JOHNSON, J.
In August, 1907, the prosecuting attorney of Osage county brought this action against James D. Franklin and the incorporated town of Linn, for the purpose of obtaining an order of court on the defendants to remove certain obstructions erected and maintained by defendant Franklin in a public highway. and within the limits of the town. Process was issued commanding the sheriff to summon F. J. Boillot, H. Gove, Peter Gove, B. J. Brandt, H. C. Finck, and James D. Franklin. The return of the sheriff shows service on all of these persons, but the petition, summons and return all fail to disclose that the first-mentioned five persons sustain any relation to the suit. We are told by the prosecuting attorney that Boillot was the chairman of the board of trustees of the town and that the other four were members of the board, but that fact does not appear on the face of the record. The town did not appear to defend the action and judgment was entered'against it by default. Defendant Franklin appeared and demurred to the petition on the grounds that no cause of action is stated; that defendant town is not a necessary or proper party to the suit, “the contention being about a public county road,” and that there is “a defect of proper parties both plaintiff and defendant and that the suit cannot be determined with [490]*490only the parties hereto before the court.” The demurrer was overruled, defendant Franklin stood on the demurrer, refused to plead'further and, after judgment was entered against him, in accordance with the prayer of the petition, brought the cause here by appeal. He is the only appealing defendant.
It is alleged that the suit is brought by the prosecuting attorney “who in this behalf prosecutes for the State of Missouri; that the town of Linn is incorporated under the laws of Missouri relating to the incorporation of towns and villages; that defendant Franklin owns land in the town over which passes a public highway known as the Linn and Rich Fountain public road; that Franklin has erected a stable and fences in the road where it bisects his land and thereby wholly obstructed its use as a public highway; that “the defendant, the town of Linn, aforesaid, has been notified of the obstructions aforesaid and requested to remove the same but has wholly failed so to do, and has failed and refused to institute any kind of proceedings whatever to compel the said defendant James D. Franklin to remove and abate said nuisance,” and that “if the State of Missouri has no right to complain of the nuisance herein mentioned, then there is no remedy left to the public or to any private individual by which they can effect the removal of aforesaid obstructions and cause the nuisance herein complained of to be abated.” The prayer is that the court make an order; “directing said defendants, and each of them, to remove the obstructions aforesaid from the public highway aforesaid, and forever cease from doing any act which shall interfere with the use of said public highway by the public at large, and that said obstructions be removed by the defendants or either of them within a certain time to be named by the court, and if not so removed within the time specified by said court, then the sheriff of Osage county, Missouri, be ordered to remove the [491]*491same, and return the possession and use of said public highway to the public and for such other and further orders as the court may deem proper in the premises.”
Defendant contends that an action of this character cannot be maintained for the reason that the purpresture is in an incorporated town and the town alone has jurisdiction over public thoroughfares within its boundaries, and is vested alone with the right to prosecute actions for the abatement of obstructions erected in such highways which are public nuisances. We are cited to sections 6004, 6010, 6012, 6015, 6016, 9549, 9550, 9674, Revised Statutes 1899, and to State ex rel. Mermod v. Hegee, 39 Mo. App. 49, as authority for this position. Defendant is right in saying that authority is given to the trustees of towns and villages “to open, clear, regulate, grade, pave or improve the streets and alleys of such town,” and “to regulate livery, sale and feed stables,” but such authority does not vest in the trustees the right to maintain obstructions or to suffer such nuisances to be maintained by private persons. The power over the public ways conferred by the laws of the State is in the nature of a trust which the municipality must execute in furtherance of the object of the trust, and where the municipality is guilty of a breach of this trust by acts either of commission or omission, the visitorial right of the State empowers it to proceed in court to correct the abuse. This it may do through the arm of the Attorney-General or of the prosecuting attorney of the county wherein the nuisance is maintained, by suit in equity, or suit brought under section 6130, Revised Statutes 1899, which provides:
“Whenever any property, real or personal, is held by any municipal corporation in a fiduciary capacity, the circuit court shall have jurisdiction upon proceedings instituted in the name of the Attorney-General or prosecuting attorney, to inquire into any breaches [492]*492of trust, fraud or negligence, and to administer the proper relief.”
We strongly approve what was said on this subject by the St. Louis Court of Appeals, speaking through Judge Goode, in State ex rel. v. Vandalia, 119 Mo. App. 406: “The Attorney-General of the State, or the prosecuting attorney of the county in which the nuisance exists, may proceed in equity in behalf of the sovereignty of the State, for its abatement. This is the rule independent of any statute touching the matter as has been adjudged in many cases. [Smith v. McDowell, 148 Ill. 51, 22 L. R. A. 393; State v. Dayton, 36 Ohio St. 434; Hunt v. Railroad, 20 Ill. App. 282; People v. Beaudry, 91 Cal. 213, 220.] We apprehend that the right of those officials to interfere, grows out of the visitorial power of the State in respect of trusts of a public nature, and that the interference is akin to the suits in equity brought by Attorney-Generals for the regulation of public charities, which are frequently met with in the reports. [Attorney-General v. Haberdasher Co., 15 Beav. 307; Parker, Atty. Commonwealth, v. May, 5 Cush. (Mass.) 336.] The usual mode of proceeding in seeking relief respecting either charities or purprestures and other nuisances, is by an information in equity; which pleading corresponds nearly to a bill in equity filed by a private suitor for his own benefit. The information is in behalf of the sovereignty of the State, to redress some grievance of which the State may complain in equity on its own account, or on account of persons or interests under its special protection; like idiots, lunatics and charities. And informations in equity are filed by the officer representing the sovereignty of the State; that is to say, the Attorney-General, or, in this commonwealth, some prosecuting attorney. This sort of information possesses most of the characteristics of a bill in equity and differs from the latter in form rather than in function. [1 Encyc. [493]*493Pl. and Pr., pp. 857, 859; Story, Eq. Pl., sec. 8; People v. Stratton, 25 Cal. 242.] Some of the formal differences between the two are pointed out in the opinions in Attorney-General v. Moliter, 26 Mich. 444, 449, and Attorney-General v. Evart B. Co., 34 Mich. 462, 472.
Free access — add to your briefcase to read the full text and ask questions with AI
JOHNSON, J.
In August, 1907, the prosecuting attorney of Osage county brought this action against James D. Franklin and the incorporated town of Linn, for the purpose of obtaining an order of court on the defendants to remove certain obstructions erected and maintained by defendant Franklin in a public highway. and within the limits of the town. Process was issued commanding the sheriff to summon F. J. Boillot, H. Gove, Peter Gove, B. J. Brandt, H. C. Finck, and James D. Franklin. The return of the sheriff shows service on all of these persons, but the petition, summons and return all fail to disclose that the first-mentioned five persons sustain any relation to the suit. We are told by the prosecuting attorney that Boillot was the chairman of the board of trustees of the town and that the other four were members of the board, but that fact does not appear on the face of the record. The town did not appear to defend the action and judgment was entered'against it by default. Defendant Franklin appeared and demurred to the petition on the grounds that no cause of action is stated; that defendant town is not a necessary or proper party to the suit, “the contention being about a public county road,” and that there is “a defect of proper parties both plaintiff and defendant and that the suit cannot be determined with [490]*490only the parties hereto before the court.” The demurrer was overruled, defendant Franklin stood on the demurrer, refused to plead'further and, after judgment was entered against him, in accordance with the prayer of the petition, brought the cause here by appeal. He is the only appealing defendant.
It is alleged that the suit is brought by the prosecuting attorney “who in this behalf prosecutes for the State of Missouri; that the town of Linn is incorporated under the laws of Missouri relating to the incorporation of towns and villages; that defendant Franklin owns land in the town over which passes a public highway known as the Linn and Rich Fountain public road; that Franklin has erected a stable and fences in the road where it bisects his land and thereby wholly obstructed its use as a public highway; that “the defendant, the town of Linn, aforesaid, has been notified of the obstructions aforesaid and requested to remove the same but has wholly failed so to do, and has failed and refused to institute any kind of proceedings whatever to compel the said defendant James D. Franklin to remove and abate said nuisance,” and that “if the State of Missouri has no right to complain of the nuisance herein mentioned, then there is no remedy left to the public or to any private individual by which they can effect the removal of aforesaid obstructions and cause the nuisance herein complained of to be abated.” The prayer is that the court make an order; “directing said defendants, and each of them, to remove the obstructions aforesaid from the public highway aforesaid, and forever cease from doing any act which shall interfere with the use of said public highway by the public at large, and that said obstructions be removed by the defendants or either of them within a certain time to be named by the court, and if not so removed within the time specified by said court, then the sheriff of Osage county, Missouri, be ordered to remove the [491]*491same, and return the possession and use of said public highway to the public and for such other and further orders as the court may deem proper in the premises.”
Defendant contends that an action of this character cannot be maintained for the reason that the purpresture is in an incorporated town and the town alone has jurisdiction over public thoroughfares within its boundaries, and is vested alone with the right to prosecute actions for the abatement of obstructions erected in such highways which are public nuisances. We are cited to sections 6004, 6010, 6012, 6015, 6016, 9549, 9550, 9674, Revised Statutes 1899, and to State ex rel. Mermod v. Hegee, 39 Mo. App. 49, as authority for this position. Defendant is right in saying that authority is given to the trustees of towns and villages “to open, clear, regulate, grade, pave or improve the streets and alleys of such town,” and “to regulate livery, sale and feed stables,” but such authority does not vest in the trustees the right to maintain obstructions or to suffer such nuisances to be maintained by private persons. The power over the public ways conferred by the laws of the State is in the nature of a trust which the municipality must execute in furtherance of the object of the trust, and where the municipality is guilty of a breach of this trust by acts either of commission or omission, the visitorial right of the State empowers it to proceed in court to correct the abuse. This it may do through the arm of the Attorney-General or of the prosecuting attorney of the county wherein the nuisance is maintained, by suit in equity, or suit brought under section 6130, Revised Statutes 1899, which provides:
“Whenever any property, real or personal, is held by any municipal corporation in a fiduciary capacity, the circuit court shall have jurisdiction upon proceedings instituted in the name of the Attorney-General or prosecuting attorney, to inquire into any breaches [492]*492of trust, fraud or negligence, and to administer the proper relief.”
We strongly approve what was said on this subject by the St. Louis Court of Appeals, speaking through Judge Goode, in State ex rel. v. Vandalia, 119 Mo. App. 406: “The Attorney-General of the State, or the prosecuting attorney of the county in which the nuisance exists, may proceed in equity in behalf of the sovereignty of the State, for its abatement. This is the rule independent of any statute touching the matter as has been adjudged in many cases. [Smith v. McDowell, 148 Ill. 51, 22 L. R. A. 393; State v. Dayton, 36 Ohio St. 434; Hunt v. Railroad, 20 Ill. App. 282; People v. Beaudry, 91 Cal. 213, 220.] We apprehend that the right of those officials to interfere, grows out of the visitorial power of the State in respect of trusts of a public nature, and that the interference is akin to the suits in equity brought by Attorney-Generals for the regulation of public charities, which are frequently met with in the reports. [Attorney-General v. Haberdasher Co., 15 Beav. 307; Parker, Atty. Commonwealth, v. May, 5 Cush. (Mass.) 336.] The usual mode of proceeding in seeking relief respecting either charities or purprestures and other nuisances, is by an information in equity; which pleading corresponds nearly to a bill in equity filed by a private suitor for his own benefit. The information is in behalf of the sovereignty of the State, to redress some grievance of which the State may complain in equity on its own account, or on account of persons or interests under its special protection; like idiots, lunatics and charities. And informations in equity are filed by the officer representing the sovereignty of the State; that is to say, the Attorney-General, or, in this commonwealth, some prosecuting attorney. This sort of information possesses most of the characteristics of a bill in equity and differs from the latter in form rather than in function. [1 Encyc. [493]*493Pl. and Pr., pp. 857, 859; Story, Eq. Pl., sec. 8; People v. Stratton, 25 Cal. 242.] Some of the formal differences between the two are pointed out in the opinions in Attorney-General v. Moliter, 26 Mich. 444, 449, and Attorney-General v. Evart B. Co., 34 Mich. 462, 472. The right of the prosecuting attorney of Audrain county to maintain the present proceeding is made clear by both ancient and modern decisions of equity courts and is supported by a statute of this State, which provides that whenever any property, real or personal, is held by a municipal corporation in a fiduciary capacity, the circuit court shall have jurisdiction of a proceeding instituted in the name of the Attorney-General or prosecuting attorney to inquire into any breaches of trust, fraud or negligence and to administer proper relief. [R. S. 1899, sec. 6130.] An inquiry into breaches of trust and fraud would naturally be conducted by a court of equity and according to equity pleading and practice. A purpresture in a highway is a grievance of sufficient importance to justify its abatement at the instance of the State [Attorney-General v. Evart B. Co., 34 Mich. 473; State v. Dayton, Hunt v. Railroad, People v. Beaudry, supra.]”
The authority to vacate public streets found in many of the grants to municipalities has its limitations. It cannot be lawfully exercised for any but public purposes, certainly not for private gain or advantage. “The grant of power in this particular is to be construed in view of the purposes for which the municipality is invested with the control of its streets, alleys and public grounds.” [Smith v. McDowell, 35 N. E. 141.] Both on reason and authority, it is quite clear that the maintenance of the obstructions in the public highway by' the defendant Franklin and the neglect of the town to perform its duty to proceed for the abatement of the nuisance, justified the State in employing its visitorial power for the correction of the abuse. The petition [494]*494states a cause of action. The right to prosecute the suit either as one in equity or under the statute quoted is not affected by the provisions of section 9674, Revised Statutes 1899. While we concede the contention of the appealing defendant that the town of Linn was not legally served with process and that judgment against it was entered erroneously (Cloud v. Inhabitants of Pierce City, 86 Mo. 357), we do not share his conclusion that the judgment against him should be disturbed on that account. Since it appears from the averments of the petition, which in the present posture of the case must be accepted as true, that defendant Franklin is the owner of the obstructions, is in occupation of the street and that the only offense of the town consists in its neglect of the duty to make him vacate, we do not think the town is a necessary party to an action against the real offender. The execution of the judgment against Franklin will completely abate the nuisance without affecting any property interest or right of the town. The State is merely doing what the town should have done, and there is no reason for making the town a party.
The judgment is affirmed.
All concur.