The City of Cape Girardeau v. Houck

• Decision Date: 02 July 1895
• Citation: 31 S.W. 933,129 Mo. 607
• Parties: The City of Cape Girardeau, Appellant, v. Houck et al
• Court: Missouri Supreme Court

31 S.W. 933

129 Mo. 607

The City of Cape Girardeau, Appellant, v. Houck et al

Supreme Court of Missouri, Second Division

July 2, 1895

Appeal from Madison Circuit Court. -- Hon. James D. Fox, Judge.

Reversed and remanded.

S. M Green for appellant.

(1) "The necessity, expediency, or propriety of exercising the power of eminent domain, and the extent and manner of its exercise, are questions of general public policy and belong to the legislative department of the government. They have nothing to do with the question of what constitutes a public use." Lewis on Eminent Domain, sec. 162; State ex rel. v. Engelmann, 106 Mo. 628; Dickey v Tunison, 27 Mo. 373; County Court v. Griswold, 58 Mo. 189; City of Kansas v. Baird, 98 Mo. 218; 2 Dillon, Mun. Cor. [4 Ed.], sec. 601. These questions are political in their nature and not judicial. Lewis on Eminent Domain, sec. 239; 2 Dillon on Mun. Cor. [4 Ed.], secs. 589 600; 4 Leading Cases in the American Law of Real Property (Shars-wood & Budd), p. 447 and cases cited. An inspection of the record is sufficient to show that the use is a public one and is manifest from the record. State ex rel. v. Engelmann, 106 Mo. 628; Lewis on Eminent Domain, secs. 166, 238; Savannah v. Hancock, 91 Mo. 54; City of Kansas v. Baird, 98 Mo. 218; Boom Co. v. Patterson, 98 U.S. 403; 2 Dillon, Mun. Cor. [4 Ed.], sec. 600.

M. R. Smith for respondents.

(1) Appellant, in the condemnation of real estate for public use, could act only by ordinance. The charter so provided, and that was its warrant of authority. Acts of 1872, sec. 1, art. 7, p. 340; Trenton v. Coyle, 107 Mo. 196; Cape Girardeau v. Fougeu, 30 Mo.App. 558; Trenton v. Clayton, 50 Mo.App. 537; St. Paul v. Stultz, 22 N.W. 634. (2) The ordinance must conform to the charter, and, unless it does, it is void. Kiley v. Oppenheimer, 55 Mo. 375; Thompson v. Boonville, 61 Mo. 283; Stewart v. Clinton, 79 Mo. 610; Rumsey Mfg. Co. v. Schell City, 21 Mo.App. 181; Trenton v. Coyle, 107 Mo. 196. (3) It is clear that under the pleadings and evidence, in view of articles 6 and 7 of the city charter, also in evidence, the court could not do otherwise than sustain the demurrer, for the reason that no method in accordance with the charter had been established by proper ordinance, and without such ordinance the court had no power or jurisdiction to act. The ordinance must conform to the charter. St. Louis v. Speck, 67 Mo. 406, 409; St. Louis v. Richason, 76 Mo. 470; City of Kansas v. Baird, 98 Mo. 220. (4) There must be a strict compliance with all the requirements of the statute or charter, as in this case in proceedings to take property for public use, and that strict compliance must appear upon the face of the record, or they are void. Leach v. Cargill, 60 Mo. 317; Ellis v. Railroad, 51 Mo. 200; State ex rel. v. St. Louis, 67 Mo. 117; Harris v. Hunt, 97 Mo. 547; St. Louis v. Bell Telephone Co., 96 Mo. 628.

Gantt, P. J. Burgess and Sherwood, JJ., concur.

OPINION

Gantt, P. J.

This is an appeal from the Madison circuit court. On May 4, 1891, the said city commenced a proceeding to condemn an alley nine and one third feet wide through the land of Mrs. Houck lying between Themis and Independence streets in said city. Cape Girardeau conducts its municipal affairs under a special charter, approved March 29, 1872. Session Laws of Mo. 1872, p. 328.

The petition, omitting caption, is as follows:

"Plaintiff for cause of action says that it is a public municipal corporation established under and by virtue of acts of the general assembly of the state of Missouri, with power and authority to sue and be sued, to plead and be impleaded, to defend and be defended in all courts of law and equity and in all action whatsoever, with full power and authority to establish, open, widen streets and alleys for public purposes within the jurisdictional limits of said limits of said city.

"That for many years past there has been a public alley partially opened running south from Themis street, toward, but not reaching, Independence street, through the block bounded on the west by Spanish, on the south by Independence street, on the east by Main street and on the north by Themis street; that said alley was finished through said block, except through the land of Mrs. Mary H. G. Houck and Louis Houck, husband of said Mrs. Mary H. G. Houck, hereinafter fully described, leaving unfinished a part of said alley at the south end of the alley as far as finished the following described grounds: From the northwest corner of Main and Independence streets run westwardly with the north line of Independence street one hundred and three (103) feet to the place of beginning, thence northwardly parallel with Main street one hundred (100) feet to the south end of an alley, thence westwardly parallel with Independence street nine (9) and thirty-three hundredths (33-100) feet, thence southwardly parallel with Main street one hundred (100) feet to the north line of Independence street, thence eastwardly with the north line of Independence street nine (9) and thirty-three hundredths (33-100) feet to the place of beginning, said strip being at and on the south end of said alley; that said strip of ground belongs to the defendants herein, and is in said block bounded as aforesaid in range C in the city of Cape Girardeau.

"That heretofore, to wit, on the day of , 1890, a majority of the property holders affected by said alley petitioned the mayor and council to open said alley from Themis street on the north to Independence street on the south, and the mayor and council sought to obtain the consent of defendants to the opening of said alley through their property as aforesaid, but failed to do by reason of the refusal of said owners to relinquish their title to said ground for said purpose of opening said alley as aforesaid. That the opening of said alley has been and is now a public necessity.

"That on or about the day of March, 1891, the mayor and council passed an ordinance for the purpose of authorizing condemnation proceedings of ground for said alley in words and figures as follows:

"'An ordinance providing for the condemnation, opening and establishment of an alley in range C from Independence street to Themis street in the city of Cape Girardeau, Missouri.

"'Whereas, a majority of the property owners on the alley as designated on the city map in range C from Independence street to Themis street have petitioned the mayor and council that the said alley be established and opened as an alley for public uses and purposes, and

"'Whereas, the mayor and council have been unable to obtain from the owners, Mrs. M. H. G. Houck and Louis Houck, a relinquishment of sufficient ground in range C hereinafter described and as shown by the city map for the purpose of fully opening said alley for such purposes as aforesaid, and

"'Whereas, the mayor and council deem it necessary and expedient that said alley be opened and established for public uses; therefore,

"'Be it ordered by the mayor and council of the city of Cape Girardeau, as follows:

"'Section 1. That the city attorney be, and he is hereby authorized, empowered, and requested to institute condemnation proceedings in the recorder's court of the city of Cape Girardeau, Missouri, under the provisions of the charter of said city and section 50, of ordinance number 363, being an ordinance entitled an ordinance regulating the practice and pleadings in the recorder's court, approved April 29, 1882, for the purpose of condemning, opening and establishing to public use as an alley a certain piece of ground in range C as shown by the city map, running north and south and described as follows: From the northwest corner of Main and Independence streets run westwardly with the north line of Independence street one hundred and three (103) feet to the place of beginning, thence northwardly parallel with Main street one hundred (100) feet to the south end of an alley, thence westwardly parallel with Independence street nine and thirty-three hundredths (9 33-100) feet, thence southwardly parallel with Main street one hundred (100) feet to the north line of Independence street, thence eastwardly with the north line of Independence street nine and thirty-three hundredths (9 33-100) feet to the place of beginning, said strip of ground being of and on the southern part of said alley and belonging to Mrs. M. H. G. Houck and Louis Houck, and such condemnation proceedings shall, in all respects, conform to the requirements of the charter and ordinances relating to condemnation proceedings to the end that said alley, when so condemned, shall be established and open to public use.

"'Section 2. This ordinance shall be in force and take effect from and after its passage.

(Attest)

"'P. A. Hoch, Register.'

"'The above and foregoing ordinance having been presented to the mayor for his approval and the same not being returned with his approval within three days, said ordinance became a law, notwithstanding, under the charter of the city.

(Attest)

"'P. A. Hoch, Register.

"'March 11, 1891.'

"That said ground is necessary for the opening of said alley as aforesaid.

"Wherefore, the premises considered, plaintiff prays that the ground hereinbefore set out and described be condemned to public uses and purposes as an alley as aforesaid in accordance with the charter and ordinances in that behalf, and that the same be opened for public uses and purposes as an alley as aforesaid."

To which defendants answered as follows:

"Now at this day come defendants and still protesting against the jurisdiction of the recorder and this proceeding had, and without waiving any of their rights herein, for answer to plaintiff's petition says: They admit that they own...