City of St. Louis v. Missouri Pac. Ry. Co.

• Decision Date: 28 March 1919
• Citation: 211 S.W. 671,278 Mo. 205
• Parties: CITY OF ST. LOUIS v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

211 S.W. 671

278 Mo. 205

CITY OF ST. LOUIS v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

March 28, 1919.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

Action by the City of St. Louis against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

James F. Green and H. H. Larimore, both of St. Louis, for appellant.

Charles H. Daues, H. A. Hamilton, and G. Wm. Senn, all of St. Louis, for respondent.

WALKER, J.

The nature of the action here sought to be reviewed was the condemnation of certain private property for public use, in the city of St. Louis, including a lot or parcel of land owned by defendant. From a judgment of condemnation, and the assessment of benefits against the defendant, the latter appeals.

The board of aldermen of the city of St. Louis, in conformity with section 1 of article 21 of the charter of that city, provided by ordinance for the appropriation for public use of the property in question. In furtherance of this ordinance, and as required by the section of the charter cited, a petition was filed by the city counselor in the circuit court of said city, containing the essential allegations of a pleading of this character.

No question is involved as to the formal sufficiency of the petition, or that the requirements of the charter were not complied with. While many matters were urged by the defendant in its exceptions to the report of the commissioners authorized to be appointed in a proceeding of this nature, and its motion for a new trial, defendant's contentions in its brief and in the oral argument, are limited to a narrow compass: First, as to the invalidity of sections 1 to 8, inclusive, of article 21 of the charter of the city of St. Louis, as in violation of section. 1, art. 14, of the Amendments to the Constitution of the United States, concerning due process of law; and, second, that the commissioners, in assessing the benefits, unjustly discriminated against the defendant, and thus further violated the section of the Constitution cited.

I. There is no formal assignment of errors. Construing defendant's "Points and Authorities" as such, as we are authorized to do, our review is limited as therein indicated. Crecelius v. Railroad, 274 Mo. 671, 205 S. W. loc. cit. 186; Glasse v. King, 105 S. W. (App.) 521; Valdick v. Valdick, 264 Mo. loc. cit. 532, 175 S. W. 199; Brown v. Cheney, 256 Mo. loc. cit. 225, 165 S. W. 335; Ranch v. Wickwire, 255 Mo. loc. cit. 56, 164 S. W. 460; Buttron v. Bridell, 228 Mo. loc. cit. 635, 129 S. W. 12; Redmond Railroad, 225 Mo. loc. cit. 741, 126 S. W. 159; Collier v. Katherine Lead Co., 208 Mo. loc. cit. 258, 106 S. W. 971.

II. Defendant contends that the law, organic and statutory, of the city of St. Louis, prescribes no notice of the fixing of the boundaries of the taxing district which would enable defendant to be heard as to Whether its property should be included therein. The city charter (section 1, art. 21) provides, as preliminary to the condemnation of private property for public use, that an ordinance shall be passed. While it does not specifically prescribe, as an essential to the regularity of the proceeding, that such an ordinance shall define the limits of the taxing district, the very nature of the proceeding renders it necessary to the effective operation of such an ordinance that the property sought to be affected be described therein. As a consequence of a description of the property, the boundaries of the district are necessarily defined. An ordinance lacking this requisite would be a mere nullity, and furnish no basis for further action; containing, as it does, a description of the property and of the boundaries of the district, it renders the owners of same as fully cognizant of the proceedings as if a requirement as to notice had been in set terms incorporated in the municipal law. Of the tenor of all ordinances, the citizens of the municipality must take cognizance. Moore Mfg. Co. v. Railroad, 256 Mo. loc. cit. 179, 165 S. W. 305. In the absence, therefore, of a specified form of notice, that given the defendant met all the requirements of the law.

This conclusion is given added force by the course subsequently required by the charter to be pursued by the city. Upon the passage of the ordinance fixing the taxing district, the city counselor was required, and did, file a petition in the circuit court in the name of the city and against defendant and the other owners of the property to be affected, setting forth the nature and public use for which it was to be appropriated, a description of the same which, as stated, necessarily defined the boundaries of the taxing district, and the interest or estate of the respective owners, and asking the appointment of commissioners to assess benefits and damages. Upon the filing of this petition, a summons was issued and served upon the defendant and others therein named, and in addition a notice of this filing in the circuit court was recorded in the office of the recorder of deeds, in conformity with a requirement of the charter. Thus, in addition to the notice afforded by the passage of the ordinance and personal service of summons upon the institution of the suit by the city counselor, the defendant had the added constructive notice afforded by the filing and recording in the recorder's office of the notice of the petition, which contained, as was required, a description of the property to be affected. The charter requirement as to the recording of the notice was evidently intended as an application of the doctrine of lis pendens. If so, while it is not necessary to thus decide in this case, it would of itself be sufficient to apprise the defendant of every fact set...