Young v. City of St. Louis

• Decision Date: 31 March 1871
• Citation: 47 Mo. 492
• Parties: JOHN YOUNG, Respondent, v. THE CITY OF ST. LOUIS et al., Appellants.
• Court: Missouri Supreme Court

47 Mo. 492

JOHN YOUNG, Respondent,

v.THE CITY OF ST. LOUIS et al., Appellants.

Supreme Court of Missouri.

March Term, 1871.

Appeal from St. Louis Circuit Court.

S. Reber, for appellants.

J. N. Litton, for respondent.

I. In proceedings of this character it must affirmatively appear that the council declared it necessary to lay the pipe. The law is express: they must ““so declare.” “Necessity” in this case is not synonymous with “expediency.” (Commonwealth v. Egremont, 6 Mass. 491; 2 Mass. 271; 29 Conn. 495; Hunter v. Newport, 5 R. I. 329; 23 Me. 9; 2 Pick. 228; Conners v. Swain, 8 Pick. 547; Jones v. Anderson, 9 Pick. 132; Bethel v. County Court, 42 Me. 479; 8 Conn. 164, 243; 9 Conn. 232; 11 Conn. 577; 17 Conn. 197; 1 Dutch., N. J., 434; Mallett v Kennan, 22 Ala. 484.)

II. It does not appear by the record that the vote was a two-thirds vote, even of those who were present; still less of those who were elected. It must so appear. (See 9 Yerg. 268; Henderson v. Baltimore, 8 Ind. 352; Mallett v. Kennan, supra; 1 Cow. 316; 1 Johns. 75; 4 Hill, 76; 3 Greenl. 340; Dougherty v. Hope, 1 Comst. 79.)

The records of this judicial tribunal should show this fact. It is a jurisdictional fact, and every inferior or judicial tribunal other than a common-law tribunal must affirmatively show its jurisdiction. (Iba v. Hann. & St. Jo. R.R., 45 Mo. 475; Hamberger v. Pacific R.R., 41 Mo. 227; 26 Mo. 65; 31 Mo. 264; 37 Mo. 228; 6 Wheat. 119; Hayward v. Charlestown, 3 N. H. 23.)

III. This ordinance was repealed by the resolution. If the ordinance was a declaration that the pipe was necessary, the resolution was a declaration that it was a mistake--that it was unnecessary.

WAGNER, Judge, delivered the opinion of the court.

The certiorari issued in this case brings up the record of the board of water commissioners, and the question is whether the action of the board, in making an assessment against the respondent for laying a water-pipe in front of his property on Gamble avenue, was legal. The power was exercised under the provisions of an act amendatory to the act to enable the city of St. Louis to procure a supply of wholesome water. (Adj. Sess. Acts 1868, p. 291.)

The law provides that whenever a majority in interest of the property-holders on any street, lane or alley, in the city of St. Louis, shall petition for water-pipe to be laid along such street, lane or alley, or whenever the city council shall, by a vote of two-thirds of all the members elected, declare the laying of waterpipe to be necessary, the board of water commissioners shall cause the same to be laid, and the cost of laying all such pipe shall be apportioned among the owners of property on such street, lane or alley, according to the fronting of their lots thereon.

There was no petition of property-holders in this case, but the board, to justify their action, rely upon an ordinance which was passed by the city council, and which authorized the water commissioners to lay a six-inch water-pipe in Gamble avenue, from High street to Naomi street, and in payment thereof to assess a special tax on the property-holders. The concluding paragraph of the ordinance purports to be passed in pursuance of the act of 1867, when, in fact, the amendatory act of 1868 was in force; but this was obviously a mere clerical error, and does not in the least impair the validity of the ordinance, as the provisions of both acts, so far as the merits of this case are concerned, are essentially the same.

The main and principal objection urged against the proceeding is that the council did not in direct terms declare that the laying of the water-pipes was necessary. There are some authorities that support this view of the case, but it seems to me that they are too technical, and are not founded on those broad considerations which should always be adopted in construing statutes.

The city council in passing the ordinance necessarily exercised the discretionary power given by the statute, and must be presumed to have formed an opinion of the necessity or desirableness of the improvement. I think it was sufficient to show that the council passed the ordinance of authorization; that was equivalent to an averment that the exigency had arisen, had...