City of St. Louis v. Senter Commission Co.

• Decision Date: 10 July 1935
• Parties: City of St. Louis v. Senter Commission Company et al., Defendants, Checotah Real Estate & Development Company, Appellant. City of St. Louis v. Senter Commission Company et al., Defendants, Rebecca P. Dusenberry et al., Appellants. City of St. Louis v. Senter Commission Company et al., Defendants, Frederick D. Hampson et al., Appellants. City of St. Louis v. Senter Commission Company et al., Defendants, National Lead Company, a Corporation, Appellant. City of St. Louis v. Senter Commission Company et al., Defendants, National Veneer Package Company, a Corporation, Appellant
• Court: Missouri Supreme Court

85 S.W.2d 21

337 Mo. 238

City of St. Louis v. Senter Commission Company et al., Defendants, Checotah Real Estate & Development Company, Appellant.

City of St. Louis v. Senter Commission Company et al., Defendants, Rebecca P. Dusenberry et al., Appellants.

City of St. Louis v. Senter Commission Company et al., Defendants, Frederick D. Hampson et al., Appellants.

City of St. Louis v. Senter Commission Company et al., Defendants, National Lead Company, a Corporation, Appellant.

City of St. Louis v. Senter Commission Company et al., Defendants, National Veneer Package Company, a Corporation, Appellant

Supreme Court of Missouri

July 10, 1935

Rehearing Denied July 10, 1935.

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

Affirmed.

Gustave A. Stamm and Maurice L. Stewart for appellants.

(1) A condemnation proceeding cannot be prosecuted by a municipal corporation for the purpose of deriving profit out of benefits assessed for the benefit of general revenue or other funds of the city. McCormack v. Patchin, 53 Mo. 36; 5 McQuillin, Municipal Corporations (2 Ed.), sec. 2166, p 575. (2) The total amount of the benefits assessed in condemnation proceedings must be no greater than reasonably necessary to cover the cost of the proposed improvement. McCormack v. Patchin, 53 Mo. 36; McQuillin Municipal Corporations (2 Ed.), sec. 2194; In re Paving Streets in Floyd Park Addition, 196 N.W. 597. (3) The proceeds of the bonds sold under Proposition 2 of Ordinances 32019, 32343 and 32496 constituted trust funds to be applied for the purpose for which the fund was created, and no other. Thompson v. St. Louis, 253 S.W. 972; Meyers v. Kansas City, 18 S.W.2d 900; Stephens v. Bragg City, 27 S.W.2d 1064. (4) Ordinance No. 31656 providing for the widening of Market Street was subject to repeal by implication in whole or in part. Schumacher v. St. Louis, 3 Mo.App. 297; 43 C. J. 564, sec. 892; St. Louis v. Kellman, 235 Mo. 696; St. Joseph v. Farrell, 106 Mo. 444; Barnett v. Bellows, 315 Mo. 1105; Madison v. Ry. Co., 156 Wis. 352, 10 A. L. R. 915. (5) A plaza is a public square and is a totally different use from a street. Webster's New International Dictionary, 1928 Ed.; 48 C. J. 1228; Sachs v. Village of Towanda, 79 Ill.App. 439. (6) Where a public improvement is made without the intention of meeting the cost thereof with local assessments a municipal corporation cannot reimburse itself for the cost thereof by levying special assessments. Weld v. People, 149 Ill. 257, 36 N.E. 1006; City of Alton v. Job, 103 Ill.App. 378; Peck v. Chicago, 22 Ill. 578; Appeal of Harper, 109 Pa. St. 9, 1 A. 791; Alford v. Dallas, 35 S.W. 816; McQuillin, Municipal Corporations (2 Ed.), sec. 2173, note 89. (7) Money derived from special assessments to pay for local improvements is a trust fund to be applied to that purpose and cannot be devoted to other uses. McCormack v. Patchin, 53 Mo. 36; McQuillin, Municipal Corporations (2 Ed.), sec. 2095; Conway v. Chicago, 237 Ill. 128, 86 N.E. 619; Allen v. Davenport, 107 Iowa 90, 77 N.W. 532. (8) The city of St. Louis could not acquire land for the widening of Market Street and then devote the land so acquired to use as a public plaza. Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 82 Mo. 125; Kennard v. Eyermann, 267 Mo. 12; State ex rel. v. Dreyer, 229 Mo. 238; Tukey v. Omaha, 54 Neb. 370, 74 N.W. 613; Church v. Portland, 18 Ore. 83. (9) Condemnation proceedings must be conducted in strict conformity with the act which authorizes them. Unless every essential prerequisite has been complied with the proceeding will be void. St. Louis v. Koch, 169 Mo. 591; City of Tarkio v. Clark, 186 Mo. 299; Leach v. Cargill, 60 Mo. 316; Shaffner v. St. Louis, 31 Mo. 264. (10) When after the lines of a street as originally designated in an ordinance providing for condemnation proceedings have been abandoned or changed by ordinances subsequently enacted, the original proceeding must be abandoned and a new proceeding under new notice must be instituted. Shaffner v. St. Louis, 31 Mo. 264; In re Twenty-third Street Trafficway, 279 Mo. 271. (11) Section 6, Article X of the Missouri Constitution exempting municipal corporations from taxes does not include special assessments for local improvements. Farrar v. St. Louis, 80 Mo. 385; Houck v. Drainage District, 248 Mo. 383, 239 U.S. 254; State ex inf. v. Curtis, 319 Mo. 334; Meier v. St. Louis, 180 Mo. 408. (12) Damages and benefits assessed in condemnation proceedings must be assessed as of the date the improvement ordinance became effective. Charter, City of St. Louis, Art. XXI, Sec. 5.

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

(1) In these appeals there are certain propositions that are fundamental, to-wit: First, that the charter is a fundamental law or constitution of the city of St. Louis; Second, that the powers enumerated in the city charter are not exclusive are not restrictive and the granting of one power shall not impair the power or powers granted in other parts of the charter; Third, that the legislative power of the city shall, subject to the limitations in the charter, be vested in the Board of Aldermen; Fourth, that the city shall have power to sell bonds upon the credit of the city; Fifth, that the issuance and sale of bonds shall not impair the right and power of commissioners to assess special benefits by reason of public improvements named in Article XXI, Section 4 of the charter; Sixth, that the bonds may be issued and sold for public parks, parkways, boulevards, grounds, squares and other public improvements which the city may be authorized or permitted to make; Seventh, that the city is authorized to open and widen streets, as shown by Article XXI, Section 4 of the charter; Eighth, that a condemnation proceeding under the city charter is a dual or double proceeding joining eminent domain and taxation in one suit; Ninth, that in condemnation, bond issue funds are to supplement the city revenues to pay the city's share and to provide the ready cash to pay for and take possession of properties proposed to be taken and condemned. Tenth, that the appellants are not primarily concerned as to the manner and means by which the city raises the money to pay the damages. When the city takes judgment and pays the damages the benefit assessments come into being as a result of the city taking title. It therefore follows that Propositions 1 and 2 of the bond issue Ordinance No. 32019, enacted after the Market Street widening was instituted pursuant to Ordinance No. 31656, and thereafter amended by Ordinance No. 35582, were to pay the city's share of the cost and to provide the ready cash to take possession of the property taken and condemned, and that said bond issue propositions do not and cannot impair or restrict the right of commissioners to assess benefits in said proceedings. The fact that the Board of Aldermen by Ordinance No. 38340 designated the said two blocks as Aloe Plaza did not change the character of said blocks as a street. St. Louis v. Kellman, 235 Mo. 693; Kemp v. Monett, 95 Mo.App. 452, 69 S.W. 31; Paddock v. Brisbois, 276 P. 325; Const. of Mo. 1875, Art. IX; City Charter, Art. I, Secs. 1, 2; City Charter, Art. XVII, Sec. 1; City Charter, Art. IV, Sec. 1; City Charter, Art. I, Sec. 1; City Charter, Art. XXI, Secs. 1-8; St. Louis v. Buss, 159 Mo. 9, 59 S.W. 970; State ex rel. Tuller v. Seehorn, 246 Mo. 579, 151 S.W. 727; St. Louis v. Dyer, 56 F.2d 842; St. Louis v. Calhoun, 222 Mo. 52, 120 S.W. 1152; St. Louis v. Christian Bros. College, 257 Mo. 541, 165 S.W. 1057; Thompson v. St. Louis, 253 S.W. 969; Thompson v. Scott, 19 S.W.2d 1063; Sharp v. Spier, 4 Hill, 82; In re Beechwood Ave., 194 Pa. St. 91, 45 A. 129; Burns v. Duluth, 96 Minn. 105, 104 N.W. 714; Hubbard v. Sadler, 104 N.Y. 227, 10 N.E. 426; Loesnitz v. Swellinger, 127 Ind. 430, 25 N.E. 1037; State v. City Council of Elizabeth, 31 N. J. L. 550; Tumwater v. Pix, 18 Wash. 156; Patterson v. Baumer, 43 Iowa 481; City of Elkhart v. Wickwire, 121 Ind. 341, 22 N.E. 342; Jelliff v. Newark, 48 N. J. L. 101, 2 A. 627; In re Twenty-third Street Trafficway, 279 Mo. 249, 214 S.W. 114. (2) The establishment of the width of a street and the enlargement of portions thereof for street and highway purposes in condemnation proceedings is a matter of legislative discretion, which is not subject to judicial inquiry. Mo. Const. 1875, Art. IX; Kansas City v. Liebi, 298 Mo. 598, 252 S.W. 410; So. Ill. & Mo. Bridge Co. v. Stone, 174 Mo. 22, 73 S.W. 453, 63 L. R. A. 300; County Court v. Griswold, 58 Mo. 193; Aldridge v. Spears, 101 Mo. 405, 14 S.W. 119; Doe Run Lead Co. v. Maynard, 283 Mo. 674, 223 S.W. 607; State ex rel. Dietrich v. Dawes, 315 Mo. 707, 287 S.W. 432; State v. Schenkel, 129 Mo.App. 234, 108 S.W. 635; Joplin Consolidated Mining Co. v. Joplin, 124 Mo. 138; 2 Nichols on Eminent Domain (2 Ed.), p. 899, sec. 329, pp. 13, 14, sec. 488; Vol. I, p. 63, sec. 19. (3) The condemnation petition was amended pursuant to amending Ordinance No. 35582 by stipulations between the city and the owners of the four parcels affected by said amending ordinance, in three of which parcels the amount of taking was reduced, and in the other an additional 8-inch strip of land was taken. Such an amendment was not prejudicial to the rights of the appellants because the damages in the whole proceeding were reduced pursuant to the amending ordinance, which would tend to reduce the benefits. St. Louis, K. & N. W. Ry. Co. v. Clark, 121 Mo. 189, 25 S.W. 192; St. Louis, K. & N. W. Ry. Co. v. Knapp-Stout & Co., 160 Mo. 396, 61 S.W. 300; Stockyards Case, 120 Mo. 541; Kansas City & Northern Connecting Railroad Co. v. Baker, 183 Mo. 312, 82 S.W. 85; Kansas City & Northern Connecting Railroad Co. v. Baker, 196 Mo....