City of St. Louis v. Speck

• Decision Date: 30 April 1878
• Citation: 67 Mo. 403
• Parties: CITY OF ST. LOUIS, Appellant, v. SPECK, et al.
• Court: Missouri Supreme Court

67 Mo. 403

CITY OF ST. LOUIS, Appellant,

v.SPECK, et al.

Supreme Court of Missouri.

April Term, 1878.

Appeal from St. Louis Court of Appeals.

Leverett Bell for appellant.

H. B. Wilson for respondent Blank.

NORTON, J.

The controversy in this case grows out of proceedings instituted before the land commissioner of the city of St. Louis, to open Autumn street, from Stoddard avenue to Morton street. There is no dispute, but that all the provisions of law, as well as the ordinances of the city, relating to the subject, had been pursued and complied with. The principal point in contest arises out of the action of the appraisers, who were duly appointed under the law, in charging defendant Blank with sixty-five dollars, that being the amount which, in their estimation, the property of said Blank, no part of which had been taken for said street, would be benefited by the proposed improvement. The plaintiff affirms and defendant denies that the appraisers had the power under the law to do this. The question was determined in the affirmative by the land commissioner, from which Blank, the defendant, appealed to the circuit court, where, upon a trial had, the judgment of the land commissioner was affirmed, from which defendant appealed to the court of appeals, where the judgment of the circuit court was reversed and from which judgment the plaintiff prosecutes her appeal to this court. It is conceded that no part of defendant Blank's property was to be taken for said street. It is also conceded that defendant's property, for which he was charged with benefits, was within the limits of the district, which the appraisers determined would be especially benefited by said improvement. It is denied that the appraisers had any power under the law to charge any owner of property no part of which was to be taken for said streets with benefits, and it is insisted, with much plausibility, that the appraisers could only assess benefits against those owners, a part of whose property was to be taken for the said street

The point here presented involves a construction of the act of 1875, (Acts 1875, p. 320,) under which the proceedings to open said Autumn street were inaugurated. It is provided in the first section of the act, among other things, that whenever the city council shall, by ordinance, provide for establishing any street, &c., the land commissioner shall issue notice setting forth the general nature of the proposed improvement, with the number of the ordinance and the date of its approval, and the names of the owners of any interests, rights or estates in the several lots or parcels of land proposed to be taken, for which damages may be allowed under this act, and a particular description of the lots and parcels whose owners are unknown; that said notice shall state a day and place when and where said commission will appoint appraisers to assess damages. At such time and place all persons named, and others interested, may appear and object to those who may be proposed for appraisers. The second section provides fully for the service of said notice personally and by publication. Section 3 provides that the appraisers, after their appointment and qualification, “thereupon shall proceed without unnecessary delay, to examine the premises sought to be taken for such improvement, and also to view and examine the lands affected by such improvement, and shall appraise the damages to the owners for their property to be taken, without reference to the projected improvement, and determine the limits especially benefited by such improvement and ascertain the boundaries of the different parcels of real estate embraced in said limits, and the names of the owners thereof so far as known, and thereupon assess to the city the amount of benefits to it from said improvements, and next, charge to each of the owners of such rights, interests and estates in the said parcels of ground respectively, as damages are allowed for under this act, the amount of benefit thereto from said improvement, stating the name of the owner when known, and when not known, stating the same.” It also provides that the appraisers shall file a full report of all their acts and doings with the land commissioner at a time by him designated; that when such report is filed, the said commissioner shall appoint a time and place, when, within ten days thereafter, exceptions to the assessment of damages and benefits or to any prior irregularities or defects in the proceedings may be filed, and the land commissioner shall notify owners of real estate, charged with benefits, who have not appeared in the proceeding, of said time and place, in the same way and manner as provided for parties whose property is taken for the improvement. Subsequently, said exceptions to be heard on evidence, and determined by land commissioners. Sec. 4. If appraisers shall report that benefits to property owners, and city at large, are insufficient to meet damages assessed, the land commissioner shall dismiss the proceedings. Benefits shall be a lien on the property charged. In every case wherein exceptions are filed, appeal may be taken; the reversal shall affect only the case embraced in the appeal; and no party shall be allowed to object, or except to the proceedings on account of any defect or irregularity in the case of any other party. We have referred to so much of the act of 1875 as we deem material in determining the question whether it was intended by the General Assembly to confer on the appraisers the power to assess benefits to any other lands than those a part of which was to be taken for the improvement, and whether such intention is sufficiently expressed.

1. STREET OPENINGS: assessment of benefits: the taxing power.

We are relieved from a consideration of the constitutionality of the enactment now before us, as ever since the case of Garret v. The City of St. Louis, reported in 25 Mo. 505, was decided, it has been the established law of this State that the General Assembly, in the exercise of the right of eminent domain, might authorize property to be taken for such local improvements as opening a street, &c., and that the assessment of benefits against the owners of property not taken for such improvement, but especially benefited thereby, is a legitimate exercise of the taxing power. This case was followed in the case of Uhrig v. St. Louis, 44 Mo. 558, and State ex rel. v. St. Louis et al., 62 Mo. 244.

2. ______: ______: district to be assessed.

It is however argued that the act in question does not delegate to the appraisers...