State ex rel. Gove v. Tate

• Court: Missouri Supreme Court
• Writing for the Court: SEILER
• Citation: State ex rel. Gove v. Tate, 442 S.W.2d 541 (Mo. 1969)
• Decision Date: 14 July 1969
• Docket Number: No. 54151,54151
• Parties: STATE ex rel. Clem C. GOVE, et al., Relators, v. Honorable Joseph T. TATE, Judge, Respondent.

Page 541

442 S.W.2d 541

STATE ex rel. Clem C. GOVE, et al., Relators, v. Honorable Joseph T. TATE, Judge, Respondent.

No. 54151.

Supreme Court of Missouri, En Banc.

July 14, 1969.

Charles H. Howard, Hendren & Andrae, Jefferson City, for relators.

Lowell McCuskey, Linn, Ralph H. Duggins, Jefferson City, for respondent.

SEILER, Judge.

This is an original action in prohibition. The question is whether the respondent judge would be exceeding his jurisdiction if he proceeds to enter an order of condemnation in an action brought by the city of Linn, a city of the fourth class, to acquire an easement across the proeprty of relators for the construction, maintenance and operation of a sewer line, approximately four feet beneath the surface.

The answer is yes, for two reasons: First, on the record before us, there is no ordinance authorizing the city to proceed with the condemnation action. There is only a resolution which, although signed by the mayor and containing a statement of the ayes and nays is not in the form of a bill and was not read three times before passae. It does not, therefore, meet the requirements of Sec. 79.130, RSMo 1959, governing cities of the fourth class, as to how an ordinance is to be passed. It is a resolution, not an ordinance, Julian v. Mayor et al. (Mo.Sup.) 391 S.W.2d 864, 867; City of Cape Girardeau v. Fougeu, 30 Mo.App. 551, 556; City of Salisbury v. Nagel (Mo.App.) 420 S.W.2d 37, 43; see also discussion by Hyde, J., in City of Hannibal v. Winchester (Mo.Sup. banc) 391 S.W.2d 279, at 291 and by Storckman, C.J., in the same case, 391 S.W.2d at 292; also 5 McQuillan, Municipal Corporations (3rd Ed.) Sec. 15.02, pp. 51--56.

A resolution '* * * will not suffice when action on the part of a municipality is required to be taken by ordinance * * *.', Julian v. Mayor et al., supra, 391 S.W.2d l.c. 867. Action by the city of Linn, seeking to establish an easement over private property for a sewer and calling for condemnation to obtain it, is legislative in character, State ex rel. Wilkinson v. Edwards (banc) 305 Mo. 431, 266 S.W. 127, 129; State ex rel. State Highway Commission v. Gordon (banc) 327 Mo. 160, 36 S.W.2d 105, 106, and must be taken by ordinance, McGrew v. Granite Bituminous Paving Co., 247 Mo. 549, 155 S.W. 411, 416; City of Tarkio v. Clark, 186 Mo. 285, 85 S.W. 329, 331; City of Jackson v. Houck, 226 Mo.App. 835, 43 S.W.2d 908, 909; Bigelow v. City of Springfield, 178 Mo.App. 463, 162 S.W. 750, 753--754; Hisey v. City of Charleston, 62 Mo.App. 381, 384; Sec. 79.110, RSMo 1959; Sec. 88.670, subd. 1(2), RSMo 1959.

Second, the condemnation action is an attempt to appropriate private property for private, not public, use. At the hearing on the motion to dismiss in the condemnation case, the evidence showed the sewer line ran 75 to 80 feet across relators' land to the property of one James J. Wolfe and wife on the east, where Wolfe had built a duplex. Ordinarily, Wolfe would have run a private line over his own property from the duplex to the existing main public sewer line in Grant Street, which ran in front of his and relators' property on the south. However, because Wolfe's property was lower than Grant Street, he...