expended in the erection, superintendence and management of the same, with such sum or sums as they may be required to pay for any necessary repairs thereon, together with an interest of eight per cent. per annum on the whole." This ordinance provided for three commissioners to manage and control the said market place, until the election of others, which election was provided for in the ordinance by an election held by the stockholders. These commissioners were by the ordinance made city officers, and the market place was to be run in conformity to the ordinances of the city. Reports were to be made to the city authorities. Section 6 of said ordinance reads: "That upon the first annual report having been made to the board of aldermen as required by this ordinance, the city authorities, should they deem it expedient, may then or at any time thereafter, cause to be refunded to the commissioners whatever amount may be justly due to the stockholders of said market house, according to the provisions and meaning of this ordinance; or, whenever the stockholders shall be fully refunded by the rents and profits of said market as provided by this ordinance, said commissioners shall relinquish and the mayor and board of aldermen shall resume, for and in behalf of the city, the possession, ownership and government of said market house, for the benefit of the citizens."

Later, in 1856, another ordinance was passed confirmatory of the one just described, and granting further privileges. In other words, more street space was granted, carrying with it additional privileges to the market place. Under these ordinances, money was subscribed, and a market house was erected, 36 feet in width and 375 feet in length, containing about 40 stalls or places of business. Upon either side of this house was about 30 feet of the street. In other words, the public highway at this point was nearly 100 feet in width, and the market place occupied 36 feet, practically in the middle thereof.

The present suit is one in equity, in which the present commissioners of said South Market seek to enjoin the city and its executive officer, the city marshal, from removing the house built as aforesaid. The ordinances above are pleaded, and the fact of the subscription to a fund for the purpose of building the market place is pleaded, and, in addition, it is charged that there are 331 shares of stock outstanding, upon which there is yet due $12 per share, and an indebtedness of more than $4,000 against said market place, contracted by the commissioners. Taking it altogether, it would require some $8,000 to liquidate the stock and debt of the concern. The defendants by their answer pleaded that there was no power in the city to pass the two ordinances aforesaid, as well as other defenses. The reply raises, among other issues, a plea of res adjudicata. We shall not at this point go into detail either as to all the matters raised by answer or reply, but leave such matters to be noted as far as may be required in the course of the opinion. From the evidence it appears that the market place has not done much business in recent years. At or about the date of trial, only two or three stalls were used for market purposes, and, for some time prior thereto, the greater portion of the building was being used for mere storage purposes. It also appears that the property was becoming more involved in debt as the years pass. Such is evident from the last reports made. This sufficiently outlines the case for a discussion of the questions of law raised.

1. The questions in this case can be reduced to a minimum, notwithstanding the numerous pleas in the answer and reply. In the first place, the validity of these two ordinances must be passed upon and determined. The question is: Can a city possessed with the power of controlling the streets, and also clothed with the power of establishing, controlling, and regulating market places, exercise such powers to the extent of appropriating a large portion of a street for a brick building, to be used for a market place? An answer to this query eliminates one question in this case. Those dealing with a municipal corporation of limited powers must deal with a knowledge of such limitations. Municipal corporations are but public agencies with limited rights and powers, and as such must be so recognized by all parties dealing therewith. If such corporation go beyond its delegated powers, its acts are void. If it pass ordinances which go beyond such delegated powers, the ordinances are void and bind no one. The city, being a public agency, can and should plead that its acts were ultra vires and void, and bind no one. This because the real party is the general public and not the officials who have been derelict in duty when the unlawful act was committed. By the two ordinances pleaded, plaintiffs claim what rights, if any, they have. The pleadings cannot be read...