State ex rel. City of St. Louis v. O'Malley

• Decision Date: 20 December 1938
• Docket Number: 35929
• Parties: State of Missouri at the relation of the City of St. Louis, a Municipal Corporation, Relator, v. Frank C. O'Malley, Judge of the Circuit Court of the City of St. Louis
• Court: Missouri Supreme Court

122 S.W.2d 940

343 Mo. 658

State of Missouri at the relation of the City of St. Louis, a Municipal Corporation, Relator, v. Frank C. O'Malley, Judge of the Circuit Court of the City of St. Louis

No. 35929

Supreme Court of Missouri

December 20, 1938

Provisional rule made absolute.

Edgar H. Wayman, John T. Hicks and Francis J Sullivan for relator.

(1) Prohibition is the proper remedy to correct the wrong complained of for the reason that the circuit court exceeded its jurisdiction and the remedies by appeal or writ of error are not adequate to meet the exigencies of the situation. State ex rel. v. Hall, 17 S.W.2d 935; Railroad Co. v. Wear, 135 Mo. 257, 36 S.W. 357; State ex rel v. Miller, 316 Mo. 384, 289 S.W. 898; State v Elkins, 130 Mo. 109, 30 S.W. 333; State ex rel. v. Riley, 276 S.W. 886. (2) Section XXI of the charter is the only method of procedure under which property can be condemned and only by the city of St. Louis. Art. XXI, St. Louis Charter; Tremayne v. St. Louis, 6 S.W.2d 943. (3) Special charters supersede the State law where the two conflict as to mere municipal regulation and that the condemnation proceedings to acquire land for streets, parks and waterworks, sewers and the like, clearly fall within municipal regulations. State ex rel. v. Lucas, 317 Mo. 263, 296 S.W. 784. (4) Ordinance 40349, relied on by plaintiff, is not a change of grade ordinance, but an ordinance authorizing the relator to apply for the allotment of Federal funds for highway construction within the city of St. Louis. Ordinance No. 40349. (5) If plaintiffs are damaged by a change of grade, where no condemnation suit is brought, their remedy is under Section 7567, Revised Statutes 1929, and not Section 7222, Revised Statutes 1929. Secs. 7222, 7567, R. S. 1929; Tremayne v. St. Louis, 6 S.W.2d 940.

Francis R. Stout for respondent.

(1) The statute laws and Constitution of Missouri provide for the bringing of a condemnation suit by an individual to recover damages for the change of grade of a street, while the charter of the city of St. Louis does not either provide for such a proceeding or prohibit such a proceeding. Sec. 21, Art. II, Mo. Const.; Sec. 7222, R. S. 1929; Tremayne v. St. Louis, 6 S.W.2d 935, 320 Mo. 120; St. Louis v. Lang, 131 Mo. 412, 33 S.W. 54; St. Louis v. Wallrath, 239 S.W. 110, 293 Mo. 385. (2) The plaintiffs' motive in bringing a condemnation proceeding rather than a tort action to recover their damage is immaterial, and the difference in the method selected by plaintiffs may materially effect the amount of recovery. Charter, City of St. Louis, amended April, 1933, sec. 5. (3) The provisions of Article X, Chapter 38, entitled "Miscellaneous Provisions Applicable to All Cities, Towns and Villages," are applicable to the city of St. Louis. St. Louis v. Meyer, 84 S.W. 914, 185 Mo. 583; St. Louis v. Bernard, 249 Mo. 51, 155 S.W. 396; Heman v. Flad, 108 Mo. 614, 18 S.W. 1128; Vrooman v. St. Louis, 88 S.W.2d 196; Tremayne v. St. Louis, 6 S.W.2d 935, 320 Mo. 120. (4) If the charter of the city of St. Louis attempted to take away the right of an individual property owner to bring a lawsuit provided by the laws and Constitution of Missouri the charter provision would be unconstitutional. Tremayne v. St. Louis, 320 Mo. 120, 6 S.W.2d 935; State v. Kinsey, 282 S.W. 437, 314 Mo. 80; Heman v. St. Louis, 213 Mo. 538, 112 S.W. 259; Abercrombie v. Kansas City, 147 Mo.App. 539, 131 S.W. 131; Faust v. Pope, 132 Mo.App. 294, 111 S.W. 878; Powell v. Excelsior Springs, 136 Mo.App. 121, 120 S.W. 108. (5) The city cannot lawfully change the grade of a street without passing an ordinance recommended by the Board of Public Improvements. Charter, City of St. Louis, amended April, 1933, Art. XXI, Sec. 1; City v. Lang, 33 S.W. 54, 131 Mo. 412; American Tobacco Co. v. Mo. Pac. Ry., 157 S.W. 553, 247 Mo. 374.

OPINION

Hays, J.

This is an original proceeding in prohibition by which the relator seeks to restrain respondent as judge of division number one of the Circuit Court of the City of St. Louis from further proceeding in an action there pending against the City, instituted by Eugene Schmid et al. for the assessment, by commissioners, of consequential damages to their property abutting upon Ivory Avenue in said city as the result of lowering the grade of said avenue.

To the last amended petition of said property owners the City filed a demurrer setting up that the circuit court was without jurisdiction of the subject matter of the proceeding and that the lack of jurisdiction is apparent on the face of said petition. The demurrer was overruled by the respondent circuit judge, and upon him, shortly after, our preliminary rule to show cause was issued herein. Respondent demurred thereto. So that, the sufficiency of said petition, as framed, to confer jurisdiction is the question for decision.

In substance the petition is as follows:

The parcel of land here involved, improved with concrete and brick structures suitable for various industrial uses, fronted and abutted, for a distance of 114 feet upon Ivory Avenue in St. Louis which formed a continuation of State Highway No. 61, and was crossed at that point by tracks of the Missouri Pacific Railway Company. The change in the street or highway was a grade separation, brought about by excavating the street so as to make it an "underpass" at that intersection. The underpass, it is alleged, was so constructed in front of said parcel and the buildings upon it as to lower the previously existing grade an average depth of ten feet. The change was made without the property owners' consent, and rendered the property valueless and damaged it to the extent of $ 60,000.

This (it is averred), pursuant to Ordinance No. 40349, passed by the City and approved by the mayor, and to plans proposed by the State Highway Department which were approved by the Board of Public Service; so that the change of grade was made under the control and direction of the City and in conformity with said ordinance and the Highway Commission's plans and specifications.

In substance the prayer is that the court proceed as in the manner provided by the Constitution, statutes, and laws of the State to assess and ascertain the amount of plaintiffs' damages and appoint commissioners to estimate and determine same and that plaintiffs be awarded a judgment against defendant City therefor.

The ordinance discloses that its object was to authorize and direct the mayor and comptroller to make application for the allotment of Federal funds for highway construction within the city limits and to execute an agreement in behalf of the City to maintain a proposed and desirable underpass (that above described) to afford Federal Highway Sixty-one free and uninterrupted passage to the streets of St. Louis. The City therein agreed that if such project were approved by the Secretary of Agriculature, and, if so approved, the underpass were constructed by the Highway Department and said Secretary of Agriculture, the City thereafter at its own cost and expense would maintain it and make ample provision each year for such maintenance. The City assumed the duty of securing the land necessary for the widening of Ivory Avenue. The City Counselor took no action, under said ordinance or otherwise for appointment of commissioners to assess damages and benefits or other action. Nor was any benefit district defined by the Board of Public Service or mentioned in the ordinance. Accepting the City's said offer as made, the State Highway Commission undertook and completed said underpass as planned.

The action as brought by the property owners declaredly was predicated upon Section 21 of Article II of the Constitution of the State and Section 7222 of the Revised Statutes of 1929.

Section 7222 in substance provides that in all cases where the proper authorities in any city of this State have graded or regraded or may hereafter grade or regrade or change the grade of any street or alley, causing damage to private property for public use, within the meaning of Section 21 of Article II of the Constitution, without the consent of the owners of such property, commissioners may be appointed to estimate and determine the benefits, if any, resulting to and the damages, if any, sustained by the property. The action may be instituted by the city authorities, or by any property owner whose property has been or is likely to be damaged by the public improvement. If instituted by the city authorities a benefit district must be defined.

This statute is derived from Laws of 1885, page 47, amended in Laws of 1887, page 37, carried down through all the subsequent general revisions of the statutes, as, respectively, Section 1815 in 1889, Section 6109 in 1899, Section 9553 in 1909, Section 8676 in 1919, and in 1929 appears as Section 7222.

The respondent cites in support of his contention that the action instituted by the property owners was properly founded upon said Section 7222, the cases City of St. Louis v. Lang, 131 Mo. 412, 33 S.W. 54, City of St. Louis v. Wallrath et al., 293 Mo. 385, 239 S.W. 110, and City of Albany v. Gilbert, 144 Mo. 224, 46 S.W. 157.

City of St. Louis v. Wallrath et al., supra, was a suit to enjoin some one hundred and fifty property owners from maintaining actions against the city for damages sustained by their properties and caused by a change made by the city in the grade of a street upon which their properties abutted. There was then and previously pending in the circuit court a proceeding brought by the city pursuant to ordinance and the city charter for the ascertainment of damages and assessments of benefits; but, although the work of regrading had been completed, final judgment in condemnation had not been entered, nor had compensation...