City of St. Louis v. Bell Place Realty Co.

• Decision Date: 23 June 1914
• Citation: 168 S.W. 721,259 Mo. 126
• Parties: CITY OF ST. LOUIS v. BELL PLACE REALTY COMPANY et al., Appellants
• Court: Missouri Supreme Court

168 S.W. 721

259 Mo. 126

CITY OF ST. LOUIS v. BELL PLACE REALTY COMPANY et al., Appellants

Supreme Court of Missouri, Second Division

June 23, 1914

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

Reversed.

Lewis & Rice and C. R. Skinker for appellants.

(1) The separate judgments for benefit assessments and order for issuance of executions thereon were void. St. Louis v Brinckwirth, 204 Mo. 280. This invalidity of these constituent elements of the judgment nullifies the whole record entry which is an entirety. State ex rel. v Gill, 84 Mo. 248. (2) Ordinance 24,085 either provides for a boulevard, in which case appellants' lands cannot be assessed because not within the benefit district fixed by charter (Charter, sec. 1, art. 6); or is so ambiguous that the doubt as to its meaning must be resolved in favor of appellants' exemption from assessment. Chillicothe v. Henry, 136 Mo.App. 474; St. Louis v. Brinckwirth, 204 Mo. 304; United States v. Wigglesworth, 2 Story, 373; Powers v. Barney, 5 Blatchford, 202; United States v. Watts, 1 Bond, 583; Land Co. v. Banbury, 106 Cal. 134; Brown v. Commonwealth, 98 Va. 366; Supervisors v. Tallant, 96 Va. 723; Smith v. Waters, 25 Ind. 397; Re Enston's Will, 113 N.Y. 174. The ordinance being void, the remedy is dismissal of the case. Kansas City v. Hyde, 196 Mo. 498. (3) Jurisdiction to assess appellants' property never attached because the publication of notice required by Ordinance 878 was only for three days before the day of hearing was actually held, while the ordinance required five days. 1 Cooley on Taxation (3 Ed.), pp. 485-6; Re Bledsoe Hill, 200 Mo. 643; Leavitt v. Eastman, 77 Me. 117; Young v. Downey, 145 Mo. 250; Young v. Downey, 150 Mo. 328; Bird v. Norquist, 46 Minn. 318; Brownfield v. Dyer, 7 Bush. 505; Bank v. Bank, 89 N.Y. 397. (4) The notice given by the "acting and associate city counselor" does not comply with Ordinance 878, which requires the notice to be given by the "city counselor." Stifel v. Cooperage Co., 38 Mo.App. 340; McQuiddy v. Vineyard, 60 Mo.App. 610.

William E. Baird and Elmer E. Pearcy for respondent.

(1) Special judgments for benefits assessed and order for issuance of execution thereon as a method of collecting the same are valid in a case of this sort, if supported by proper charter and ordinance provisions. Kansas City v. Ward, 134 Mo. 180; Kansas City v. Mastin, 169 Mo. 89; Kansas City v. Duncan, 135 Mo. 571; Eyssell v. St. Louis, 168 Mo. 607, overruled by St. Louis v. Brinckwirth, 204 Mo. 280; Kansas City v. Bacon, 147 Mo. 259, 157 Mo. 450; Kansas City v. Oil Co., 140 Mo. 458; State ex rel. v. Field, 99 Mo. 356; St. Louis v. Realty Co., 175 Mo. 63; St. Louis v. Ranken, 96 Mo. 497; Shaffner v. St. Louis, 31 Mo. 264; Charter of Kansas City (1909), sec. 17, art. 13; Charter of St. Louis, art. 6, secs. 5, 11; Revised Code of St. Louis (1907, Woerner), secs. 877, 878, 879, 880, 881, and 1373; Revised Code of St. Louis, 1912 (Rombauer), secs. 1068, 1069, 1070, 1071, 1072, and sec. 1833; R. S. 1909, secs. 8702, 8735, 8738 and 8739; Stid v. Railroad, 211 Mo. 411. (2) The public highway authorized to be condemned by this action is not a boulevard in the sense that that term is used in section 1 of article 6 of the charter, and benefits, therefore, could be assessed against property not fronting upon the highway to be opened. Elliott on Roads and Streets (2 Ed.), secs. 1 and 3; Dillon on Municipal Corporations (5 Ed.), secs. 1121, 695; Park Comrs. v. Farber, 171 Ill. 160; Howe v. Lowell, 171 Mass. 575; St. Louis v. Handlan, 242 Mo. 88; St. Louis v. Hill, 116 Mo. 527; St. Louis v. Dorr, 145 Mo. 466. (a) The ordinance does not impose any limitation or restriction upon the property fronting upon the highway to be opened, nor upon the use of the highway; and these restrictions are the reasons for limiting the benefit district. (b) A boulevard is not a public highway in the sense that it is open to the public for all the uses known to the law for a highway. It is a public highway only in a restricted and limited sense, certain rights of user to the public being denied. If these limitations and restrictions do not appear in the ordinance, they cannot be condemned. St. Louis v. Handlan, 242 Mo. 88. (c) The mere fact that for convenience in terminology the street to be opened in this case was called a boulevard does not make it such in fact. (d) In order to limit the taxing district, in accordance with section 1 of article 6, for the opening of a boulevard, restrictions must be imposed which are of advantage to the property holders fronting upon the boulevard to be opened. (e) If at any later date, the city desires to make a boulevard in fact out of this highway, it will be necessary to bring a condemnation suit to change this street into a boulevard. Sec. 1, art. 6, Charter. (3) The notice given by Mr. Charles, who was acting city counselor at the time, as shown by the record, was proper. The commissioners fixed the time of their first meeting and the boundaries of the benefit district. He simply put the notice in proper legal form and caused it to be published. Ordinance 878 (Municipal Code, 1907); Throop on Public Officers, sec. 570, p. 539.

BROWN, J. Walker, P. J., and Faris, J., concur.

OPINION

BROWN, J.

This is an action to condemn lands for a street in the city of St. Louis, and to assess benefits against other lands to cover the damages arising from such condemnation.

The appellants own lands against which benefits have been assessed, but their lands do not front or border upon the proposed street. Appellants did not enter their appearance in the action wherein alleged benefits were assessed against their lands until final judgment had been entered against them. Within four days after the entry of judgment they filed a motion to arrest said judgment, because:

(1) The ordinance of the city of St. Louis upon which this suit is based directs the establishment of a boulevard, whereas the suit is for the establishment of a street.

(2) Five days' notice was not given to the appellants of the time and place fixed by the commissioners for hearing landowners and assessing benefits against their property.

(3) The notice to landowners of the time and place set for assessing benefits was issued by the acting and associate city counselor, instead of the city counselor as required by the ordinance of said city.

(4) The court was without jurisdiction to enter the judgment assessing benefits.

For an understanding of the law upon which this cause must be decided, it will be necessary to examine some of the provisions of the charter of St. Louis. It is conceded by all of the parties that said charter authorizes the Municipal Assembly, by ordinance, to cause to be established both boulevards and streets; also that the cost of establishing boulevards must be taxed against the lands fronting or bordering on said boulevard, while a substantial portion of the cost of establishing streets may be assessed against lands which are benefited by the construction of such streets, but which do not front or border thereon. The ordinance upon which this proceeding is based designates the highway sought to be established as a "boulevard." The body of the petition follows the language of the ordinance and does not use the word street, or indicate that a street is to be established, except by the prayer thereof, wherein it demands the appointment of commissioners to ascertain what lands will be benefited by the proposed highway, and to assess benefits against such lands.

As the cause turns upon the sufficiency of the petition and the ordinance recited therein, we will insert the same here. Omitting style of case, the petition reads as follows:

"That on or about the 21st day of December, 1908, an ordinance of the city of St. Louis, State of Missouri, numbered 24,085 went into force and effect, having been duly enacted by the Municipal Assembly of said city, upon the recommendation of the Board of Public Improvements of said city, in writing, and approved by the Mayor of said city, on December 11, 1908, the purpose whereof is to establish and open Kingsbury boulevard from De Baliviere avenue eastwardly for a distance of about 630 feet, as a public highway 100 feet wide, the lines thereof to run as follows: From De Baliviere avenue eastwardly to the prolongation southward of the west line of property now or formerly owned by Henry H. Wellman, in United States survey No. 378, a distance of about 630 feet; the center line to run 50 feet north of and parallel to the north line of property now or formerly owned by Samuel, Margaret P. and Sarah E. Simmons, in city block 3875, recorded in deed book 1612, page 1, all in the city of St. Louis, State of Missouri, pursuant to the provisions of ordinance of the city of St. Louis, State of Missouri, numbered 24085, which ordinance is in words and figures as follows:

"'An ordinance to establish and open Kingsbury boulevard from De Baliviere avenue eastwardly for a distance of about six hundred and thirty feet.

"'Be it ordained by the Municipal Assembly of the city of St. Louis as follows:

"'Section One -- Kingsbury boulevard from De Baliviere avenue eastwardly to the prolongation southward of the west line of property now or formerly owned by Henry H. Wellman, in United States survey number 378, a distance of about six hundred and thirty feet, is hereby established as a public highway one hundred feet wide, the center line thereof to run fifty feet north of and parallel to the north line of property now or formerly owned by Samuel, Margaret P. and Sarah E. Simmons in city block number 3875 (recorded in deed book 1612, page one).

"'Section Two -- The city counselor is hereby authorized and...