State ex rel. White v. Eiffert
| Decision Date | 17 July 1989 |
| Docket Number | No. 16157,16157 |
| Citation | 774 S.W.2d 152 |
| Parties | STATE of Missouri ex rel. Billie Jean WHITE, Trustee, Fiocchi of America, Inc., Mary Cynthia Neale, Gary Bingham and Helen Deke, Relators, v. Honorable James EIFFERT, as Judge of the Circuit Court of Christian County, Missouri, Respondent. |
| Court | Missouri Court of Appeals |
George M. Johnson, Stockard, Andereck, Hauck, Sharp & Evans, Springfield, for relators.
Rex C. McCall, Springfield, for respondent.
This is an original proceeding in prohibition wherein the relators sought to prohibit the respondent, as Judge of the Circuit Court of Christian County, from adjudicating a condemnation proceeding instituted by the City of Springfield, Missouri, a constitutional charter city (hereinafter the City). The action was commenced against the respondent judge and his predecessor in office, Honorable James C. Crouch. Judge Crouch retired as Judge of the Circuit Court of Christian County, and Judge Eiffert was automatically substituted as respondent under the provisions of Rule 52.13(d), V.A.M.R. 1 We may further orient the parties and perhaps clarify the opinion by noting: 1) that the proceeding was originally instituted in the alternative as an application for an alternative writ of mandamus or a preliminary writ of prohibition. Such an alternative application is permissible in some circumstances, see State ex rel. Boll v. Weinstein, 365 Mo. 1179, 295 S.W.2d 62 (banc 1956), but despite the confusing language of the preliminary order, this court took and considered the application as a petition for a writ of prohibition and the cause is now solely before the court as such a proceeding; 2) we take jurisdiction of the cause as an original proceeding, and our jurisdiction is concurrent with that of the Supreme Court. Mo. Const. Art. V, § 4; State ex rel. Jordon v. Mehan, 597 S.W.2d 724, 725-26 (Mo.App.1980); State ex rel. City of Mansfield v. Crain, 301 S.W.2d 415, 418 (Mo.App.1957).
The City filed a petition in condemnation in the Circuit Court of Christian County, averring that it is a constitutional charter city, that it owns and operates facilities for the generation, transmission and distribution of electricity, water and natural gas, and that it has the right to exercise the power of eminent domain pursuant to the terms of its charter. It was further alleged that the defendants are individuals or corporations owning or claiming some interest in the lands sought to be condemned.
The City averred that it proposes to construct, operate and maintain overhead electrical lines extending from its James River Power Station in Greene County to its existing Clay Substation along the following courses and distances:
"[F]rom City Utilities' James River Power Station in Greene County, Missouri, generally south to a point approximately 1/2 mile south of the Greene and Christian County line, then generally east to a point approximately 1/4 mile east of U.S. 65 Highway, then generally north to a point approximately 1/4 mile south of the Greene and Christian County line, then generally east approximately 1 mile, then generally north to a point approximately 1/2 mile north of U.S. 60 Highway, then generally northwest to U.S. 65 Highway, then generally north to City Utilities' existing Clay Substation in Greene County...."
Further allegations of the petition indicate that the City proposes to condemn an easement across the relators' land such as to permit it to maintain high voltage transmission lines over and across the relators' property. The relators filed a motion to dismiss upon the ground that the petition failed to state a claim upon which relief could be granted. The motion was granted; the City amended its petition (it had originally sought to condemn even more extensive easements) and the trial court entered an "order of condemnation" and an order appointing commissioners. Thereafter this proceeding for original remedial relief was commenced in this court. We conclude that on the facts presented, our preliminary rule was improvidently granted and should be quashed.
Preliminarily, we note that the City has complained that the relators have not complied with the procedural rules governing proceedings in prohibition. We agree. The petition does not contain the "statement of facts" contemplated by Rule 97.03; for the most part it is composed of conclusional allegations. Little or no effort has been made to furnish the court with copies of those documents "essential to an understanding of the matters set forth in the petition" as required by the same rule. Nevertheless, the preliminary writ has issued, the case has been briefed and submitted and this court may elect to decide the case on its merits even though the proper procedure has not been followed. State ex rel. McClellan v. Kirkpatrick, 504 S.W.2d 83, 85, n. 1 (Mo.banc 1974); State ex rel. Ellis v. Schroeder, 663 S.W.2d 766, 769 (Mo.App.1983); State ex rel. St. Joseph Light & Power Company v. Donelson, 631 S.W.2d 887, 892 (Mo.App.1982). In the exercise of discretion, we have undertaken to decide the case on its merits.
The relators argue that for three reasons, the Circuit Court of Christian County acted without jurisdiction or in excess of its jurisdiction. They maintain that the City has no authority to condemn property located outside the limits of the county in which it is located. To support this proposition, the relators cite § 82.240, State ex rel. Schwab v. Riley, 417 S.W.2d 1 (Mo.banc 1967), and an Opinion of the Attorney General of Missouri dated November 21, 1967.
Bolstering their first argument, the relators concede that that part of the land involved which lies in Christian County has been annexed to the City by ordinance, but they assert that the annexation "was not properly done in compliance with the laws of the State of Missouri and the charter of Springfield, and therefore creates no presence of the City of Springfield, in Christian County, Missouri." We are cited to § 71.012, § 71.015, § 2.16(18) of the City's charter and Gates v. City of Springfield, 744 S.W.2d 487 (Mo.App.1988).
As a third contention, the relators maintain the City "failed to prove that an offer had been made to Relators Gary Bingham and Mary Cynthia Neale for their property as required by law." We are cited to State ex rel. State Highway Commission v. Dockery, 300 S.W.2d 444 (Mo.1957). We shall address each contention briefly.
We first consider the relators' argument that the City has no authority to condemn land outside Greene County for the purpose of erecting and maintaining high-line transmission facilities.
In its charter, the City purports to confer extensive powers of eminent domain upon its Board of Public Utilities. Article XVI, Section 18 of the City's charter provides:
"The board of public utilities shall have the right of eminent domain to the same extent and to be exercised in the name of the city in the same manner as is now or may hereafter be granted by the statutes of Missouri to any privately owned utility."
Section 82.240, which applies to constitutional charter cities, reads as follows:
"It shall be lawful for any such city to make provision in its charter, or by amendment thereof, to acquire and hold by gift, devise, purchase or by the exercise of the power of eminent domain by condemnation proceedings, lands for public use, either within the corporate boundaries of such city or outside of such corporate boundaries, and within the territorial limits of the county in which such city may be situated, for public parks, cemeteries, penal institutions, hospitals, rights-of-way for sewers, or for any other public purpose, and to provide for managing, controlling and policing the same." (Emphasis ours.)
We do not undertake to discuss the effect of Mo. Const. Art. VI, § 19(a) beyond noting what was said in Cape Motor Lodge v. City of Cape Girardeau, 706 S.W.2d 208, 211 (Mo.banc 1986):
(Emphasis added.)
The court went on to address possible limitations on powers granted to constitutional charter cities by those statutes which constitute grants of power. The court suggested, as we read the opinion, that a determination should be made whether the statute acts as both an authorization and a limitation upon the charter city's power to act. Cape Motor Lodge v. City of Cape Girardeau, 706 S.W.2d at 212.
By any standard proposed since Mo. Const. Art. VI, § 19(a) was amended in 1971, Article XVI, Section 18 of the City's charter is in conflict with the provisions of § 82.240. The charter allows the City to exercise the power of eminent domain without regard to the political subdivision in which the land to be condemned is located. When everyday rules of statutory construction are applied to § 82.240, the words "and within the territorial limits of the county in which such city may be situated" clearly qualify the last antecedent phrase, which is "or outside of such corporate boundaries." Bartley v. Special School District of St. Louis County, 649 S.W.2d 864, 869 (Mo.banc 1983); Citizens Bank & Trust v. Director of Revenue, 639 S.W.2d 833, 835 (Mo.1982). Any local enactment or resolution approving the construction of high-line...
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