City of Kirksville v. Ferguson

• Citation: 172 S.W. 4,262 Mo. 661
• Parties: CITY OF KIRKSVILLE, Appellant, v. ANNIE FERGUSON
• Decision Date: 19 December 1914
• Court: Missouri Supreme Court

172 S.W. 4

262 Mo. 661

CITY OF KIRKSVILLE, Appellant, v. ANNIE FERGUSON

Supreme Court of Missouri, First Division

December 19, 1914

Appeal from Adair Circuit Court. -- Hon. Nat M. Shelton, Judge.

Reversed and remanded (with directions).

A Doneghy for appellant.

(1) The court erred in sustaining the motion to quash, for the reason that all of the proceedings are in strict conformity to the requirements of the statute, and the statute is definite and certain. R. S. 1909, secs. 9258 to 9275. (2) The court erred in dismissing the case, for the reason that the proceedings being in strict conformity to the statute it was the duty of the court to proceed by a new inquest of damages. Statutes supra. (3) The court erred in rendering final judgment against the petitioner for the reasons aforesaid. Statutes supra. The grade or elevation at which the walk was to be constructed was not only sufficiently definite but was very accurately designated by reference to the grade stakes then in place, something which the council could see and data from which the commissioners or contractors could know definitely. The definite character of such designation is attested by the fact that the defendant in her exceptions to the report of the committee informs the court from an observation of the grade stakes, exactly what the new elevation of the walk will be. McCoy v. Randall, 222 Mo. 24. Nowhere does the statute applicable to cities of the third class prescribe any particular method of ascertaining or prescribing how the elevation of a sidewalk shall be designated. Nowhere does it say that the walk must be laid to any particular grade or elevation. All of that is left to the wisdom of the local authorities, and it is a well-known fact that few sidewalks are made to conform to the grade established by ordinance for the roadway of the street. Nor does the statute now provide for any plans or specifications. Chap. 84, Art. 4, R. S. 1909, as amended by Laws 1911, pp. 337, 341.

Campbell & Ellison and Higbee & Mills for respondent.

(1) This proceeding is not authorized by law. The second paragraph of Sec. 9254, R. S. 1909, empowers cities by ordinance to construct sidewalks, and to exercise exclusive control over streets and establish grades therefor. The city had no power by ordinance to define a benefit district consisting of two or three lots including defendant's, which should be charged for all the loss or damage that plaintiff's property might sustain by changing the grade of the sidewalk in front of her property. If the damages sustained by defendant came within the provisions of section 9258, that section simply means, as applied to this case, that the damages are to be assessed by three commissioners appointed in the manner provided by section 9262, who should assess her damages. Benefit districts are to be defined where some proposed public improvement like the establishment of a market place, public park, or public square, is contemplated, that will particularly benefit a portion or district of a city. It certainly never was contemplated that when a city should change the grade of a sidewalk in front of a residence property that a benefit district should be defined, and the damages resulting from such change should be assessed upon such district. If the city may define a district containing two or three lots, then it may declare that all the damages shall be paid by the particular lot in front of which the change of grade has been made, and thus make the lot owner pay all the damage. Where the city takes or damages private property for public use, it, and not the lot owner, or two or three lot owners, must first pay the damages. Sec. 21, Art. 2, Constitution; Householder v. Kansas City, 83 Mo. 488; Hickman v. Kansas City, 120 Mo. 123. (2) The ordinance does not establish the proposed change of grade. It is indefinite, uncertain, and void. Appellant admits that the ordinance required a change of the grade; the sidewalk in front of defendant's property to be brought to the grade stakes of the city engineer then in place. It does not refer to any profile or specification on file in the office of the city clerk to which reference could be made. A grade can only be established by ordinance. McCoy v. Randall, 222 Mo. 40. An ordinance like any law must be certain and definite. It may refer to plans and specifications permanently on file where they can be seen at any time. Stakes are usually set for temporary guidance. To make temporary stakes that are liable to be lost or knocked out at any time, or thrown out by frost, and are at best subject to speedy decay, is not to make a permanent monument or record. The maxim "Id certum est quod certum reddi potest" might as well be invoked in favor of an ordinance written in the sand. Becker v. Washington, 94 Mo. 375. The establishment of a grade line is the exercise of a legislative function. 27 Am. & Eng. Ency. Law (2 Ed.), 122d. (3) This proceeding is an ingenious attempt on the part of the city to charge plaintiff's property with a part at least of the damages that she would sustain by reason of the change of the grade, and is violative of section 21, article 2 of the Constitution, that requires that her damages shall be ascertained by a jury or board of commissioners, and same shall be first paid to her before her property or proprietary rights shall be disturbed. McElroy v. Kansas City, 21 F. 259; St. Louis v. Hill, 116 Mo. 527; Sheeley v. Railroad, 94 Mo. 574.

OPINION

WOODSON, P. J.

This suit was begun in the circuit court of Adair county, by the city of Kirksville, a city of the third class, against the defendants, to have the damages and benefits assessed that might accrue to certain property situate therein, on account of the proposed change of the grade of the sidewalk in front thereof.

After hearing the case in full, the circuit court, on motion of the defendants, dismissed the suit, and the city appealed the cause to the Kansas City Court of Appeals. On motion, that court, because of certain constitutional questions involved, transferred the cause to this court for decision.

The petition, omitting formal parts, was as follows:

"To the Honorable Nat. M. Shelton, Judge of said Court, in Vacation:

"The petitioner herein, the city of Kirksville, respectfully shows that on the 3rd day of July, 1911, the mayor and council of said city did duly pass ordinance numbered 1457 providing for the improvement of a part of the sidewalk portion of Jefferson street, a public highway of said city, by grading the sidewalk portion and constructing a concrete sidewalk along the south side of said street on the north front of a tract of land described as all of lot eight in block twenty-six original town, now city, of Kirksville Missouri, except a strip of land twenty-five feet in width off of the east end of said lot eight. And that thereafter on the same date the said mayor and council did duly pass an ordinance numbered 1458 wherein the limits in which private property should be assessed to pay damages by reason of said improvement was defined, a certified copy of both of which said ordinances is filed herewith and hereto annexed. The names of the owners of the several lots, tracts or parcels of land included in said district are as follows, to-wit: John H. Janisch owns lots one and two in block twelve, Railroad Addition to said city, and Annie Ferguson owns a tract of...