State ex rel. Town of Olivette v. American Tel. & Tel. Co., 44117

• Decision Date: 13 December 1954
• Docket Number: No. 2,No. 44117,44117,2
• Citation: 273 S.W.2d 286
• Parties: STATE of Missouri ex rel. The TOWN OF OLIVETTE, a Municipal Corporation; Ray G. Mills, Clarence A. Miller, Milton Lief, Charles H. Spoehrer, and Thomas A. Grady, Constituting the Board of Trustees of the Town of Olivette; Walter Brockman, Elmer Brockman, Ewald Jacob, Ferguson B. Geers, John Heger, E. W. Baker and Carl Mueller (Plaintiffs), Respondents, v. The AMERICAN TELEPHONE AND TELEGRAPH COMPANY, a Corporation; Thomas Dunne, Jas. H. J. McNary, Eugene Buechler, Jas. A. Singer, Frank A. Martini, Harold L. Carey and Charles R. Skow, Constituting the St. Louis County Council; Frank C. Roe, Director of Public Works, St. Louis County; and Luman F. Matthews, County Supervisor of the County of St. Louis (Defendants), Appellants
• Court: Missouri Supreme Court

Page 286

273 S.W.2d 286

STATE of Missouri ex rel. The TOWN OF OLIVETTE, a Municipal Corporation; Ray G. Mills, Clarence A. Miller, Milton Lief Charles H. Spoehrer, and Thomas A. Grady, Constituting the Board of Trustees of the Town of Olivette; Walter Brockman Elmer Brockman, Ewald Jacob, Ferguson B. Geers, John Heger E. W. Baker and Carl Mueller (Plaintiffs), Respondents, v. The AMERICAN TELEPHONE AND TELEGRAPH COMPANY, a Corporation Thomas Dunne, Jas. H. J. McNary, Eugene Buechler, Jas. A. Singer, Frank A. Martini, Harold L. Carey and Charles R. Skow, Constituting the St. Louis County Council; Frank C. Roe, Director of Public Works, St. Louis County; and Luman F. Matthews, County Supervisor of the County of St. Louis (Defendants), Appellants.

No. 44117.

Supreme Court of Missouri, Division No. 2.

Dec. 13, 1954.

Fred M. Joseph, Chaim H. Zimbalist, Clayton, Peter C. Elvis, Kansas City, for appellant American Tel. & Tel. Co.

John J. McAtee, St. Louis County Counselor, Clayton, Herbert C. Funke, Asst. County Counselor, Maplewood, for appellants Thomas Dunne et al.

Carroll J. Donohue, St. Louis, Robert O. Hetlage, Clayton, Salkey & Jones, St. Louis, for plaintiffs-respondents.

BARRETT, Commissioner.

The St. Louis County Council, after application to the St. Louis County Planning Commission, granted the American Telephone and Telegraph Company a special permit to erect and operate a radio relay tower on Lot 5, Grandview Subdivision, an unincorporated area in St. Louis County. The town of Olivette through its board of trustees and seven individuals who own property and reside in the vicinity of the proposed tower instituted this action to permanently enjoin the American Telephone and Telegraph Company from erecting the tower and to compel the St. Louis County Council and its County Supervisor to revoke and cancel the special permit. After a hearing the Circuit Court of St. Louis County found that the special permit issued by the St. Louis County Council was void and enjoined the American Telephone and Telegraph Company from erecting the tower. The American Telephone and Telegraph Company filed its notice of appeal to the St. Louis Court of Appeals and the County Council, the County Supervisor and the Director of Public Works filed their notice of appeal to the Supreme Court. The appeal was lodged in the St. Louis Court of Appeals and that court transferred the appeal to this court for the reason that the St. Louis County Council had appealed to this court.

Nevertheless, as indicated upon oral argument, the question of this court's jurisdiction remains, for if in fact jurisdiction of the appeal is not properly here this court has neither the right nor the power, Dietrich v. Brickey, 327 Mo. 189, 37 S.W.2d 428, upon direct appeal, initially, to determine the merits of the controversy, despite the fact of the transfer by the Court of Appeals upon the reason stated in the order. State to Use of Nee v. Gorsuch, 303 Mo. 295, 260 S.W. 455.

The appellants Dunne, McNary, Buechler, Singer, Martini, Carey and Skow 'constituting the St. Louis County Council,' Roe, Director of Public Works, and Matthews, County Supervisor, assert, because St. Louis County adopted a special 'Home Rule' charter, Const.Mo. Art. 6, Sec. 18, V.A.M.S. and the county acquired all the powers heretofore vested in county courts and county offices, and because the appellants perform the functions of county judges and officers, that the action and appeal 'in effect' involve St. Louis County and, therefore, jurisdiction of the appeal is in this court. Const.Mo. Art. 5, Sec. 3.

St. Louis County, as a political subdivision of the state, may be interested in the outcome of this litigation, but the county as such is not in point of fact a party to the suit and to this record. Odell v. Pile, Mo., 260 S.W.2d 521; Fort Osage Drainage Dist. v. Jackson County, Mo.App., 264 S.W.2d 792. A county, including St. Louis County (either prior to or since its new charter), may become a party to an action, but suit is instituted against a county as such in its official name and character and process making the county a party in its capacity as a political subdivision of the state is had by service of summons upon the county clerk. V.A.M.S. Sec. 506.150; Weil v. Greene County, 69 Mo. 281. Under the new charter St. Louis County has a county clerk, but he is not a party and it is not claimed that there was service of process upon him in his official capacity or for the purpose of making St. Louis County a party to the action. The county may be the real party in interest but if the county is not in fact a party to the litigation jurisdiction of the appeal is not in this court. Perkins v. Burks, 336 Mo. 248, 78 S.W.2d 845; State ex rel. Walker v. Locust Creek Drainage Dist., Mo., 58 S.W.2d 452; State ex rel. Cornelius v. McClanahan, Mo., 273 S.W. 1059. The parties to this appeal, particularly the County Council and the County Supervisor, perform the functions heretofore performed by judges of the county courts, and while they are parties to this action and this appeal in their official capacities, the fact does not make the county a party in the constitutional or jurisdictional sense upon their direct appeal to this court. County...