Napton, J.,
delivered the «pinion of the court.
Waddingham and others presented a petition to the court of common pleas, asking an injunction to restrain the city authorities of St. Louis from condemning certain portions of their lands lying on the river and within the corporate limits of the city of St. Louis as a public wharf. The injunction was granted until the circuit court, to which tribunal the order was returnable, should make further order on the subject. A writ was issued from the circuit court, returnable to the April term, 1850, which was executed by “delivering a certified copy of the petition and [195]*195reading the writ to James G. Barry, mayor of the city of St. Louis.” At the return term the defendant failed to answer, and judgment by default was entered, making the injunction perpetual on the city. On the 24th May a motion was made to set aside this judgment and permit the defendant to answer — but the motion was overruled — and the cause brought here by appeal.
The propriety of the judgments by default depends upon the sufficiency of the service of the writ. It is conceded, that this return does not show a service literally conforming to either of the modes of service directed by the 4th section of the 3d article of the practice act. It is however contended, that it is a substantial compliance, and therefore should be upheld. Since the first mode of service specified in the law is by reading the writ and the petition, it is thought that leaving a copy of the petition, which is a more formal service than reading it, will not make the service less beneficial to the defendants than it would have been if the petition had been merely read.
There are only two modes of personal service pointed out by the act, one is reading the petition and writ and the other is by delivering copies of them. The officer may pursue either mode, but the act does not seem to contemplate the propriety of separating the process, by reading one portion and delivering a copy of the other. It is probably designed that the entire process, writ and petition, shall be served in the same way. It might have been provided, that it would be sufficient to serve the entire process in either of the two modes specified, so that if the petition were served, either by reading or delivery, and the writ were served, either by reading or delivery, the service should be deemed good, and it may be admitted that no very good reason occurs, why the provision was not so framed. But we are inclined to adopt the more obvious construction of the provision as it now stands. There may be inconveniences attending the service of the same process in two different modes, not suggested by the circumstances of this case.
We do not consider it necessary to determine upon the sufficiency of the affidavits filed, which were designed to present reasons for opening the judgment by default. Had the service of the writ been sufficient, the history of the case would certainly present some difficulties growing out of the recent statute for ic reforming the pleadings and practice in courts of justice.” This proceeding, by whatever name it may be called, is substantially an interposition of judicial power to protect the citizen against what is deemed unconstitutional encroachments of the body politic. The practice act declares that the distinction heretofore existing between suits at law and in equity is abolished, and proceeds [196]*196to give a new name by which every form of action shall be hereafter distinguished. Incidental to the old forms had sprung up a variety of rules and precedents, by which the courts were governed, but in relation to which the new code is silent. To which system shall we look for guidance when such questions arise? Shall we go to chancery or common law, according as the proceeding now termed a civil action belongs in its character and nature, if not in its name; to the one or the other of these ancient systems ? The judgment by default in a common law action stood upon a very different footing from that in which a decree nisi did in a court of chancery. There can be no question but that the present proceeding would have fallen within the province of the chancellor, and certainly there would have been no hesitation in setting aside a decree nisi taken under the circumstances which marked the judgment by default in this case.
The most important question discussed in this case is, whether the petition made out a case authorising the interference of the court. This question might be passed by, since the judgment by default must be set aside; but as the point is made and arises on the record, we will state our impressions of the law arising from the facts stated in. the petition.
We readily assent to the proposition, that it is but a semblance of exercising the eminent domain, for a state or a municipal corporation created by it, to appropriate the revenues of an existing franchise, already dedicated to the same public use for which it is ostensibly raised. If a bridge, or wharf, or road, already devoted to public use and regulated by the public authorities, is sought to be made tributary to the public revenue, under color of taking private property for public uses, it will be the duty of the court to interpose. But the facts disclosed in this petition do not call for the application of such principles. There was no private wharf in existence. The river bank owned by the complainants had been used as aplace of boarding, and without objections on their part — but this circumstance constituted no better objections to its being converted into a public wharf, with all the erections appropriate to such a purpose, than the owner of a tract of land would have to the building of a McAdamised road over that portion of it which was unenclosed and already open to public travel.
The complainants, it is true, aver that a design had been and yet was entertained by them, to erect a wharf for the accommodation of the public; that they had in fact, on the 2nd of November 1849, gone so far as to enter into an agreement among themselves and reduced that agreement to writing, to cause the river banks to be graded and otherwise suitably prepared for a public wharf; that in pursuance of this agree[197]*197ment they had made contracts for the necessary works and expended money under said contracts. They further declare their entire readiness to submit to any regulations respecting the construction of such wharf and the rates of wharfage as the city authorities may dictate.
But it will be seen that the ordinance of the city (No. 2263) for condemning this land, with a view to make it a public wharf, was passed on the 10th of August 1849, before the agreement recited in the petition was executed, and so far as appears, before any design was entertained on the part of the proprietors to appropriate their land and money in this way. At the date of the ordinance the land of the petitioners seems to have been in a state of nature — no wharf had been erected or even commenced — nor had any single step been taken to put this land in a condition to be used in the mode and for the purposes for which it was desired.
This is not therefore an attempt on the part of the public authorities to assume, under pretext of public necessity, the management of a wharf already in existence, owned by private citizens, and dedicated to the same purposes for which the public authorities desire it.
The petition, however, assumes other grounds upon which the inter, position of the court is asked.
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Napton, J.,
delivered the «pinion of the court.
Waddingham and others presented a petition to the court of common pleas, asking an injunction to restrain the city authorities of St. Louis from condemning certain portions of their lands lying on the river and within the corporate limits of the city of St. Louis as a public wharf. The injunction was granted until the circuit court, to which tribunal the order was returnable, should make further order on the subject. A writ was issued from the circuit court, returnable to the April term, 1850, which was executed by “delivering a certified copy of the petition and [195]*195reading the writ to James G. Barry, mayor of the city of St. Louis.” At the return term the defendant failed to answer, and judgment by default was entered, making the injunction perpetual on the city. On the 24th May a motion was made to set aside this judgment and permit the defendant to answer — but the motion was overruled — and the cause brought here by appeal.
The propriety of the judgments by default depends upon the sufficiency of the service of the writ. It is conceded, that this return does not show a service literally conforming to either of the modes of service directed by the 4th section of the 3d article of the practice act. It is however contended, that it is a substantial compliance, and therefore should be upheld. Since the first mode of service specified in the law is by reading the writ and the petition, it is thought that leaving a copy of the petition, which is a more formal service than reading it, will not make the service less beneficial to the defendants than it would have been if the petition had been merely read.
There are only two modes of personal service pointed out by the act, one is reading the petition and writ and the other is by delivering copies of them. The officer may pursue either mode, but the act does not seem to contemplate the propriety of separating the process, by reading one portion and delivering a copy of the other. It is probably designed that the entire process, writ and petition, shall be served in the same way. It might have been provided, that it would be sufficient to serve the entire process in either of the two modes specified, so that if the petition were served, either by reading or delivery, and the writ were served, either by reading or delivery, the service should be deemed good, and it may be admitted that no very good reason occurs, why the provision was not so framed. But we are inclined to adopt the more obvious construction of the provision as it now stands. There may be inconveniences attending the service of the same process in two different modes, not suggested by the circumstances of this case.
We do not consider it necessary to determine upon the sufficiency of the affidavits filed, which were designed to present reasons for opening the judgment by default. Had the service of the writ been sufficient, the history of the case would certainly present some difficulties growing out of the recent statute for ic reforming the pleadings and practice in courts of justice.” This proceeding, by whatever name it may be called, is substantially an interposition of judicial power to protect the citizen against what is deemed unconstitutional encroachments of the body politic. The practice act declares that the distinction heretofore existing between suits at law and in equity is abolished, and proceeds [196]*196to give a new name by which every form of action shall be hereafter distinguished. Incidental to the old forms had sprung up a variety of rules and precedents, by which the courts were governed, but in relation to which the new code is silent. To which system shall we look for guidance when such questions arise? Shall we go to chancery or common law, according as the proceeding now termed a civil action belongs in its character and nature, if not in its name; to the one or the other of these ancient systems ? The judgment by default in a common law action stood upon a very different footing from that in which a decree nisi did in a court of chancery. There can be no question but that the present proceeding would have fallen within the province of the chancellor, and certainly there would have been no hesitation in setting aside a decree nisi taken under the circumstances which marked the judgment by default in this case.
The most important question discussed in this case is, whether the petition made out a case authorising the interference of the court. This question might be passed by, since the judgment by default must be set aside; but as the point is made and arises on the record, we will state our impressions of the law arising from the facts stated in. the petition.
We readily assent to the proposition, that it is but a semblance of exercising the eminent domain, for a state or a municipal corporation created by it, to appropriate the revenues of an existing franchise, already dedicated to the same public use for which it is ostensibly raised. If a bridge, or wharf, or road, already devoted to public use and regulated by the public authorities, is sought to be made tributary to the public revenue, under color of taking private property for public uses, it will be the duty of the court to interpose. But the facts disclosed in this petition do not call for the application of such principles. There was no private wharf in existence. The river bank owned by the complainants had been used as aplace of boarding, and without objections on their part — but this circumstance constituted no better objections to its being converted into a public wharf, with all the erections appropriate to such a purpose, than the owner of a tract of land would have to the building of a McAdamised road over that portion of it which was unenclosed and already open to public travel.
The complainants, it is true, aver that a design had been and yet was entertained by them, to erect a wharf for the accommodation of the public; that they had in fact, on the 2nd of November 1849, gone so far as to enter into an agreement among themselves and reduced that agreement to writing, to cause the river banks to be graded and otherwise suitably prepared for a public wharf; that in pursuance of this agree[197]*197ment they had made contracts for the necessary works and expended money under said contracts. They further declare their entire readiness to submit to any regulations respecting the construction of such wharf and the rates of wharfage as the city authorities may dictate.
But it will be seen that the ordinance of the city (No. 2263) for condemning this land, with a view to make it a public wharf, was passed on the 10th of August 1849, before the agreement recited in the petition was executed, and so far as appears, before any design was entertained on the part of the proprietors to appropriate their land and money in this way. At the date of the ordinance the land of the petitioners seems to have been in a state of nature — no wharf had been erected or even commenced — nor had any single step been taken to put this land in a condition to be used in the mode and for the purposes for which it was desired.
This is not therefore an attempt on the part of the public authorities to assume, under pretext of public necessity, the management of a wharf already in existence, owned by private citizens, and dedicated to the same purposes for which the public authorities desire it.
The petition, however, assumes other grounds upon which the inter, position of the court is asked. The petitioners declare they are willing to devote this land, at their own expense, to the same public use for which the city authories have seized it — and on such terms, as those authorities may direct — and to this end, they purpose to give such security as the court may direct to secure the fulfilment of their undertaking.
This presents a different question. Is a municipal corporation, authorized by the charter to construct wharves and other similar public conveniences, upon the land of private citizens, bound to select as agents for the accomplishment of the work the owner of the land upon which the erections are proposed? Is the power of the city or the State (where the State acts directly) arrested by an offer on the part of the citizen to do himself what the city or the State purposes to do with his private property? This would appear to be a matter of legislative discretion. Such a mode of procuring public conveniences may be often very desirable, but its adoption or rejection is addressed to the discretion of the political body through whom the corporation or state acts. The power of eminent domain is not affected by such propositions. Our constitution allows private property to be taken for public uses, upon making just compensation to the owner — but to say that this shall not be done, when the owner proffers to appropriate his property to the same use for which the public desire it, is to impose an additional restriction not pro[198]*198vided for in the constitution. If the petitioners could fully secure to the city the erection of this wharf, and as they propose, would further submit the rates of wharfage to be regulated by the city authorities, and in their discretion to be entirely abolished, it would certainly seem strange that so liberal a proposition should be declined. But we have no power of reviewing the legislative discretion of the municipal authorities of St. Louis. Their power to conduct this work, at their own expense, upon paying a just compensation to the owner of the land, has been delegated to them by the State, and no sufficient objection to the exercise of this power has been suggested by the facts of the petition-
We shall therefore reverse the judgment and dismiss the petition.