City of St. Joseph v. Truckenmiller
| Citation | 81 S.W. 1116,183 Mo. 9 |
| Parties | CITY OF ST. JOSEPH v. TRUCKENMILLER, Appellant |
| Decision Date | 20 June 1904 |
| Court | United States State Supreme Court of Missouri |
Appeal from Buchanan Circuit Court. -- Hon. W. K. James, Judge.
Affirmed.
Chas C. Crow for appellant.
(1) The statute does not make the taxbills prima facie evidence and therefore, all the proceedings must be alleged in a petition to enforce payment. R. S. 1899, section 5648, et seq.; St. Louis v. Rankin, 96 Mo. 507; Haegelee v Mallinckrodt, 46 Mo. 577. (2) (a) Insofar as the statutes (5648, et seq.) provide that proceedings may be had before a judge in vacation, the same are void. The question to be decided was whether the property was being taken for a public purpose. The question in all such cases is a judicial question and can not be adjudicated by a judge in vacation. State ex rel. v. Woodson, 161 Mo. 444; Constitution, sec. 20, art. 2. (b) Under the statutes the circuit court was the only tribunal that could adjudicate the questions involved, and an attempt by the judge in vacation to do so was void. Constitution, sec. 1, art. 6; State ex rel. v. Woodson, 161 Mo. 444. (c) If the judge could not adjudicate the question as to whether the property was being taken for a public purpose, then he could not summon defendant to appear and continue him into a term of court. A person must have his day in court, and the only way to secure jurisdiction is to summon him to appear in a court or by his voluntary appearance in court. State ex rel. v. Woodson, supra. (d) It would be absurd to say that a judge could summon a defendant to appear before him in vacation when he had no authority whatever to adjudicate defendant's rights, and yet that such judge could continue the case to a time and place where there was authority to adjudicate defendant's rights, and all without the consent of the defendant. Can there be a law in existence that would impose such a burden? If so, then a person who is notified to appear before a judge for the purpose of showing cause why a temporary injunction should not be issued is in court and is bound by all proceedings thereafter; such a ruling would be a great surprise to the bar and would be in violation of the constitutional provision against depriving a person of his property without due process of law. Constitution, sec. 30, art. 2; Holliday v. Cooper, 3 Mo. 286. (e) We have here a final judgment of a court against defendant although defendant has at no time received notice that a court would attempt to adjudicate his rights. The action of the court was a final judgment and conclusive on all who were before the court, but if this defendant is bound, then the belief that our rights are protected is an idle dream. Eyssell v. City, 168 Mo. 607. (3) Under the statute the "common council shall at its first session thereafter make an appropriation for the payment," etc. "Any failure of the common council to act within the time specified shall operate as a dismissal of the cause." The court found as a fact that the common council did not act in accordance with the provisions of the statute, but did act at its seventh meeting thereafter; can this court permit a positive requirement of a statute to be disregarded in this manner and affirm the judgment squarely in face of such statute? If so, it will be the first case reported in this State where the positive mandate of the Legislature was wholly disregarded. R. S. 1899, sec. 5656.
James M. Wilson and G. L. Zwick for respondent.
(1) Revised Statutes 1899, sections 5648, 5649 and 5650, provide that in proceedings for opening or widening streets, after the passage of an ordinance for that purpose, the city counselor shall, by petition, apply to the circuit court or to the judge in vacation for an order appointing commissioners; and that upon the filing of such petition summons shall be issued giving defendants at least ten days' notice of the time when said petition will be heard, and that the court or judge thereof in vacation, on being satisfied that due notice of the pendency of the petition has been given, shall appoint commissioners. Under the above statutory provisions the defendant was, in contemplation of law, before the judge on the sixth day of September, 1900, by virtue of the service upon him, and the order appointing commissioners might then have been made if all the other defendants had been served, and that being true, the judge could defer making the order to a later date, to which time he could and did continue the hearing. The determination of the question what property was benefited, and the amount of benefits was not a judicial inquiry, but was the exercise of legislative power, and "due process of law" was not essential. The legislative authority may prescribe the manner of the notice, and when the assessment is made in conformity to its requirements it is final, conclusive and binding. St. Louis v. Rankin, 96 Mo. 505; Moberly v. Hogan, 131 Mo. 23; Springfield to use v. Weaver, 137 Mo. 672; 10 Am. and Eng. Ency. Law (2 Ed.), 308. Due process of law does not imply that in every case the parties interested shall have a hearing in court. 10 Am. and Eng. Ency. Law (2 Ed.), 300; McMillan v. Anderson, 95 U.S. 37. (2) The Common Council did, at its first meeting, after the filing with them of the report of the city clerk, introduce an ordinance appropriating the money awarded by the commissioners to persons whose property was taken, and said ordinance was properly referred to a committee for a report thereon, and there was no failure of the Common Council, within the meaning of the law, which operated as a dismissal of the proceedings. The law required that all ordinances be read at three stated meetings and be reported upon by a committee before its final passage. Laws 1901, p. 57.
This is a consolidation of the case of City of St. Joseph v. Martin Truckenmiller, with the case of Martin Truckenmiller v. City of St. Joseph, both of which cases were pending in the circuit court of Buchanan county. The first-named and above-styled case is a suit to enforce a special taxbill for $ 50 against a certain lot belonging to the defendant, for special benefits arising to it by the opening and extension of Thirteenth street, in the city of St. Joseph. The case of Martin Truckenmiller v. City of St. Joseph is a bill in equity to declare said taxbill void and to enjoin its collection, and to cancel the same as a cloud upon the plaintiff's title to the land. The case is predicated upon the ground that the summons was issued and made returnable by the judge in vacation, and not by the court in term time, and because sections 5648 to 5657, Revised Statutes 1899, under which the condemnation case was conducted, are violative of section 1, article 6, and section 30, article 2, of the Constitution of this State. It was agreed that the petition in the equity case should be regarded as the answer to the suit at law. In consequence of the premises, a constitutional question was raised by the defendant in the trial court, and that question having been decided against the defendant, the case is properly before this court, on the defendant's appeal. So far as they are essential to the determination of the case, the facts will be stated in the course of the opinion.
The city of St. Joseph was, at the time of these proceedings, a city of the second class, under article 3, chapter 91, Revised Statutes 1899. The Common Council properly and regularly adopted an ordinance for the opening and extension of Thirteenth street; which ordinance was in all respects in compliance with the law governing such proceedings. Thereupon, the city instituted a condemnation proceeding in the circuit court to carry into effect the provisions of the ordinance. Upon the filing of the petition, the judge of the circuit court, in vacation, ordered a summons to issue against the defendants, the defendant Truckenmiller among them, returnable more than ten days thereafter, and in vacation instead of to the beginning of a term. The defendant Truckenmiller was personally served with a copy of such summons. Upon the return day it appeared that all of the defendants had not been served, so an order of publication was granted as to such unserved defendants, and the cause was continued for further proceedings until the first day of the next regular term of the...
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