USA > Missouri > The history of the bench and bar of Missouri : With reminiscences of the prominent lawyers of the past, and a record of the law's leaders of the present > Part 12
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STREETS.
The highways of England belong to the King. Originally and usually in the United States the title to all highways is primarily in the State. Neither the King in England nor the State in the United States is liable for injuries received from defects in the highways. This is partly and commonly because neither the King nor the State is liable to an action at the suit of a citizen. But the primary and fundamental, legal and logical reason is because streets and roads are maintained in a governmental capacity for the good of the public and in no sense for private gain. In England, the parishes, and in America, the conuties, are held not liable for injuries received from defects in the highways. The usual reasons given that the parishes in England had 110 power of taxation and hence no rev- ennes to pay for keeping up the roads, and that the counties in America exercise only gov- ernmental powers and hence cannot be held liable for negligence in the exercise of such powers. The counties in America generally have the power of taxation, and the right to compel citizens to work on the roads, and in most States the power to levy a tax for keep- ing the roads in repair. Yet neither in England nor in America is a county liable for defective highways. This is the rule in Missouri. (Reardon vs. St. Louis County, 36 Mo., 555).
In the New England States, cities are hield not liable for injuries received from defective streets unless specially made so by statute, and the rulings are placed upon the true history and principles of the law that streets are maintained under governmental powers for public
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good. In those States few cities have the dual capacity. Their powers are purely govern- mental. But in the Middle and Western States, cities have almost uniformly been held liable for defective streets. The decisions are placed partly upon English cases as to the liability of cities there without noticing that in England the cases were bottomed upon the charter obligations of the cities to relieve the Crown of the expense of keeping the highways of the cities in repair, whilst in America there is scarcely a city charter that contains any such obligation, and partly upon the assertion that the cities are given the power to levy taxes to raise revenue to pay for keeping the streets in repair or are authorized to charge the cost of repairing the streets as a special tax upon the abutting property, and sometimes it is placed upon the grounds that the congregation of large numbers of persons in the comparatively small area of a city, casts a greater duty upon the city than is cast upon a county.
The courts of Missouri have adopted the rule of the Middle and Western States, using indiscriminately one or the other of the reasons given above, and it is not believed that a single case can be found in Missouri holding any other doctrine.
It requires considerable temerity to say that all these decisions as to streets, are illog- ical and inconsistent with the admitted, fundamental principles of municipal organizations and power, and that some of the reasons given are contrary to the charter powers of most of the cities in this State.
Streets in cities in Missouri are acquired, constructed, maintained and repaired pursuant to the governmental powers of the city. It requires the power of eminent domain to con- demn private property for street purposes. The right to construct, maintain or repair streets grows out of governmental powers conferred by the State upon the city for public good and not for private corporate gain. The power to assess the cost of improvements or repairs upon abutting property is governmental and brings no profit to the city. The power to levy taxes to produce municipal revenue to pay for maintenance or repairs is govern- mental and the expenditure of such money for repairs of streets is for public good, and is a depletion of the city's revenue, and in no case a private corporate profit. In most cities of the State repairs must be paid for out of general revenues and cannot be charged as a special tax upon adjoining property. But it is immaterial to the question whether the city or the adjoining property pays for repairs -the logic of the rule is the same.
If the streets are acquired, constructed, maintained or repaired out of general revenue or by special tax upon adjoining property, the facts remain that they are established and kept up pursuant to the governmental powers of the city for public good, and not for private corporate profit. If this be true, it is incomprehensible how the city can be held liable for negligence as to streets, and not liable for negligence as to anything it has or undertakes in any other governmental capacity, like hospitals, insane asylums, poor houses, work houses, fire departments or police departments.
Logically there is no difference. Historically there is 110 distinction. The results reached are incongruous and arise ont of a failure to distinguish between governmental and business duties and powers, or are the results of following English precedents without noting the difference, in this regard, between a charter obligation of English cities and those of America.
Neither can these decisions be sustained as to cities and the rule derived as to county liability, because cities have the power to raise revenue for street repairs or to assess the cost against adjoining property, while counties have no such power. True, counties cannot
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THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
assess the cost against abutting property, but counties have the power to levy a road tax or require citizens to work on the road. St. Louis pays for repairs out of general revenue and cannot assess it against adjoining property. Special assessments on adjoining property for repairs on streets is only a modern urban substitute for making citizens work on the road. Everywhere counties have the power of taxation for road purposes our courts have held that they are not liable for defective highways. (Reardon vs. St. Louis County, 36 Mo., 555) .
If streets are thus maintained in a governmental capacity for the good of the people, and if a fallure to exercise a governmental duty or negligence in such exercise affords no foundation for liability, then it inevitably follows that there is neither reason or logic in the statement that a greater duty is cast upon a city than upon a county by reason of the greater congregation of people in a smaller area.
The result is that a traveler on a country road has no remedy if he is injured by a defect in the highway, but when he crosses an imaginary dividing line between the county and the city and is injured from an exactly similar defect in a street in the city, he has a cause of action against the city, albeit the naked eye could not distinguish where the county ended and the city began, from any difference in the character of the highway or the build- ings or improvements abutting the highway, or the vast expanse of truck gardens or rock quarries adjoining the highway.
It is too much to hope that some day the courts of the Middle and Western States will see the logic, wisdom and justice of the decisions of the courts of the Eastern States, and will readjust their legal compasses and return to an enforcement of the true and fundamental rules and distinctions of the real law as applied to streets as well as to any other matter wherein the city acts in its governmental capacity for the public good. It can be done at any time without impairing the rights of any citizen. It is unlike erroneous decisions re- lating to individual or property rights, where rights have been acquired or title vested on the faith of such decisions. No man has a vested right in a damage suit nor in a remedy.
If that time ever comes, it will do much to clear up the complex and varied state of the law as now interpreted, as to whether the city is an insurer of the safety of travelers over its streets; as to whether the city must keep the whole of its streets in repair or only so much thereof as is necessary to public travel (Brown vs. Glasgow, 57 Mo., 156; Bassett vs. St. Joseph, 53 Mo., 303; Hull vs. Kansas City, 54 Mo., 598; Walker vs. Kansas City, 99 Mo., 647; Roe vs. Kansas City, 100 Mo., 190); as to whether the city is not liable for failure to exercise its police power to compel the owner of a dangerous building near, but not upon, the highway to remove the same (Kiley vs. Kansas City, 87 Mo., 103), or is liable therefor (Franke vs. St. Louis, 110 Mo., 516), and too many like cases which liave troubled the courts and caused conflicting and illogical decisions to be rendered here- tofore and which will compel many more to be given, because of the failure to observe fundamental distinctions.
SEWERS.
Sewers of a city are either public (constructed and maintained out of general revenue for the good of the whole people), district (constructed in special districts at the expense of and for the benefit of a portion of the public), or private (constructed by private persons, with the city's consent, in advance of district sewers, for the convenience of a limited 11um- ber of people) .
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MUNICIPAL LAW IN MISSOURI.
Sewers are mere covered drains, natural or artificial, for carrying surface waters and house drainage in a sanitary and inoffensive manner and their construction and maintenance is essentially governmental in respect to their character, purposes and intents, and can only subserve public good. They can never be a source of private corporate gain. They should therefore come under the same rule as hospitals, insane asylums, poor houses, work houses, fire departments and police departments. The courts in Missouri have held that a city is not liable for a defective or insufficient plan for a sewer because it is of such a character as involves municipal judgment and discretion, but that the doing of the work under the plan is ministerial and the city is liable for negligence in the execution. Thurston vs. St. Joseph, 51 Mo., 510. In so deciding the Court fails to follow the cases of St. Louis vs. Gurno, 12 Mo., 414; Taylor vs. St. Louis, 14 Mo., 20, and Hoffinan vs. St. Louis, 15 Mo., 651, which were based upon the true distinction of municipal liability.
The result of this unfortunate departure from fundamental principles is illustrated by the decision in Fuchs vs. St. Louis, 133 Mo., 168, where the city was attempted to be made liable for the explosion of a public sewer, caused by the river stopping up its mouth, oils escaping into the sewer from a burning building and gases being generated from the oils, on the ground that the city had been negligent in the care of the sewer. The historical, fundamental and legal principles so often above set forth herein, and always pretended to be observed and followed by all courts, were neither discussed, adopted, overruled or observed in this decision, but a liability was declared without any reference to principle or precedent.
It is interesting to follow the reasoning of the Court in this case. It is this: It is a matter of scientific knowledge of which the Court will take judicial notice, that petroleum oils generate gases when subjected to heat :- "Carefully managed sewers do not, according to the common experience of inen, usually blow up and scatter destruction and death. Such performance is of itself entitled to consideration on the issue of care in respect of such property, or as some jurists have said, 'the thing itself speaks.' " What foresight the city should have exercised, "it would be very difficult to say."
Scientific knowledge does teach that the products of petroleum generate gases, but it also teaches us that such gases are two and a half times heavier thian air, and hence if they are generated in a sewer they will not rise to and escape from the vents of the sewer. The common experience of mnen is that the best managed sewers blow up and scatter destruction and death, and that no scientist has yet been able to explain the reason or to suggest a practical, efficient method of preventing sewer explosions, any more than explosions of mines, which are constantly occurring. "The thing itself speaks," but science has found itself at its wits' ends, just as the Court confessed itself to be, to say what foresight should be used to prevent such accidents.
This decision cannot be accepted as establishing a rule of action in Missouri. It will be binding only until overruled, and it will be overruled as soon as the question again comes before the Supreme Court.
PUBLIC WORK.
So much scandal and just complaint arose out of "jobs" in municipal work, that nearly all cities in Missouri have provided by their organic law that all public work shall be let by competitive bidding under the authority of ordinances prescribing the character and
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THE HISTORY OF THE BENCH AND BAR OF MISSOURI.
extent of such work, the materials to be used, limiting the payments to the amount appro- priated for the specific purpose, and providing that the city should not be bound by the act of any officer unless the officer had express power to bind the city, and taking away the power of the city to ratify an authorized act of an officer. The purpose of these provisions was certainty as to the work being done, to preserve municipal credit by not incurring liabilities beyond the available resources of the city to pay promptly for the same, to keep officers strictly within their powers, to inform the people before the work was done exactly how much of their money would be expended for it or to let them know how much would be charged against their property as a special benefit, and to stop the practice of "extras" under municipal contracts.
The courts rigidly enforced all these provisions, and logically held that contractors were bound to know that the officer ordering the work had power to do so. Cheeney vs. Brookfield, 60 Mo., 53; Mester vs. Kansas City, 18 Mo. Ap., 217; Thompson vs. Boonville, 61 Mo., 282; St. Louis vs. Clemens, 52 Mo., 133; Leathers vs. Springfield, 65 Mo., 504; Louisiana vs. Miller, 66 Mo., 467; Forry vs. Ridge, 56 Mo. Ap., 615; Maupin vs. Franklin County, 67 Mo., 330; Johnson vs. School District, 67 Mo., 319; McKissock vs. Mt. Pleas- ant Township, 48 Mo. Ap., 416; Parkinson vs. St. Louis, 4 Mo. Ap., 322; Carroll vs. St. Louis, 4 Mo. Ap., 191; Thrush vs. City of Cameron, 21 Mo. Ap., 394; Saxton vs. St. Joseph, 60 Mo., 153; Keating vs. Kansas City, 84 Mo., 415.
In the case last cited the Court said: "The requirements of the charter in such cases is the only touchstone of corporate liability. Upon that the contractor with the city must rely. To establish any rule in order to meet the hardships of this hard case would result in incalculable mischief and the overthrow of the organic law of the city."
These cases giving effect to the purpose and express command of the law would seem to have been sufficient to clearly imbed them in the jurisprudence of the State. Yet in Steffen vs. St. Louis, 36 S. W. Rept., 31, the Supreme Court of Missouri ignored and failed to follow all these precedents and allowed a contractor to recover from the city "extras" for doing public work, which by the charter, ordinances and contract, was to be paid for by special assessments against private property, which was not embraced in the competitive bidding and for which no appropriation had been made before the work was done, and which the officer alleged to have ordered the work had no power under the . organic law to order or to fix the price for, and in fact liad fixed no price for.
The decision is placed upon the ground that the contract authorized the officer to order "extras," did order them and the contractor did the work, and that it would be unconscion- able to permit the city to take advantage of the work and not pay for it.
The organic law expressly forbade such a provision in the contract and gave the officer no such power. The contractor is charged with knowledge of the charter limitations and of the invalidity of such a clause and thie want of power in the officer, and was no inore entitled to recover in this case than were the contractors in the various cases above cited who were denied the right to recover. So far as is known this is the one instance in Mis- souri where the courts have departed from the wholesome and necessary safeguards of the organic law, and from the line of decisions recognizing and upholding themn.
Our courts have alwas construed strictly the power of the city and its officers, where the city was attempting to do any act, and unless reference could be made to the provision of the organic law expressly conferring the power, or it was a miere incident to the power conferred, the right has always been denied.
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MUNICIPAL LAW IN MISSOURI.
With but few exceptions the courts have likewise construed the law with reference to claims of third persons against the city arising out of the acts of its officers, notwithstand- ing it is being constantly pressed to modify the rule. But when it is remembered that pub- lic officers are mere trustees, acting within defined and limited organic powers, and that every citizen is charged with knowledge of what the laws of his country are, it will be readily seen that the courts adopt not only the legal but a wise and necessary construction; and that any other view would inevitably lead to public scandal, waste of public revenue, and financial embarrassment and consequent impairment of its credit and possibly bank- ruptcy .
Many other instances and illustrations of municipal law in Missouri could be referred to, but would extend this article into a book, and hence must be omitted.
Upon the whole it can fairly be claimed that the charters of the cities in Missouri com- pare favorably with those of any other cities, and that the statutes of Missouri providing the charters for cities, towns and villages, were wisely and carefully drawn, but first rank and place must be accorded to the City of St. Louis. It was framed pursuant to Constitutional authority by a board of thirteen freeholders, and is a masterpiece of organic law and a per- petual monument to their wisdom, patriotism and foresight. With a few amendments, which the changed and improved conditions of the age require, it is a model. In fact it has been adopted as a model by the framers of the charter of Greater New York.
St. Louis, Mo., January, 1898.
RECOLLECTIONS OF THE CRIMINAL PRACTICE.
BY CHARLES P. JOHNSON.
M Y earliest recollections of the criminal practice in St. Louis was when the Criminal Court was held in the upper story of the Fourth Street front of the Court House. It was originally built of stone and brick, but was afterwards torn down and reconstructed as at present. The criminal business had increased to such an extent that it was deemed nec- essary, in the year 1839, to establish a separate court for the trial of indictments of felonies and misdemeanors. It also had appellate jurisdiction of city cases. This assigned jurisdic- tion made the court one of the most important in the city. The first Judge under the act creating the court was James R. Bowlin. He was elected by the joint vote of the two houses of the General Assembly, and served about six years. He afterwards served in Congress, and was Minister Resident to New Granada and Commissioner to Paraguay. He was succeeded by Judge Manning, a nephew of Chief Justice Taney, and Judge Colt, a connection of Colt, the inventor of the revolver of that name. In the year 1853, James R. Lackland was elected to the Judgeship of the Criminal Court, and before this tribunal, fromn that time on, many of the inost noted and exciting trials of the West took place.
The criminal bar at about the period mentioned, presented a remarkable array of bril- liant practitioners. It was unexcelled by any city in the United States. O'Connor, Brady and Graham, of New York, were still in their prime. John Paul Brown, of Philadelphia, had a national reputation. Choate and Sorhies were still at the bar in Boston. Prentiss died in 1850. Ben Harden, Tom Marshall and Crittenden still sustained the reputation of Kentucky, and here and there, all over the South and West, were great forensic advocates. But St. Louis rivaled all other cities in the number and excellence of her lawyers in this branch. In 1855, when I commenced the study of law, Myron Leslie, partner of R. M. Field, fatlier of the lately deceased Engene Field, was Circuit Attorney of this circuit and bearing a splendid reputation, had just passed away. Henry S. Geyer had given up the practice for the United States Senate. A. P. Field, formerly Secretary of State of Illinois and later Attorney General of Louisiana, the man who in earlier days had so ably conducted the prosecution of the members of the mob who killed Duncan in Madison County, Ill., tried before the late Judge Koerner at Belleville, and defended with equal ability by the lately deceased Lyman Trumbull and Joseplı Gillespie, was already increasing his reputa- tion in Louisiana. There was still appearing at the bar of this court, however, Edward Bates, Uriel Wriglit, Richard S. Blennerhassett, James R. Lackland, Henry A. Clover, Wilson Primm, Christian Kribben, George W. Cline, Charles G. Mauro, C. C. Simmons, L. M. Shrcve, Thomas B. Hudson, R. F. Wingate, T. G. C. Davis, and John M. Krum. William C. Jones, James J. McBride, Thomas C. Chester, Church Blackburn, R. S. Mc- Donald and Seymore Voullaire had just entered upon the course. Blackburn inet his death in the Gasconade disaster, and a brilliant future ended in the untimely death, by consump- tion, of Cliester.
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RECOLLECTIONS OF THE CRIMINAL PRACTICE.
Judge Lackland had been Prosecuting Attorney immediately before his elevation to the bench, and had made a great reputation by the earnest, industrious and fearless way in which he discharged his duty in that office. Pitted against men like Bates, Geyer, Blen- nerhassett, Wright and Primm, his ambition was aroused to the highest degree, and what he lacked in rhetoric and eloquence, he made up in other qualities, notably in industry, honesty and sincerity of purpose. He was, in truth, a self-made man. Reared on a farm, he had a very meager education and worked against apparently insuperable difficulties. He was always an invalid, but nevertheless mastered his profession by the exercise of his indomitable will, and became a most forcible advocate and able lawyer. During his term as Prosecuting Attorney he successfully prosecuted many noted cases, against the ablest men at the bar, and the reports of the Supreme Court of that time contain many of his briefs, all remarkable for the labor expended and the exhaustless research shown in their preparation.
A celebrated case during liis term as Prosecutor, was that of the two French noblemen, Raymond and Gonsalve de Montesquieu, brothers. They were indicted for the felonious killing of young Kirby Barnumn, nephew of Theron Barnum, who afterwards kept the hotel bearing his name, at the corner of Second and Walnut Streets, and a boarder named Albert Jones. At that time he was the proprietor of the City Hotel located on Third Street, near Vine. These noblemen had been traveling in the West for some time for purposes of observation and hunting. They had been in the city but a short time, and located at the hotel mentioned, when, on the night of October 29, 1849, the younger of the two seized a double-barreled shotgun, left his room, and without saying a word or giving any indication of his intention, shot and instantly killed young Barnumn. A guest or attache of the hotel, who rushed toward the parties, was also shot dead. The tragedy was a fearful one and caused great excitement. The excuse given by Gonsalve was, that he was seized witlı an irresistible impulse to kill two inen, and he did so. At that time, our police force was not so extensive or efficient as it has since become. Mob spirit was aroused, and it required a good deal of determination on the part of the law-abiding citizens and the spiriting away of the prisoners to Jefferson Barracks to prevent a resort to lynch law. Although the shooting was done by but one of the brothers, the presence and action of the other and the accon1- panying circumstances of the tragedy caused an indictment to be brought against both the parties. As might be expected from the circumstances, as narrated, a question arose imine- diately as to the sanity or insanity of the defendants, and that was set up as a defense by their attorneys. Entire absence of motive caused many reflecting men to think that the act was the outcome of insanity; but at that time as at present, the prejudice against the plea of insanity existed among the people, and, notwithstanding the able defense made, an acquittal before a jury never was obtained. The defense was conducted by Edward Bates, H. S. Geyer, Wilson Primm and Mr. Charles Gibson. Lackland prosecuted with unwonted vigor and ability, assisted by Uriel Wright, and gained a decided reputation by the manner in which he conducted his side of the case. A majority of the people of the city were car ried away to such an extent by prejudice, that, notwithstanding the efforts made in behalf of the defendants, aided by the testimony of some of the ablest experts and proof of ancestral insanity, his attorneys failed to convince the jury of the existence of insanity at the time of the shooting by the young nobleman. Two mistrials occurred before the disposition of the case. Shortly after the second trial, a strong effort was made by the attorneys interested in the defense to induce the Governor to interfere and grant a pardon to the accused. The
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