Waddingham v. City of St. Louis

• Decision Date: 31 March 1851
• Citation: 14 Mo. 190
• Parties: WADDINGHAM ET AL. v. THE CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

14 Mo. 190

WADDINGHAM ET AL.

v.THE CITY OF ST. LOUIS.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

GAMBLE & KIRTLEY, for Appellants.

I. The first point insisted upon by the appellants is, the irregularity and insufficiency of the service of the process. The suit was brought under the new Code. By the 4th section, article 5, p. 78, it is provided that the service of a summons shall be: 1st. By reading the petition and writ to the defendant. 2nd. By delivering a copy of the petition and writ, &c. 3rd. By leaving a copy of the petition and writ at the usual place of abode of the defendant, with some white person of the family above the age of fifteen years. The service in this case was neither the one nor the other, but was a selection of a portion of the first method pointed out by the statute, and tacking thereto a part of the second mode. If this can be done, it is capable of demonstration, that instead of there being but three modes by which a writ may be served, as pointed out by the statute, there are, at least, twelve different and distinct methods by which a legal service may be had according to the whim or fancy of the sheriff. See acts 1848-9, § 4, p. 78; 1 Mo. R. 158, Hickman v. Barnes; 1 Mo. R. 336, Cabeen v. Douglass.

II. The second point insisted on, is, that the motion to set aside the default and permit the defendant's answer to come in, should have been sustained. 1st, for the reason of the insufficiency of the service, and also for the reason set out in the affidavits filed with the motion. The city election and general change of officers occurred on the 1st Monday in April. The former mayor left the city for the east. The city counselor resigned his office, in the first week after that election. His successor gave bond on the 22nd of the month. In receiving the papers pertaining to the litigation of the city, the usual copy of the petition was not among them, nor was his attention called to this case until after default taken. The new mayor and city counselor were necessarily pressed, for a time, greatly with business, with which they were yet unfamiliar, and in the great amount of legal business in which the city was then involved, this was overlooked. When its situation was discovered, the motion to set aside was made, at the return term, of the case, which if granted, would have produced no delay whatever. A good and lawful defense was sworn to, and full and ample justice could have been administered according to the rights of the parties, without injustice to others. It was not a case of neglect, or want of due diligence.

III. The third point on which the appellant relies, is the insufficiency of the petition. The city charter either authorizes the city to condemn private property for public use, as a public wharf, or it does not. If it does not, then there was no jurisdiction to grant the injunction in this case, or to make it perpetual by the final decree. Gamble v. City, 11 Mo. R. 617. If it does confer the power, then, unless there are facts stated in the bill which would withdraw the property in question, from the exercise of the power, there is no ground for the injunction. There is no fact connected with the property in question which could prevent the city from condemning if, except the owners intended, some time in the future, to use it as a private wharf. This will not prevent its being condemned. Nor is this fact stated so that the court could properly act upon it.

IV. It is finally insisted on, that after the appeal was granted and perfected in this case, the Circuit Court had no power to set aside the first judgment and order a new judgment more comprehensive in its terms to be entered up nunc pro tunc. Cox R. 93, White v. McCall; Cox R. 160-1, Thompson v. Thompson.

SPALDING & SHEPLEY, for Respondents.

I. The process was correctly served on the city, by delivering a copy of the petition to the defendant, and reading the writ. Acts 1848-9, p. 78, § 4; Rev. Code, 1845, p. 237, § 2.

II. The plaintiffs have not, in their affidavits, on which the motion to set aside the judgments were based, made out a case of due diligence, and the court below, therefore rightly refused to open the judgment. 11 Mo. R. 192-- mistake of attorney no excuse for default. 10 Mo. R. 392--negligence of attorney under circumstances like the present. 8 Mo. R. 686, negligence of attorney, no excuse. 7 Mo. R. 6 and 25--defendant relied on maker of note to pay defendant as he promised, and did not--no excuse. 6 Mo. R. 254--attorney surprised by cause coming on soon, not enough. 4 Mo. R. 557--neglect of party apparently who had forgotten whether he had applied to counsel. These cases show that diligence and merits are both necessary here. The affidavits allege merits, perhaps, but are utterly defective as to the other point. The process was served months before the election. It does not appear that any attorney was applied to, or even advised of the existence of the suit, till after the decree had been entered; and no information was given to the city counselor till three or four weeks after the commencement of the lower court.

III. Acts of Assembly of 1846-7, p. 185. Act authorizing the taking of wharves and paying therefor. Acts of 1848-9, p. 502, as to purchasing and compromising so as to quiet title to wharf. Constitution of Mo. article 13, clause 7, prohibits the taking of private property for public use without just compensation.

IV. There is equity “in the petition, as the city has no right to appropriate the bank of a river for the purpose of revenue, when its appropriation for public use as a wharf,” is not necessary, the proprietors in fact, devoting it to that purpose, under the control of the city. The case is to be considered on the allegations of the petition alone; and they make out a case of an attempt of the city to condemn the land for purposes of revenue alone. 12 Pick, 480--private property cannot be taken for public use, merely for ornamental purposes. The purposes must be both necessary and useful. 6 Howard, 507, p 537--McLean, J., says, that if the size of the bridge after it was taken, was the same as before, he should consider the taking a void act. At p. 543-4, Justice Woodbury gives the limitation of the right of eminent domain, p. 545, last paragraph, also 548. 7 Pick. 451--“It is only in cases of public exigency that private property can be taken, and then only for public use, and upon making a just and reasonable compensation; 2 Kent's Com. 276. If property be taken for purposes not of a public nature, such law would be void; 3 Paige, 45. Railroads are for public use, and so are canals, ferries, bridges, & c., p. 73-4. 3 Fairfield, 222, illustrates the subject as to what is public use. 3 Yerger, 41--land for a grist-mill is for a public use. 2 Porter, 296--so land taken for roads is for public use. It appears from these, and innumerable other authorities that might be cited, that land can be taken for the purpose of being used by the public, as a road, a canal, a bridge, or a mill, for a basin or a wharf, where the necessity exists that the public should have such use of it. But it is not such use of it as is intended by the Constitution, when land is taken for the purposes of revenue; nor is it taken for public use, nor does the exigency exist for taking it, when it is already applied exactly in the way it is purposed to use it when taken. The word use in the Constitution does not mean benefit. The State cannot replenish its treasury by taking and condemning private property; but it can, under the right of eminent domain, take specific articles or pieces of property, to be used as such when public necessity requires it. Taking property for purposes of revenue is in nature of a tax. The Legislature prohibits the taking of private property for public use, as a matter of revenue or pecuniary gain. In the 19th section, article 13, it is declared that all property subject to taxation in this State “shall be taxed in proportion to its value.” This is the annunciation of a great fundamental principle. It is that in levying taxes on property they shall be apportioned to the value. In other words in raising revenue, i. e. money for the exigencies of government, contributions shall be made in proportion to the value of property. Beside, the necessity of doing it can never exist, as the State has power to provide for its wants in this respect, by compelling all its citizens to pay in proportion to their estates such taxes or contributions as may be needed at any time. To take the property of individuals for the ordinary purposes of revenue, is tyranny; and to possess that power ad libitum, constitutes the government a tyrannical one. 2 Sand. Superior C. R. 98. This clause in the Constitution providing the means of carrying on the government, is, in its character a negation of any other mode of doing it. It embraces all the power conferred upon the Legislature on that subject.

V. The court has power to interfere in this stage of the business by injunction, and prevent the condemnation of this property for the use of the city. 4 Johns. Ch. R. 53--City of New York enjoined from proceeding to take possession and dig down the ground possessed by complainant for 25 years, till they should show their title at law. 2 Story's Eq. § 886--the injunction to restrain proceedings at law, are not confined to any point of the proceedings, but may be granted in any stage of the suit. 2 Story's Eq. § 927--it lies against corporations and others, to prevent abuse of powers given them, and to secure rights and privileges; and if the right be doubtful, the court will direct it to be tried by law, and in the meantime restrain all injurious proceedings. Section 926--it will be granted in cases of trespass if the acts done or threatened to the property would be ruinous or irreparable or impair, the just enjoyment of the property in future.” 2 Barb. Sup. C. R. 577--...