173 S.W.2d 837
THE CITY OF ST. LOUIS, a Municipal Corporation,
FRANKLIN BANK, a Corporation, et al., Defendant; EIGHTH AND MORGAN GARAGE AND FILLING STATION, a Corporation, et al., Appellants.
Supreme Court of Missouri.
Court en banc, September 7, 1943.
[173 S.W.2d 839]
Appeal from Circuit Court of City of St. Louis. — Hon. James E. McLaughlin, Judge.
James E. Carroll and Igoe, Carroll, Keefe & Coburn for appellants.
(1) The imposition of special assessments is the exercise of legislative power, namely, the power of taxation. Fruin-Bambrick Construction Co. v. St. Louis Shovel Co., 211 Mo. 86, 111 S.W. 86; Mudd v. Wehmeyer, 19 S.W. (2d) 891; McGhee v. Wabash, 249 Mo. 266, 155 S.W. 445. (2) The power of levying special assessments in this case has been delegated by the St. Louis Charter to the circuit court, which acts in a legislative capacity when entering its judgment assessing benefits. Secs. 1, 7 and 8, Art. XXI of the 1914 Charter; Albers v. St. Louis, 268 Mo. 349, 188 S.W. 83; Cornet v. St. Louis County, 319 Mo. 335, 240 S.W. 107, l.c. 111; St. Louis v. Senter Comm. Co., 84 S.W. (2d) 133; Eighth & Morgan Garage and Filling Station v. St. Louis, 119 S.W. (2d) 202; St. Louis v. Dyer, 56 Fed. (2d) 842; Birmingham Drainage Dist. v. Chicago, B. & Q.R. Co., 274 Mo. 140, 202 S.W. 404; State ex inf. v. Colbert, 273 Mo. 211, 201 S.W. 52. (3) Benefits must be based on estimates of the effect of improvements at the time of completion to increase the value of property, and not upon the effect of one or several steps in the process of completion of the improvement. Assessing benefits is the determination of the proportion to be paid by property owners of the cost of making public improvement, of which cost of property taken or damaged is one item. St. Louis v. Senter Comm. Co., 84 S.W. (2d) 133; Cornet v. St. Louis County, 319 Mo. 335, 240 S.W. 107; State ex inf. v. Colbert, 273 Mo. 211, 201 S.W. l.c. 57. (4) Special assessments levied by the circuit court are absolutely void if its record fails to show compliance with all Charter requirements, this because the authority of the court to act as a delegatee of legislative power depends on a showing of compliance with all the conditions set forth in the delegation of power. St. Louis v. Cook, 169 Mo. 587, 70 S.W. 143; Mudd v. Wehmeyer, 19 S.W. (2d) 891; Cornet v. St. Louis County, 319 Mo. 335, 240 S.W. 107; Doemker v. City of Richmond Heights, 18 S.W. (2d) 394; City v. Gleason, 93 Mo. 33. (5) The endorsing of an estimate of the costs on the recommendation of the Board of Public Service to the Board of Aldermen for a public improvement is declared necessary by the Charter, and its absence from said recommendation voids the entire proceedings. It is universally recognized there is nothing the law guards with more care and jealously than it does the right of a man to demand that, before his money or property be taken from him without his consent, every provision of the law made for that purpose shall be strictly followed. City of Kirksville ex rel. v. Coleman, 103 Mo. App. 215, 77 S.W. 120; City of Independence v. Briggs, 58 Mo. App. 241; City of Marshall v. Rainey, 78 Mo. App. 416; Wheeler v. City of Poplar Bluff, 149 Mo. 36, 49 S.W. 1088; City of De Soto v. Showman, 100 Mo. App. 323, 73 S.W. 257. The Board of Aldermen of the City of St. Louis does not have authority to adopt any ordinance for public work or improvements of any kind unless said ordinance has been prepared and recommended by the Board of Public Service with an estimate of the cost endorsed thereon. Sec. 1, Art. XXII of Charter; American Tobacco Co. v. Mo. Pac. Ry. Co., 274 Mo. 374, 157 S.W. 502; Baum v. St. Louis, 123 S.W. (2d) 48; State ex rel. Belt v. St. Louis, 161 Mo. 371, 61 S.W. 658; State v. Butler, 178 Mo. 272, 77 S.W. 560. (6) A thing which is not a benefit cannot be made the basis of an assessment of tax for benefits. 5 McQuillin, Municipal Corps., p. 637, sec. 2192. (7) Where the petition in a condemnation suit sets out in haec verba the ordinance that authorized the condemnation of certain property and this ordinance repealed by number the prior ordinances authorizing condemnation of the same property, then under such circumstances the court will take judicial notice of the condemnation suits instituted under those prior ordinances. Thompson v. Scott, 323 Mo. 790, 19 S.W. (2d) 1063. The court, taking judicial notice of prior suits condemning the same land described in the petition in suit before it, was without jurisdiction to proceed unless it affirmatively appears in the petition that Section 10, Article XXI, of the charter had been complied with. City v. Gleason, 93 Mo. 33, 8 S.W. 348; Sec. 10, Art. XXI, of Charter. (8) Want of jurisdiction may be taken advantage of at any time before or after trial. Jurisdiction cannot be waived in any manner. If the court was without jurisdiction in a cause, its judgment therein is absolutely null and void and may be set aside and for naught held. United Cemeteries Co. v. Strothers, 342 Mo. 1155, 119 S.W. (2d) 762. (9) Municipal corporation possesses only powers expressly granted, those implied from or incidental to powers expressly granted, and those essential to declared objects and purposes of the corporation. Any reasonable doubt concerning whether municipal corporation has given power must be resolved in the negative. State ex rel. City of Hannibal v. Smith, 74 S.W. (2d) 367; State ex rel. Blue Springs v. McWilliams, 74 S.W. (2d) 336; State v. Butler, 178 Mo. 272, 77 S.W. 560; Union Depot R. Co. v. Southern Ry. Co., 105 Mo. 562, 16 S.W. 920. (10) The rule of strictissimi juris is applied in condemnation proceeding, by which property is taken for public use, for the reason such proceeding operates in invitum in derogation of common right. State ex rel. Cranfill v. Smith, 330 Mo. 252, 48 S.W. (2d) 891. In proceedings to condemn private property for public use, unless it affirmatively appear upon the face of the proceedings that every essential prerequisite of the statute (Charter) conferring authority has been complied with, such proceedings will be void. St. Louis v. Glasgow, 254 Mo. 262, 162 S.W. 596; City v. Gleason, 93 Mo. 33, 8 S.W. 348. (11) The Legislature (or Charter), because of limitations in Constitution, is without authority or power to command, direct or authorize a circuit court to use its (court's) judicial functions to give to the decision of a nonjudicial board or commission the character of a judgment. State ex rel. Haughey v. Ryan, 182 Mo. 349, 81 S.W. 435; State ex rel. Ballew v. Woodson, 161 Mo. 444, 61 S.W. 255; State ex rel. Board of Education v. Nast, 209 Mo. 708, 108 S.W. 563; Cornet v. St. Louis County, 319 Mo. 335, 240 S.W. 107; City of Sapulpa v. Paul Land, 223 Pac. 640, 35 A.L.R. 872. (12) If charter delegates to its agent the power to determine how much are or how far the benefits extend, it must provide in its delegation of power a standard, measure or policy from which or by which the agent can determine the amount of the benefit or how far the benefit district will extend. Wichita Railroad & Light Co. v. Pub. Serv. Comm., 260 U.S. 48, 43 S. Ct. 51; Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S. Ct. 241. (13) Assessment in excess of special benefits is void; it is the taking of property without compensation. Norwood v. Baker, 172 U.S. 269; Hutchison v. Storrie, 45 L.R.A. 289, and note.
Joseph F. Holland, James B. Steiner and Oliver T. Johnson for respondent.
(1) We agree with appellants that the assessment of special benefits in street widenings or in paving are referable to the taxing power, but the assessment of special benefits in street widenings is governed by Sections 4 and 5 of Article 21 of the City Charter, and the following cases have no bearing on said assessments: Fruin-Bambrick Construction Co. v. St. Louis Shovel Co., 211 Mo. 524, 111 S.W. 86; Mudd v. Wehmeyer, 19 S.W. (2d) 891; McGhee v. Walsh, 249 Mo. 266, 155 S.W. 445. (2) It is true that Article 21 of the City Charter delegates the levying of special benefits in street widenings to commissioners appointed by the circuit court, and to the circuit court upon exceptions filed thereto under Section 7 thereof, but the powers therein delegated are limited by Sections 4, 5, 7 and 8. These powers are not limited by appellants' cases, to-wit: Cornet v. St. Louis County, 240 S.W. 107; St. Louis v. Brinckwirth, 204 Mo. 280, 102 S.W. 1091; Albers v. St. Louis, 268 Mo. 349, 188 S.W. 83; State ex inf. v. Colbert, 273 Mo. 211, 201 S.W. 52. (3) The assessment of special benefits being referable to the taxing power, said assessment of benefits does not derive its authority directly from the Constitution of the State nor particularly from Section 21 of Article 2 thereof. St. Louis v. Senter Commission Co., 336 Mo. 1209, 84 S.W. (2d) 133; State ex inf. v. Colbert, 273 Mo. 211, 201 S.W. 52. (4) The City of St. Louis, being a city under special charter, and having derived its charter pursuant to and in conformity with Article IX, Sections 16, 17, 20, 21, 23 of the State Constitution, may cause, in proper proceedings, special benefits to be assessed under said Article 21. Mo. Constitution, 1875, Art. IX, Secs. 16, 17, 20, 21, 23; Tremayne v. St. Louis, 320 Mo. 120, 6 S.W. (2d) 935. (5) The sections of Article 21 of the City Charter contain no provision for an estimate of costs as a basis for the assessment of damages or of benefits in a street widening, nor for paving. The assessments of benefits for paving streets is authorized by Article 22 of the City Charter. Said articles do not in any way, authorize the opening of streets and the paving of the same in one proceeding. They are distinct proceedings. The widening of a street is one step, and the paving is another. City Charter, Arts. 21, 22; St. Louis v. Senter Comm. Co., 336 Mo. 1209, 84 S.W. (2d) 133; State ex inf. v. Colbert, 273 Mo. 211, 201 S.W. 52; Cornet v....