City of St. Louis v. Gruss

• Decision Date: 11 January 1954
• Docket Number: No. 1,No. 43243,43243,1
• Citation: 263 S.W.2d 387
• Parties: CITY OF ST. LOUIS v. GRUSS et al
• Court: Missouri Supreme Court

Page 387

263 S.W.2d 387

CITY OF ST. LOUIS v. GRUSS et al.

No. 43243.

Supreme Court of Missouri, Division No. 1.

Jan. 11, 1954.

Gilbert Weiss, Rodney Weiss, St. Louis, for appellant.

James E. Crowe, James B. Steiner, Oliver T. Johnson, St. Louis, for respondent.

DALTON, Judge.

This is a condemnation proceeding. The issue for determination is the amount of damages resulting to the property of defend Catherine Dennis by reason of the change of grade of Gravois Avenue in the City of St. Louis, as required for the construction of an underpass to carry vehicular traffic under the right of way of the Missouri Pacific Railroad Company.

The plaintiff, City of St. Louis, is a constitutional charter city. Provision has been made in its charter for the condemnation of property for public purposes and it has elected to proceed in the manner therein provided. Article VI, Section 31, Const. of Mo.1945, V.A.M.S.; Section 88.073 RSMo 1949, V.A.M.S. The Commissioners of the Permanent Condemnation Commission of the City of St. Louis, to whom the issue of damages was referred and submitted, ascertained the amount of damages to the property of defendant Dennis to be $1325. No benefits were assessed. See Article XXI, Section 3, City Charter of the City of St. Louis. Defendant filed exceptions to the award of the commissioners and demanded a jury trial. A jury trial was denied and the exceptions were tried before a circuit judge in the manner and form provided by the Charter of the City of St. Louis, Article XXI, Section 7. On such review the court found the amount of the damages awarded to defendant to be reasonable and proper, the exceptions were overruled and the report of the Commissioners was approved and judgment entered. Defendant Dennis has appealed.

Prior to a review of the exceptions before the trial judge, the defendant filed an original proceeding in prohibition in this court to prevent such review. It was relator's contention that she was entitled to a trial of the issue of damages de novo before a jury of twelve persons under Section 523.060 RSMo 1949, V.A.M.S. This court held that, under Section 88.073 RSMo 1949, as revised and re-enacted in 1949, V.A.M.S., subsequent to the 1945 amendment of Section 523.060, 'the Legislature intended * * * to restore to constitutional charter cities the right, if they so elect, to condemn property for public use and to assess damages and benefits in the manner provided 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 City of St. Louis, appellant orally moved the court for a jury trial and assigned as ground therefor that a denial of a jury trial to appellant would be a denial of the equal protection of the laws under the 14th Amendment to the Constitution of the United States. The request was denied. She subsequently assigned error on the same ground in her motion for a new trial.

Appellant now insists that 'the trial court's denial of a jury trial * * * was error in that it constituted an arbitrary and unreasonable discrimination against appellant, and a denial of equal protection of the laws in contravention of the Fourteenth Amendment * * *.'

At the time of said request for a jury trial, no specific provision of the City Charter was mentioned by appellant as denying her the equal protection of the law. No specific provision of the State Constitution, no state statute and no charter provision was pointed out as being unconstitutional by reason of the 14th Amendment and the same is true of the exceptions filed to the award and of the motion for a new trial filed after the award was approved. No specific state statute or provision of the State Constitution and no specific provision of the Charter of the City of St. Louis is now designated or attacked under points and authorities as being unconstitutional under the 14th Amendment to the Constitution of the United States, or as denying appellant the equal protection of the law.

Before discussing appellant's theory as appears from the printed argument in the brief, it is necessary to refer to certain constitutional, statutory and charter provisions.

Article I, Section 26, of the Constitution of Missouri 1945 provides: 'That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be provided by law * * *.'

Section 523.060 RSMo 1949, V.A.M.S. provides: 'Any plaintiff or defendant, individual or corporate, shall have the right of trial by jury of twelve persons, if either party file exceptions to the award of commissioners in any condemnation case.' Amended in 1945, Laws 1945, p. 1072, Sec. 1.

Section 88.073(2) RSMo 1949, V.A.M.S. provides: '* * * 2. Whenever the charter of any constitutional charter city makes provision for the condemnation of property for public purposes and assessment of benefits therefor, such city may elect to proceed with such condemnation or assessment, or both, in the manner provided in sections 88.010 to 88.070 or to proceed in the manner provided in its charter.' RSMo 1989, Sec. 7240, Amended by revision in 1949, H.B. 2036. And see State ex rel. Dennis v. Williams, supra; Kansas City v. Dougherty, 361 Mo. 829, 237 S.W.2d 118.

Article XXI, Section 3, of the Charter of the City of St. Louis entitled, 'Assessment of benefits and damages--Condemnation Commission,' provides for the appointment by the judges of the circuit court of the City of St. Louis of 'a permanent commission composed of three commissioners and three alternates, who shall be freeholders, resident in the city for five years next before the date of their appointment, for the assessment of damages and benefits in all condemnation proceedings.' This section further, in paragraph six, provides: 'Any party entitled to and desiring trial by jury of its rights to compensation shall file in the cause, before the assignment of the commissioners in each case, written demand therefor, including therein a description of its property to be taken or damaged, and failure so to do shall be a waiver of the right of trial by jury. Upon such demand being filed, the court shall award a jury trial and proceed therewith as in trial of civil actions; but before final judgment shall be rendered on the verdict of the jury and before the commissioners shall make their report, the court shall certify the verdict of the jury to the commissioners, and they shall include in their report, with their separate findings, assessments and awards, the damages as assessed by the jury, reciting the fact. * * *.'

Article XXI, Section 7, of the Charter of the City of St. Louis entitled 'Exceptions to report of condemnation commission,' provides: 'Within twenty days from the filing of the commissioners' report, exceptions in writing thereto may be filed by any party interested, and upon such exceptions the court shall review the report, and may order, on cause shown, a new assessment by said commission under additional instructions of the court, or by a commission composed of the three alternate commissioners hereinabove created, or make such other orders thereon as justice may require. The court shall hear and dispose of such exceptions with all reasonable speed, and may itself assess benefits anew.'

In the printed argument in appellant's brief, appellant for the first time attempts to make a direct assault upon Article XXI, Section 3, of the Charter of the City of St. Louis, as being 'unconstitutional, in that it is a denial of equal protection of the laws within the meaning of that clause in the Fourteenth Amendment of the Constitution of the United States.' Appellant contends that said article and section 'denies the equal protection of the law to an individual in condemnation proceedings * * * by denying to an individual a trial by jury for the determination of damages, while at the same time conferring an unqualified right to a jury trial on all corporations.' Appellant says that she complains of this classification as arbitrary and unreasonable and as denying the equal protection of the law, because 'it is a classification of all landowners within the city * * * into two classes: those who have assumed the corporate form and those who have not'; that 'this classification is found in Article XXI, Section 3 of the City Charter, which provides in part: 'Any party entitled to and desiring trial by jury of its right to compensation * * *''; and that 'the pivotal words are 'entitled to', for by Article XI, Section 4, of the Constitution of 1945, only corporations are 'entitled to' jury trials as a matter of right in condemnation proceedings.'

Appellant's argument further proceeds as follows: 'It should first be noted that this classification between corporations and all other landowners is not in the true sense a classification, but in actuality an arbitrary discrimination against all landowners not a corporation. That is, Article XXI, Section 3, of the City Charter does not say that damages in eminent domain proceedings in the case of a corporation shall be determined by jury and damages to all other landowners by a condemnation commission; rather the City Charter accords to corporations, and corporations alone, the right to elect whether their damages shall be determined by a jury or the Commission. In other words, the City Charter cannot in any manner be said to place a burden or restriction on corporations as distinguished from all other landowners, but rather it confers a unique and valuable right upon corporations while denying the same to all others * * *. A state may not, in condemnation procedure, prescribe certain rights and benefits to one and deny the...