226 Mo. 62 | Mo. | 1910
In the year 1839, by ordinance'duly passed, the city of St. Louis authorized, or attempted to authorize, the erection, management and control of what is and was known as “South Market,” a market place in Fifth street of said city. By the ordinance this market place was to be erected in what was then and is now recognized as a public street of the said city. The market house was to be built by funds voluntarily subscribed by individuals, in shares of not less than twenty-five dollars each. When erected by subscription, as aforesaid, section 1 of the ordinance provided : “Which building, when erected, shall be a public market for the sale of all kinds of marketing and produce which are or may be allowed to be sold In the market regulations of this city, which said market house shall be called and known by the name of the South Market. ’ ’
By section 2, it was provided that the rents should be distributed among the stockholders until they should receive “the full amount by them expended in the erection, superintendence and management of the
This ordinance provided for three commissioners to. manage and control the said market place, until the election of others, which election was provided for in the ordinance by an election held by the stockholders. These commissioners were by the ordinance made city officers, and the market place was to be run in conformity to the ordinances of the city. Reports were to be made to the city authorities. Section 6 of said ordinance reads:
“That upon the first annual report having been made to the board of aldermen as required by this ordinance, the city authorities, should they deem it expedient, may then or at any time thereafter, cause to be refunded to the commissioners whatever amount may be justly due to the stockholders of said market house, according to the provisions and meaning of this ordinance ;
“Or, whenever the stockholders shall be fully refunded by the rents and profits of said market as provided by this ordinance, said commissioners shall relinquish, and the mayor and board of aldermen shall resume, for and in behalf of the city, the possession, ownership and government of said market house, for the benefit of the citizens.”
Later, in 1856 another ordinance was passed confirmatory of the one just described, and granting further privileges. In other words, more street space was granted, carrying with it additional privileges to the market place.
Under these ordinances money was subscribed and a market house was erected, thirty-six feet in width and 375 feet in length, containing about forty stalls or places of business. Upon either side of this house was about thirty feet of the street. In other words, the public highway at this point was nearly
The present suit is one in equity, in which the present commissioners of said South Market seek to enjoin the city and its executive officer, the city marshal, from removing the house built as aforesaid. The ordinances above are pleaded, and the fact of the subscription to a fund for the purpose of building the market place is pleaded, and in addition it is charged that there are 331 shares of stock outstanding, upon which there is yet due twelve dollars per share, and an indebtedness of more than $4000 against said market place, contracted by the commissioners. Taking it altogether it would require some $8000 to liquidate the stock and debt of the concern. The defendants by their answer plead that there was no power in the city to pass the two ordinances aforesaid, as well as other defenses. The reply raises, among other issues, a plea of res adjudicata. We shall not at this point go into detail as to all the matters raised by answer or reply, but leave such matters to be noted as far as may be required in the course of the opinion.
From the evidence it appears that the market place has not done much business in recent years. At or about the date of trial, only two or three stalls were used for market purposes, and for some time prior thereto the greater portion of the building was being used for mere storage purposes. It also appears that the property was becoming more involved in debt as the years pass. Such is evident from the last reports made. This sufficiently outlines the case for a discussion of the questions of law raised.
I. The questions in this case can be reduced to a minimum, notwithstanding the numerous pleas in the answer and reply. In the first place the validity of these two ordinances must be passed upon and determined. The question is, can a city, possessed with the power of controlling the. streets, and also clothed with
But to the proposition as to the right of the city to pass the two ordinances in question. If the city had such power there is an end to this controversy. It appears that other market places were established about this time and they too were placed in the public streets. This, however, does not change the legal status of all such ordinances and of all such acts. Such could only be considered as tending to show the city’s construction of its own powers, and not further. To dur mind the ordinances in question, as well as all similar ordinances, are void for the reason that they exceed the lawful powers of a municipal corporation, such as we have involved here. Where land has been
Power to establish and control market places does not mean power to usurp the rights of the public in and to public streets. The case law seems to be firmly set this way. Dillon, with á citation of the case law (1 Dillon’s Municipal Corporations [4 Ed.], sec. 383), says: “But power to a municipal corporation to establish markets and build market houses will not give the authority to build them on a public street. Such erections are nuisances though made by the corporation, because the street and the entire street, is for
In an early case, the Georgia court thus spoke, Mayor, etc., v. "Wilson et al., 49 Ga. l. c. 478: “It is insisted that the market house was only erected temporarily in that street whilst the defendant was pulling down the old and erecting a new permanent market house on the site appropriated for that permanent building. The reply is, that the organic law forbids the defendant from granting away the streets of the city, for any purpose whatsoever, without an act of the General Assembly. It is a question of power in the defendant as a municipal corporation. It has no more power under its organic law to grant away the use of the streets of the city for the erection of a temporary market house, or for any other purpose, than it would have to grant away the use of the streets permanently. It had no power to grant away the use of the street ‘for any purpose whatsoever, so as to deprive the inhabitants of its common use.”
To a like effect is an early Pennsylvania case, Wartman et al. v. Philadelphia, 33 Pa. St. l. c. 210: “But the general right to build market houses and to shift them from place to place, as occasion' may require, does not imply a right to build them on the public highway. High street is a public highway, made so by the words of the Penn charter. The market houses built in the middle of it were a nuisance previous to the Act of 1804. Those who maintained them might have been indicted, and any citizen could have abated them. It required the supreme legislative authority of the State to take away from them
In a market place case, the Indiana court, City of Richmond et al. v. Smith, 148 Ind. l. c. 296, thus expresses itself: “No good reason can be given to show that the judgment should not be affirmed. The streets are primarily for the use of the traveling public. Certain other uses in which the public and the abutting property-owners are interested are also allowed, but only in such manner and to such extent as may not appreciably impede the use for public travel. Such uses are those for sewers, gas and water pipes, also telegraph and telephone lines. Provision, too, is made for shade trees along the curb and between the roadway and the sidewalks. No right, however, as we think, could be exercised by a city for such an occupancy of a public street as that which was here attempted.”
The New Jersey court had to pass upon a case wherein the citizens sought to enjoin the use of a public street as a market place. [McDonald v. Newark, 42 N. J. Eq. 1. c. 138.] That court therein said: “In the case in hand, the use of the streets for a market place is, under the. circumstances, a public nuisance. Such use of the highway is wholly unwarranted. The entire street is for the use of the public at large, and the unauthorized use of part of it for a market is a public nuisance. [State v. Laverack, 5 Vt. 201.] Nor does the grant by the officers of the city, of permission so to use the street, legalize such use. The use is not
Many eases could be cited, but they all follow the trend of the original cases, and all are in harmony with the cases from this State, reviewed in State ex rel. v. Wabash Railroad, supra. A municipal corporation has no right to obstruct a public highway, by ordinance or otherwise, in the manner in which this highway is obstructed. What the city cannot do, it cannot by ordinance authorize individuals to do. The .ordinances in this case upon which plaintiffs rely are void. They exceed the granted power of the city. Being ultra vires and void the city can urge its incapacity to grant the rights claimed by the plaintiffs unless for other reasons presently to be noted; in such course the city has been estopped. Summarizing the point now under discussion, the city exceeded its powers in attempting by these ordinances to grant to plaintiffs the privileges now claimed by them.
II. Whilst it appears that plaintiffs claim all their rights by and through the city, yet they say that by reason of the attitude of the city in a former suit the validity of these ordinances has been adjudicated and cannot now be questioned. It appears that some years prior to this action the circuit attorney of the city of St. Louis instituted an action in the circuit court of that city, the general purpose of which was to have the ordinance described in our statement declared void for want of power in the city to pass the same, and to have the market place in question declared a purpresture and nuisance. A great number of persons were made parties defendant to this action, including the three commissioners of the said market place, as well as the city of St. Louis. Other defendants filed an elaborate answer, but the city contented itself with a general denial. By the judgment, the
In the case herein pleaded in bar there are no issues made or joined between the city and the plaintiffs in this case. They were upon the same side of the suit. In Chand upon the law of Res Judicata, sec. 77, it has been well said: “It is a general principle, however, that a decision in a suit does not operate as res judicata against all the parties to the suit, but only against those between whom the matter adjudicated upon was in issue. . . . It is on the same
Considering the authorities there is no res adjudicata in this case. With this question eliminated, there is not much left in view of what we hold as to the force and effect of the two ordinances involved. Something is said as to the Statute of Limitations, but this does not, and cannot apply, for the reason that the plaintiffs throughout recognize that the building in question is one within a dedicated street. Plaintiffs claim under and through the city by reason of these ordinances and not otherwise. They have never asserted an independent right of possession and do not in the pleadings assert it now. From first to last their claim has been one under the grant made by these two ordinances. If the ordinances are void, as we think they are, and if the plea of res adjudicata is unavailing, the plaintiffs have no rights. The plea of res adjudicata is unavailing. With these questions passed upon, it is not necessary to go further. The judgment of the trial court which dismissed plaintiffs’ bill should be and is affirmed.