City of St. Louis v. Calhoun
| Citation | 120 S.W. 1152,222 Mo. 44 |
| Parties | CITY OF ST. LOUIS v. CAROLINE E. CALHOUN and JOHN R. CALHOUN, Appellants |
| Decision Date | 31 May 1909 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis City Circuit Court. -- Hon. W. M. Kinsey Judge.
Affirmed.
John W Calhoun and Bernard Greensfelder for appellants.
(1) The charter provisions under which this action was instituted having been repealed and there being no saving clause providing for the continuation of suits pending at the time of the adoption of the amendment, the proceedings must fail. Had the revised charter intended that all proceedings should continue for alley or street openings instituted prior to the date of the amendment going into effect, a saving clause like that under article 16, section 4, of the Scheme and Charter would have been inserted. Com. v. Marshall, 11 Pick. 350; Com. v. Kimball, 21 Pick. 373; Norris v. Crocker, 54 U.S. 440; U. S. v. Tynen, 78 U.S. 88; Barton v. Incorporation of Gadsden, 79 Ala. 495; Naylor v. City of Galesburg, 56 Ill. 285; In re Town of Rutherford v. Swink, 96 Tenn. 564; City of Burlington v. Estlow, 43 N. J. L. 13; Kansas City v. Clark, 68 Mo. 588; Yall v. Gillham, 187 Mo. 393; City v. Stoddard, 15 Mo.App. 178. (2) Though a subsequent statute be not repugnant in all its provisions to a prior one, yet if the latter statute was clearly intended to prescribe the only rules which are to govern, it repeals the prior one. Davis v. Fairharn, 44 U.S. 636; U. S. v. Barr, 4 Sawy. 254; State v. Conkling, 19 Cal. 501; Gorham v. Luckett, 45 Ky. 146. The amendment of a statute operates as an absolute repeal of the old statute or section so amended even if the amendment takes nothing from the old law, but merely adds a proviso in certain cases. Billings v. Hurvey, 6 Cal. 381; Hoffman v. Hall, 102 Cal. 26; State v. Duval Co., 23 Fla. 483; Breitung v. Lindmer, 37 Mich. 217; In re Prime, 136 N.Y. 347; State v. Andrews, 20 Tex. 230; State v. Ingersoll, 17 Wis. 631. (3) The right of eminent domain is construed with the utmost strictness. Ells v. Railroad, 51 Mo. 200; Belcher Sugar Co. v. Grain Co., 82 Mo. 121; State v. Fanelly, 36 Mo.App. 282. The statute authorizing it must be strictly adhered to, and every prerequisite to the exercise of jurisdiction observed. Leslie v. St. Louis, 47 Mo. 474; Belcher Sugar Co. v. Grain Co., 82 Mo. 121; St. Louis v. Glensin, 89 Mo. 67; State v. Fanelly, 36 Mo.App. 282; Four v. Hope, 48 Mo.App. 254. (4) If city counselor's notice is not in compliance with the city charter and municipal ordinances and all defendants were not served personally, or by ordinary order of publication, judgment is void. 2 Lewis on Eminent Domain (2 Ed.), sec. 367; City v. Roch, 169 Mo. 591; In re Central Park, 51 Barb. 277; State v. City of Elizabeth, 32 N. J. L. 357; Amackinbusch v. District of Columbia, 20 D. C. 308; Williams v. Kirby, 169 Mo. 622; Simmons v. Dardiner, 6 R. I. 255. (5) The city can only acquire jurisdiction of the proceedings to lay out a highway by a strict compliance with the statutory directions, and no consent of the applicants for the highway or the persons through whose lands the same is laid out can validate the proceedings or estop them from questioning their validity, if the city has failed to comply with the statutory requirements. Ruhland v. Supervisors of Hazel Green, 55 Wis. 664; Austin v. Allen, 6 Wis. 134; York County v. Fewell, 21 S.C. 106; State v. Marble, 26 N.C. 318. (6) Where proceedings under a former law had been commenced and a warrant to the sheriff to summon a jury had been issued, but nothing further had been done, when a later act took effect, the city had no authority to proceed any further. Wade v. St. Mary's Industrial School, 43 Md. 178; Asphalt Paving Co. v. Ullman, 137 Mo. 543. (7) The exceptions to the commissioner's report should have been sustained for the reason that the award of the commissioners was not sufficient to properly compensate the appellants for the damages sustaind by them, and for the further reason that no benefits should have been assessed against these parties.
Charles W. Bates and James G. McConkey for respondent.
(1) The report of commissioners in a condemnation proceeding to open a highway should not be set aside unless the trial court is clearly satisfied that the commissioners have erred in the principles on which they made their appraisals, and unless the damages awarded by the commissioners were so flagrantly inadequate or excessive as to justify an interference by the court there is nothing for review, and their report should not be disturbed. What is here said of the damages awarded applies with equal force to the benefits assessed. St. Louis v. Lannigan, 97 Mo. 178; Railroad v. Richardson, 45 Mo. 468; St. Louis v. Brown, 155 Mo. 567; St. Louis v. Abeln, 170 Mo. 324; 2 Lewis on Eminent Domain (2 Ed.), sec. 524; Mills on Eminent Domain, 246. Unless mistake, fraud, prejudice, or passion manifest themselves in the rendition of a verdict, the Supreme Court will not interfere in law cases by weighing the evidence on which the verdict is found, especially where the evidence is conflicting. St. Louis v. Lannigan, 97 Mo. 178; St. Louis v. Abeln, 170 Mo. 324; St. Louis v. Brown, 155 Mo. 567; Fulkerson v. Mitchel, 82 Mo. 22; Grove v. Kansas City, 75 Mo. 676; Krider v. Milner, 99 Mo. 145; St. Louis v. Lane, 110 Mo. 260; Mills on Eminent Domain, 246. (2) The city counselor's notice in this case is in compliance with the charter and municipal ordinances. The block in which benefits are to be assessed is not only named by number, but bounded by the surrounding streets. Sec. 878, Revised Code of St. Louis (Woerner, 1907); St. Louis v. Brinckwirth, 204 Mo. 304; St. Louis v. Rankin, 96 Mo. 506; St. Louis v. Koch, 169 Mo. 591. In a proceeding to establish and open an alley, the benefit district is defined by the charter, and confined to the block in which the alley is opened. Sec. 5, art. 6, charter of St. Louis; St. Louis v. Brinckwirth, 204 Mo. 304; St. Louis v. Rankin, 96 Mo. 506; St. Louis v. Koch, 169 Mo. 591. (3) It was not necessary to make all the persons who owned property in the block defendants in the condemnation petition in this case, irrespective of whether or not their land was to be appropriated or damaged, but only such persons whose property was to be taken or damaged should have been made parties defendant in said petition. St. Louis v. Rankin, supra; St. Louis v. Brinckwirth, supra. (4) The changes made by the amendments in the mode of procedure, as set out in article 6 of the charter, were not such as to necessitate the dismissal of this suit. When the Constitution gave to the city the right to provide by charter for the condemnation of private property for public uses, it left to the city the right to prescribe in its charter and ordinances the manner in which the courts and parties should proceed when such property is to be appropriated for public uses under said charter provisions. K. C. v. Marsh Oil Co., 140 Mo. 472; State ex rel. v. Field, 99 Mo. 357. The mode of procedure provided for in the charter to govern in condemnation proceedings brought thereunder is found in sections 1 to 11, inclusive, of article 6 thereof. These are sections some of which were amended by the amendments of 1901. This mode of procedure takes the place of the general laws of the State relative to such proceedings, so far as it is in harmony with and subject to the laws of the State. K. C. v. Oil Co., 140 Mo. 472; State ex rel. v. Field, 99 Mo. 357; 1 Lewis on Eminent Domain (2 Ed.), sec. 247; Uwchlan Township Road, 30 Pa. St. 157; Hickory Tree Road, 43 Pa. St. 143; Rosenfeldt v. Railroad, 180 Mo. 564; State v. Jackson, 105 Mo. 199; Duncan v. Mo., 152 U.S. 382; Thompson v. Mo., 171 U.S. 388.
By Ordinance No. 20280 the Municipal Assembly of the city of St Louis established a fifteen-foot alley through City Block No. 1307, the south line of said alley to be one hundred and thirty-five feet south of the south line of Geyer avenue. City Block No. 1307 is bounded on the north by Geyer avenue; on the south by Allen avenue; on the west by Longfellow boulevard, and on the east by Nebraska avenue. Defendant, Caroline E. Calhoun, is the owner of lots 1, 2, 23 and 24 in said city block, which are used as one tract and in one inclosure, having a fifty-foot front on Geyer avenue. Back forty feet from the building line there is situated a double house of two stories and a basement, forty-two feet in width, each side having ten rooms and a basement. These houses extend back to within about thirty-four feet of the proposed alley and the back steps to within about 22.5 feet of said proposed alley. The steps extend 11.5 feet further south than the walls of the house. To the south and west of the house and flush with Longfellow boulevard is a shed twelve by thirty feet, in which are located closet vaults for use from the downstair rooms of the two houses, there being toilet rooms on the upper story of the house. The proposed alley takes the northern portion of this shed and the northern portion of the vaults therein. The rear portion of the tract of four lots was used as a yard in connection with the houses, and was set with trees and shrubbery, a portion of which would be taken by the proposed alley. The width of the tract, as above stated, is a fraction over fifty feet on Geyer avenue, and the depth a fraction over two hundred and seventy-one feet. Originally the tract was the same width on Allen avenue, but in the construction of Longfellow boulevard, the south end of the tract was reduced to a width of about thirty-five feet, a portion being taken off of lot 24, which at that end was originally twenty-five feet and now a fraction more than ten feet. Lot 23 was left intact at the...
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