City of St. Louis v. Excelsior Brewing Co.

• Decision Date: 04 February 1889
• Citation: 10 S.W. 477,96 Mo. 677
• Parties: City of St. Louis, Appellant, v. The Excelsior Brewing Company
• Court: Missouri Supreme Court

10 S.W. 477

96 Mo. 677

City of St. Louis, Appellant, v. The Excelsior Brewing Company

Supreme Court of Missouri

February 4, 1889

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Reversed and remanded.

Leverett Bell and T. H. Culver for appellant.

G. M Stewart for respondent.

Black J. Ray, J., dissents.

OPINION

Black, J.

This is a suit on a special tax-bill issued by the comptroller of the city of St. Louis, because of benefits assessed against defendant's property by commissioners appointed, in a proceeding in the St. Louis circuit court, to condemn property for the purpose of widening Eighteenth street from Clark avenue north-wardly for a distance of about one hundred and ninety-one feet. The commissioners assessed the benefits at one thousand and ninety-three dollars, and the tax-bill is for that amount. There was a verdict and judgment for the plaintiff, but it is for three hundred dollars only, and the plaintiff appealed.

Some exceptions were taken by the plaintiff to the introduction of evidence by the defendant, but since these rulings are not made a ground of complaint in the motion for a new trial, we cannot consider them here.

The court, by the second instruction given at the request of defendant, told the jury that in making up the amount of their verdict they should disregard the report of the commissioners, made in the suit to condemn property for widening Eighteenth street. In this the court erred. The questions whether the defendant's property was benefited and to what extent it was benefited by the widening of the street, are settled and determined by the report of the commissioners, and are not open to fresh inquiry in a suit on the special tax-bill. This we held in the recent case of City of St. Louis v. Ranken, ante, p. 497. The tax-bill sued on in that case and the one sued on in this case were issued on the same report. The report of the commissioners, instead of being disregarded by the jury, should have been taken as the only evidence of the amount of the benefits. This is so, unless there is some provision which makes the tax-bill prima-facie evidence of the matters stated therein, and of this we are not advised.

The instruction given at the request of the plaintiff seems to be based upon the erroneous supposition that the jury in this suit could fix and assess the benefits, but that does not cure the error in excluding the report....