State ex rel. Dennis v. Williams, 42206
| Decision Date | 11 June 1951 |
| Docket Number | No. 42206,42206 |
| Citation | 240 S.W.2d 703,362 Mo. 176 |
| Parties | STATE ex rel. DENNIS v. WILLIAMS. |
| Court | Missouri Supreme Court |
Gilbert Weiss, St. Louis, for relator.
James E. Crowe, James B. Steiner and Oliver T. Johnson, all of St. Louis, for respondent.
On July 26, 1950, relator filed her petition in this court asking that a writ of prohibition be issued against respondent. Our preliminary rule was issued and respondent, for his return, filed demurrer to the petition and the preliminary rule upon the grounds that they do not state facts sufficient to constitute a cause of action; and, that, under the Constitution and laws of Missouri and the Charter of the City of St. Louis, the trial of exceptions in condemnation proceedings in said city is not required to be held before a common law jury of twelve persons. Under this state of the record, we must accept as true all proper allegations of the petition.
The petition alleges that respondent is a judge of the Circuit Court of the City of St. Louis and is presiding in Division 7 of said court; that relator is one of the defendants in a condemnation proceeding brought by said city pursuant to a certain ordinance providing for such a proceeding 'to ascertain the damages and special benefits by reason of the establishment and change of grade' of a certain street in said city; that the change of grade would damage relator's property fronting on said street; that in proceeding in accordance with the city charter in effect at that time, the Circuit Court referred the determination of damages of (relator's) property to the Permanent Condemnation Commission; that said commission (composed of three freeholders) proceeded to make its award and assessed relator's damages; that within the time allowed, relator filed her exceptions to said award, and also filed a motion requesting that she be granted 'a jury trial in accordance with the Constitution and the Laws of the State of Missouri, in particular the Laws of 1943, p. 623'; that respondent overruled said motion and is threatening to try said exceptions without a jury and has set said cause for trial on July 28, 1950; and that she has no adequate remedy by appeal. Relator does not question the validity of the preliminary steps taken by the city under its charter leading up to the filing of the petition in condemnation, nor does she question the sufficiency of the petition. Her sole contention is that, when she filed exceptions to the report of the commissioners and requested a trial by jury, she was entitled to a jury of twelve persons.
It is conceded that the city proceeded under and in accordance with the applicable provisions of its charter. Sec. 7, Art. 21 of the charter, defines the procedure if exceptions are filed to the commissioners' report and provides that the court shall review the report and may order a new assessment under additional instructions or may appoint a new commission of three persons to make another assessment; and shall hear and dispose of such exceptions with all reasonable speed, and may itself assess benefits anew.
However, relator contends that such procedure is in conflict with certain statutory and constitutional provisions which guarantee to her a trial by a common law jury. She relies on Secs. 523.060, 88.080 and 88.090, R.S.1949; Art. 1, Secs. 22 and 26; Art. 11, Sec. 4, of Missouri Constitution 1945, and the Fourteenth Amendment of the Constitution of the United States.
Sec. 523.060, originally passed, Laws 1943, p. 623, and amended Laws 1945, p. 1072, provides: 'Any plaintiff or defendant, individual or corporate, shall have the right of trial by jury of twelve persons, if either party files exceptions to the award of commissioners in any condemnation case.'
The rights conferred by this statute, and the cited constitutional provisions, were recently considered by this court en banc in East Park Dist. of Kansas City v. Dougherty, 237 S.W.2d 118. The court divided four to three on the question of the effect of said Sec. 523.060. The majority of the court concurred in the opinion of Dalton, J., holding that said section did give to an...
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Kansas City v. Webb, 35677
...a common law jury, without the parties having raised the constitutional questions now before the Court. In State ex rel. Dennis v. Williams, 362 Mo. 176, 240 S.W.2d 703 (1951), in St. Louis, a charter city, damages for a change of grade of several individuals were awarded under the charter ......
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City of St. Louis v. Gruss
...by its charter.' Our preliminary rule in prohibition was ordered discharged and a peremptory writ denied. State ex rel. Dennis v. Williams 362 Mo. 176, 240 S.W.2d 703, 705. When appellant's exceptions to the Commissioners' award of damages came on for hearing in the circuit court of the Cit......
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...merely saying that it is not bound by them. East Park, supra, was decided in February 1951. In June of that year, in State v. Williams, 362 Mo. 176, 240 S.W.2d 703 (1951), the court had occasion to discuss the two opinions, Judge Ellison's and Judge Dalton's, and all of the judges concurred......