84 S.W.2d 133 (Mo. 1935), City of St. Louis v. Senter Com'n Co.

Citation84 S.W.2d 133, 336 Mo. 1209
Opinion JudgePER CURIAM
Party NameCity of St. Louis v. Senter Commission Company et al., Defendants, Ada Realty Company, Appellant. City of St. Louis v. Senter Commission Company et al., Defendants, Fred L. Cornwell, Appellant. City of St. Louis v. Senter Commission Company et al., Defendants, John S. Leahy, Appellant. City of St. Louis v. Senter Commission Company et al., Defendan
AttorneyLeahy, Saunders & Walther for appellants. Charles M. Hay, John T. Hicks and James B. Steiner for respondent.
Judge PanelColes, J., not sitting.
Case DateJune 05, 1935
CourtSupreme Court of Missouri

Page 133

84 S.W.2d 133 (Mo. 1935)

336 Mo. 1209

City of St. Louis

v.

Senter Commission Company et al., Defendants,

Ada Realty Company, Appellant.

City of St. Louis

v.

Senter Commission Company et al., Defendants,

Fred L. Cornwell, Appellant.

City of St. Louis

v.

Senter Commission Company et al., Defendants,

John S. Leahy, Appellant.

City of St. Louis

v.

Senter Commission Company et al., Defendants,

Scott Building & Investment Company, a Corporation, Appellant.

City of St. Louis

v.

Senter Commission Company et al., Defendants,

the Holland Corporation and Holland Building & Investment Company, Corporations, Appellants

Supreme Court of Missouri

June 5, 1935

Appeal from Circuit Court of City of St. Louis; Hon. Robert W. Hall, Judge.

Affirmed.

Leahy, Saunders & Walther for appellants.

(1) Condemnation of property appropriated for public use and assessment of benefits are combined in one suit under the provisions of the Charter of St. Louis. Art. XXI, City Charter. The amount of the assessment of benefits cannot exceed amount of damages awarded for taking and damaging property for the proposed public improvement. Sec. 4, Art. XXI, City Charter; McQuillin's Mun. Corp. (2 Ed.), sec. 2194; McCormack v. Patchin, 53 Mo. 36. Unless the condemnation proceedings are valid, the assessments of benefits to pay awarded damages for property taken are not valid. Anderson v. Pemberton, 89 Mo. 61. Jurisdiction of courts over eminent domain proceedings is wholly statutory and all jurisdictional facts must be pleaded. St. Louis v. Glasgow, 254 Mo. 262; St. Louis v. Gleason, 93 Mo. 33; Leslie v. St. Louis, 47 Mo. 474; Anderson v. St. Louis, 47 Mo. 479; St. Louis v. Cruikshank, 16 Mo.App. 495; Nichols, Em. Dom. (2 Ed.), secs. 425, 402, 398. Every material requirement of the statute, authorizing the condemnation proceedings, must be strictly complied with. Williams v. Kirby, 169 Mo. 622; St. Louis v. Koch, 169 Mo. 587. In condemnation suits, under the charter of St. Louis, the circuit court is not acting as a court of general jurisdiction, but "is quod hoc a court of special and limited jurisdiction," and the essential facts upon which the city predicates its right to exercise the particular jurisdiction must appear upon the face of the record. St. Louis v. Cruikshank, 16 Mo.App. 495. In the matter of assessing benefits, the commissioners, as well as the court, in passing upon exceptions, do not act judicially, but are agents of the city (the taxing authority) in the assessment of taxes. Schwab v. St. Louis, 310 Mo. 116; Albers v. St. Louis, 268 Mo. 349. A municipal corporation can levy no taxes, general or special, upon the inhabitants or their property, unless the power be plainly and unmistakably conferred. Boatmen's Bank v. Sample Realty Co., 202 Mo.App. 57; Chicago v. Law, 144 Ill. 506, 33 N.E. 857. (2) The provisions of Article XXI, Section 5 of the St. Louis Charter, providing that the valuation of damages and benefits shall be taken as of the effective date of the condemnation ordinance, is unconstitutional. Art. II, Sec. 21, Mo. Const.; Nichols, Em. Domain (2 Ed.), secs. 432, 436, 437; C. M. & St. P. Ry. Co. v. Randolph Town-Site Co., 103 Mo. 451; In re Forsythe Blvd., 127 Mo. 421; Miller v. Railroad Co., 162 Mo. 424; St. Louis, Oak Hill Railroad v. Fowler, 142 Mo. 670; Railroad v. Second St. Imp. Co., 256 Mo. 406; Georgia v. Small, 87 Ga. 355, 13 S.E. 515; Oliver v. Railroad Co., 83 Ga. 257; Eaton v. B. C. & M. Co., 51 N.H. 504; 1 Lewis, Em. Dom., p. 60, sec. 67; 2 Lewis, Em. Dom., p. 1224, notes 80, 81, 82. While courts indulge every reasonable intendment in favor of the constitutionality of a law, yet if the statute clearly appears to be in conflict with the organic law, then it is the duty of the court to so declare, notwithstanding its respect for the other branches of the State government. Murnane v. St. Louis, 123 Mo. 490. (a) Under the St. Louis Charter commissioners fix the taxing district for street widenings and must publish in a newspaper for ten days before beginning their assessment a notice of the boundaries of the taxing district and of the time and place at which they will assess such damages and benefits. Sec. 5, Art. XXI, Charter. This provision of the charter is not a sufficient compliance with the legal requirement of notice and opportunity to be heard. The right to notice and hearing must be accorded by the terms of the law pursuant to which the assessment is made. Security Trust Co. v. Lexington, 203 U.S. 323; Coe v. Armour, 237 U.S. 413; McGhee on Due Process of Law, p. 248. Voluntary notice and hearing accorded by commissioners is not sufficient to validate the assessments, for it is necessary, in order to satisfy the constitutional "due process" provisions, that the requirement for notice and hearing be found in the charter. Coe v. Armour, 237 U.S. 413. Jurisdiction of property assessed for benefits rests on this notice. St. Louis v. Rankin, 96 Mo. 497; Buddecke v. Ziegenheim, 122 Mo. 239; St. Louis v. Brinkwirth, 204 Mo. 280.

Charles M. Hay, John T. Hicks and James B. Steiner for respondent.

(1) Condemnation proceedings under the city charter are of a dual character, that of eminent domain and that of taxation, or special benefits. Jurisdiction in proceedings to condemn land under the city charter must be shown in the condemnation petition, but special benefits are assessed under the authority of the charter provisions, in Article XXI, and not by reason of the condemnation petition. The assessment of special benefits is incidental to or, rather, follows the condemnation to acquire land. The sufficiency of the compliance with the jurisdictional requirements in each instance is measured by the statute or the charter itself. City Charter, Art. XXI, Secs. 1, 4, 5; St. Louis v. Buss, 159 Mo. 12, 59 S.W. 970; State ex rel. Tuller v. Seehorn, 246 Mo. 583, 151 S.W. 728; St. Louis v. Glasgow, 254 Mo. 262, 162 S.W. 596; Leslie v. St. Louis, 47 Mo. 474; St. Louis v. Gleason, 93 Mo. 33, 8 S.W. 249; State ex rel. Siegel v. Grimm, 314 Mo. 242, 284 S.W. 493. (2) The date of valuation as fixed by the city charter, Article XXI, Section 5, as of the date the ordinance became effective, is legal, valid and constitutional. None of the appellants' properties were taken in these proceedings, but they were assessed special benefits. The appellants made no showing that their rights were prejudiced by reason of the date of valuation as fixed by the city charter. All statutes fixing a date of valuation have been held valid. City Charter, Art. XXI, Sec. 5; City Charter, Art. IV, Sec. 19; Const. of Mo., Art. II, Sec. 20, 21; Fourteenth Amendment, Const. of United States; St. Louis v. Buss, 159 Mo. 9, 59 S.W. 969; C. M. & St. P. Ry. Co. v. Randolph Town-Site Co., 103 Mo. 461, 15 S.W. 437; In re Forsythe Blvd., 127 Mo. 417, 30 S.W. 188; Miller v. Ry. Co., 162 Mo. 441, 63 S.W. 85; Oak Hill Railroad Co. v. Fowler, 142 Mo. 670; Railroad v. Second St. Imp. Co., 256 Mo. 407, 166 S.W. 296; Parks v. Boston, 15 Pick. 208; 2 Lewis, Eminent Domain, sec. 705, p. 1221; California So. Railroad Co. v. Kimball, 61 Cal. 90; Sec. 1249, Cal. Civil Code; Const. of Cal., Art. I, Sec. 14; Tehama County v. Bryan, 68 Cal. 57; Los Angeles v. Pomeroy, 124 Cal. 597, 57 P. 643; Santa Anna v. Bruner, 132 Cal. 234; Los Angeles v. Gager, 10 Cal.App. 382, 102 P. 17; Cal. Sess. Laws, Acts 1903, p. 376; Oregon Short Line Ry. Co. v. Mitchell, 7 Utah, 505, 27 P. 693; 2 Utah Compiled Laws 1888, sec. 1852; Oregon Short Line Ry. Co. v. Jones, 29 Utah 154, 80 P. 732; Ross v. Palisades Interstate Park, 90 N. J. Law 461, 101 A. 63; Metler v. Ry. Co., 57 N. J. Law 222; Ga. So. & Fla. Railroad Co. v. Small, 87 Ga. 355, 13 S.E. 515; Shreveport Trac. Co. v. Svara, 138 La. 899, 63 So. 396; Const. of Louisiana, Art. 167; South Park Commissioners v. Dunlevy, 91 Ill. 52; Chicago & S. L. Ry. Co. v. Mines, 221 Ill. 448, 77 N.E. 898; Sanitary District v. Chapin, 226 Ill. 503, 80 N.E. 1017; Mowry v. Boston, 173 Mass. 425, 53 N.E. 85; State ex rel. Olcott v. Hawk, 208 P. 712; City Charter, Art. XXI, Sec. IV; Wabash Ry. Co. v. St. Louis, 64 F.2d 928; Kansas City v. Bacon, 157 Mo. 465, 57 S.W. 1048; Kansas City So. Railroad Co. v. Railroad Imp. Dist. No. 3, 266 U.S. 387, 66 L.Ed. 335. (a) City Charter, Article XXI, Section 5, providing for notice of a benefit or taxing district and the publication of the same, complies with the due-process clause of the Constitution of Missouri and the Fourteenth Amendment to the Constitution of the United States. The appellants raised this question for the first time in their briefs, but they are required under the law to raise this question at their first opportunity. This they failed to do. St. Louis v. Brown, 155 Mo. 557, 56 S.W. 298; Wabash Ry. Co. v. St. Louis, 64 F.2d 927; American Tobacco Co. v. St. Louis, 247 Mo. 530, 157 S.W. 533; City Charter, Art. XXI, Sec. 5; Security Trust & Safety Vault Co. v. Lexington, 203 U.S. 333, 51 L.Ed. 204; Kentucky Statutes, sec. 3179; Coe v. Armour Fertilizer Works, 237 U.S. 423, 59 L.Ed. 1031; St. Louis v. Calhoun, 222 Mo. 44, 120 S.W. 1152; Schwab v. St. Louis, 310 Mo. 116, 274 S.W. 1064; Bledsoe v. Stollard, 250 Mo. 163; Huling v. Kaw Valley Imp. Co., 130 U.S. 559; Leigh v. Green, 193 U.S. 79. (3) The inclusion of the vacation of the small triangular area in old Market Street (60 feet wide) west of Spring Avenue in the body of the Ordinance No. 31656, and in the title thereof, does not invalidate said ordinance. The same is true with respect to amending Ordinance No. 35582. The vacation of said triangular area is germane to the widening ordinance, in that it is incidental to the making of Market Street at that point 100 feet wide. The Constitution of the State and the city charter are not violated because said vacation is germane to...

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