Pash v. City of St. Joseph

165 S.W. 710, 257 Mo. 332, 1914 Mo. LEXIS 292

• Court: Supreme Court of Missouri
• Decided: April 2, 1914
• Status: Published

Opinion

WOO'D SON, J.

This suit was instituted in the circuit court of Buchanan county, June 9, 1913', by the appellant, in her own behalf and that of several hundred other property-owners similarly situated, to enjoin the respondent, the city of St. Joseph, a city of the first class, from enforcing a judgment of said court, •rendered January 28, 1913, making or levying special assessments on real property situate therein for the purpose of purchasing a site for a public park in said city, and to cancel said judgment as a lien upon their real estate, and to remove the cloud cast thereby upon the titles to their said property.

A demurrer was filed to the petition, which was by the court sustained; and the plaintiff declining to plead further, judgment was rendered accordingly for' the defendant. From that judgment the plaintiff -duly appealed the cause to this court.

The material facts of the case, as stated in the -petition and admitted by the demurrer of the city to be true, are but few, and are as follows:

The city of St. Joseph is a city of the first class; :and on February 1, 1911, it duly enacted special ordinance numbered 5722, condemning certain land in said «city for the purposes of a public park, parkway, etc., ■which need not be set out.

That on July 10, 1911, said city filed in the circuit «court of said city a certified copy of said ordinance, as provided for by its charter. That on said day said .court made an order fixing August 14, 1911, the date for impaneling a jury to assess the benefits that would result to the property by virtue of the establishment of said park.

Notice of said order was duly given and proof thereof was duly filed on said last named date; and on the 21st of same month, said court made an order impaneling a jury to assess the benefits.

Thereafter, on November 6, 1911, and during the October term of said court, the jury was duly sworn and the cause was submitted to it and the taking of the evidence in the cause was begun.

Thereafter, on January 16,1912, the common council of said city duly, for the first time, enacted a special ordinance dividing the territory of said city into three park districts numbered 1, 2 and 3.

Thereafter, on August 12, 1912, .during the May term of said court, the jury returned its verdict into said court assessing said benefits, which was duly filed: and on January 28, 1913, during the January term thereof, said court, after hearing all objections and. exceptions to the verdict of the jury, overruled the same and rendered final judgment confirming the verdict of the jury assessing the benefits complained of.

And for the nullification of that judgment, as previously stated, this suit was instituted.

Assessment without Benefit District: While counsel for each party present and discuss a number of propositions, yet it is not ' necessary to consider but one of them, because all others are predicated upon that one, and whichever way it is decided, they must follow.

From the statement of the case it is seen that the condemnation proceedings which resulted in assessing the special benefits against appellant’s property, were instituted about one year before the ordinance establishing the park districts was enacted. That is, ordinance No. 5722, condemning the property for park purposes, was enacted February 1, 1911, and was filed in the circuit court July 10th, same year, while the ordinance establishing the park district was not enacted until January 16, 1912, almost a year, as previously stated, after the condemnation proceedings had been instituted.

Upon that state of facts counsel for appellant contends that, “The non-existence of park districts at the time the condemnation suit was brought rendered the whole proceedings and the judgment null and void,” and consequently its validity may be challenged in this equitable proceeding.

The basis of that contention is predicated upon this insistence: “The statutes require, as a prerequisite to the proceedings to condemn land for a park, that the territory of the city be divided into park districts ; and that the existence of such park districts is a jurisdictional fact in the proceeding. ’ ’

The presentation of this question in this form requires the consideration of the laws and the ordinances of the city of St. Joseph.

The authority of the city to establish park districts is found in section 192, Laws 1909, p. 216, same as section 8725, Revised Statutes 1909', which reads as follows:

“Sec. 8725. May create park districts — Said board of park commissioners shall recommend to the city council a division of the territory within the city limits into park. districts, the number, names and description of said districts to be designated by said board, and to be established by ordinance, and thereafter, when the city limits may be extended or said board shall deem it advisable for any reason, said park districts may be increased or diminished in number, and the extent and area thereof may be increased or diminished by adding to or taking away from the territory thereof; but such changes shall be made only by ordinance, as recommended by said board.”

The language of this section is plain and unambiguous. It provides that the park commissioners shall recommend to the city council, park districts, etc., and that they shall be established by ordinance.

There can be no question but what this language is mandatory and must be obeyed by the commission and council, before the body, much less the life of the district can be created, and is in keeping with the general laws of nations, states, counties and municipalities which require that they shall be established, and the boundaries thereof fixed before they begin to exercise civil or political powers or they may be exercised for them.

In the case of Kansas City v. Mastin, 169 Mo. 80, l. c. 91, in discussing a similar charter provision,' this court said:

“The proposition that the charter of Kansas City violates sections 16 and 17 of article 9 of our Constitution, because it creates a third house of legislation in the board of park commissioners, wás negatived in the decision of this court in Kansas City v. Bacon, 147 Mo. l. c. 283.

“As there said, ‘it was entirely .competent to require, as a condition precedent, a prior recommendation of the park board. Such a provision confers no power on the board to legislate, but simply imposes a limitation upon the council. Until the council acts, no park can be established. [St. Louis v. Gleason, 93 Mo. 33.] ’ The city councils of said cities have not unlimited powers of legislation without regard to their charters, and it was never intended they should have. We see no reason for departing from the decision in Kansas City v. Bacon, on this point., [Kansas City v. Ward, 134 Mo. 172.] ”

To the same effect is American Tobacco Co. v. Missouri Pacific Ry. Co., 247 Mo. 374.

But the former case did not turn upon that point, because section 1 of article 7 of the charter of that city provided other means for creating park districts, and this court there held that either of those modes might be pursued by the city; and in so holding the court on page 93, said:

“But it is also contended that this proceeding must be adjudged void because there is no statement in the ordinance or record that the board of park commissioners had ever devised or adopted ‘a system of parks.’ As we understand this contention, it is that section 5> of article 10 of the charter confers upon the park board the power, and devolves upon it the duty, of devising and adopting a system of parks and boulevards, and unless there is an allegation in every condemnation proceeding that the board had first devised and adopted a system, there is no jurisdiction in the circuit court. .

“By section 1 of article 7 of the charter, general power is conferred upon the city to establish parks and boulevards. The language of section 5 of article 10 is, ‘Said board of park commissioners shall have power, and it shall be its duty, to devise and adopt a system of public parks, parkways, and boulevards, for the use of the city and its inhabitants, and to select and designate lands to be used and appropriated for such purposes within said city. But the power to condemn is not made dependent upon the adoption of a system of parks and the power of the city to acquire or condemn parkways or boulevards is not restricted by such a provision. There is no requirement that evidence of the adoption of such a system shall be preserved in any particular form, or filed in any public office. In the absence of some provision in the charter or the ordinance under which the proceedings are conducted, that such a step shall constitute a condition precedent to the acquisition of a parkway by condemnation, it is not a jurisdictional fact necessary to be stated in the petition or ordinance. The proceeding is required to be conducted in a court of general jurisdiction, and the power to condemn is given in. the charter and ordinance, and the proceeding is clearly referable to that power and it is not essential that it shall be stated anew in order to confer jurisdiction. The provision is easily distinguishable from those cases in which the courts have no power to proceed until it appears that the parties cannot agree, as in Ells v. Railroad, 51 Mo. 200, and Railroad v. Campbell, 62 Mo. 585. [Kansas City v. Smart, 128 Mo. l. c. 287, et seq.] The charter makes it obligatory that at least one park shall be established in each park district, without any reference to a plan of parks. Had appellants appeared at the trial, and proved, or offered to prove, that the park board had not devised a general system of parks, it would have constituted no defense whatever to the proceeding.”

Moreover, in that case there was nothing but the record proper before this court, and the only .question was whether or not it was necessary that the ordinance condemning the land should have recited the facts that the' board of park commissioners had devised, adopted and recommended to the city council a general park system, and that in pursuance thereof an ordinance had been enacted establishing the same, before the circuit court could acquire jurisdiction of the subject-matter.

This court in that case held that such recitals were not jurisdictional because this court would presume that all those preliminary steps had been properly taken before the ordinance condemning the land had been filed in the circuit court.

But in the case at bar the question is not one of procedure, as there. Here the park districts had not in fact been established at the time of the passage of the ordinance condemning the land or at the date it was first filed in the circuit court; but upon the contrary, it was not enacted until about one year thereafter, and that too, after the proceedings had been filed in the circuit court and after notice had been served and the jury had been selected, and the taking of evidence had materially progressed.

Clearly these were jurisdictional facts, though the recital of them may not have been necessary, as was held in the ease of Kansas City v. Bacon, supra. It would be absurd and nonsensical to say that a city can condemn land for park purposes in a particular park district, and assess benefits caused thereby, when no such district in fact existed.

Counsel for the respondent' does not seem to controvert that proposition, but seeks to escape from its effect by insisting that since the circuit court was a court of general jurisdiction, its judgment, unappealed from, confirming the verdict of the jury assessing the benefits, foreclosed all inquiry as to the establishment of the park districts mentioned.

I am unable to see the soundness of that insistence, for the reason that the question of the existence of the park districts was not before the court for adjudication. That court had no authority by law, decree or otherwise, to establish park districts in the city of St. Joseph; that was a matter resting solely within the province of the park commission and the city council, as shown'by section 8725; Revised Statutes 1909', previously quoted; consequently at the time of the institution of the condemnation proceeding, there existed no park districts within which the lands mentioned could be assessed for park purposes; nor did any such district exist at the time the notice was served that such proceedings had been instituted and that certain lands would be assessed for that purpose.

Nay, no such district had been created for five months or more after the jury had been impaneled to assess the benefits and some two and one-half months after the introduction of evidence had begun.

The very object of the notice was to give the property-owners an opportunity to be heard in the proceedings and present their rights and interests before the jury, which could not have been done, if they had no means of knowing whether or not their lands would be embraced in the park district for which they were sought to be taxed. [The St. Joseph Terminal Railway Co. v. The Hannibal and St. Joseph Railway Co., 94 Mo. 535, l c. 542; State ex rel. v. Riley, 203 Mo. 175, l. c. 191.]

It was held in the latter case, that one of the most, if not the most important step to be taken in this class of proceedings, is the establishment of the boundaries of the beneficial districts, and that great injury might be inflicted upon the property-owners if they were denied a fair and impartial trial at this stage of the proceeding. . .

And in State ex rel. v. Wiethaupt, 254 Mo. 319, it was held in a drainage district case a change of boundaries of the district after notice had been given rendered all of the proceeding therein up to that time null and void; then a fortiori should the proceedings in this case be held null and void where the boundaries of the park district, the. same as the benefit district, had never been established for a year or more after the giving of the notice.

If these cases, and many others of like import, correctly declare the law, then it must inevitably follow that the existence of the park district is a prerequisite to institution and prosecution of such proceedings, or we will be confronted with the proposition that the property-owners to be affected thereby would be de-r prived of their property without a hearing and without due process of law, under both the State and Federal Constitutions, since there is no pretense that an additional notice was given after the district had been formed.

In fact, so far as disclosed by the record in the condemnation proceedings no ordinance creating the park districts was ever enacted. That fact only appears from the allegations of the bill filed in this case, and the demurrer admits such ordinance was passed January 16,1912; but neither the record in this case nor in that shows that said ordinance was ever called to the attention of the circuit court during the pendency of the condemnation proceedings; and had it not been for the fact that counsel for appellant set out said ordinance in his printed argument in this court, we never would have known its provisions.

However, we have attached no importance to the provisions of that ordinance for two reasons; first, because it was not before the trial court in the condemnation proceedings; and, second, because counsel for respondent insists, which is true, that it is not properly before this court. But the fact that said ordinance establishing the districts was not enacted until a year after the condemnation proceedings were instituted is charged in the petition in this case and that fact is admitted by the demurrer which properly presents that fact to this court.

While it is regrettable that this state of affairs exists, yet we are compelled to write the law applicable to the facts as they exist, and not as to what we might wish them to be.

Entertaining these views of the case, we are of the opinion that the judgment should be reversed and the cause remanded to the circuit court with directions to grant a new trial in harmony with the views herein stated.

All concur; Faris, J., in result.