City of St. Louis v. Bell Place Realty Co.

• Decision Date: 26 May 1914
• Docket Number: No. 16437.,16437.
• Parties: CITY OF ST. LOUIS v. BELL PLACE REALTY CO. et al.
• Court: Missouri Supreme Court

168 S.W. 721

259 Mo. 126

CITY OF ST. LOUIS v. BELL PLACE REALTY CO. et al.

No. 16437.

Supreme Court of Missouri, Division No. 2.

May 26, 1914.

Rehearing and Motion to Transfer to Court in Banc Denied June 23, 1914.

1. HIGHWAYS (§ 18)—"PUBLIC HIGHWAYS."

The term "public highways" includes in its most general sense all kinds of thoroughfares in which the public have a right of way or passage, but, when used in its proper sense, it includes all public traveled ways, whether in county or town, and where ground is graded and prepared for travel for all travelers of a certain class, the tract becomes a highway, though the word "highway" sometimes embraces a private road only.

2. MUNICIPAL CORPORATIONS (§ 429) — ACQUISITION OF LANDS FOR STREETS OR BOULEVARDS.

Under St. Louis city charter, authorizing the establishment of boulevards at the cost of abutting property and the establishment of streets at the cost of lands especially benefited thereby, though not fronting thereon, an ordinance which directs the establishment of a boulevard and a petition therefor which repeats the word "boulevard" several times without using the word "street" provide for a boulevard, and not for a street, and only abutting property can be assessed therefor.

3. MUNICIPAL CORPORATIONS (§ 408)—ASSESSMENTS —SPECIAL TAXES.

Where a statute purporting to levy or authorizing the levy of taxes is of doubtful meaning, the doubt must be resolved in favor of the taxpayer, and this rule applies to ordinances authorizing the assessment of special taxes on benefits for public improvements.

4. MUNICIPAL CORPORATIONS (§ 455)—PUBLIC IMPROVEMENTS—ASSESSMENTS—NOTICE.

A statute authorizing substituted service in proceedings to award damages and assessments of benefits for the establishment of a street must be strictly construed, and the notice prescribed therein must be given, and a notice as good as or equivalent to the one required by the statute is not sufficient.

5. CONSTITUTIONAL LAW (§ 290)—DUE PROCESS OF LAW—STREETS — ESTABLISHMENT — ASSESSMENTS.

Under St. Louis city charter, authorizing proceedings in the circuit court to condemn land for public streets, and providing for the appointment of commissioners to award damages, and an ordinance requiring five days' notice by publication of the time and place where the commissioners will assess benefits, the circuit court has jurisdiction to render final judgment for benefits assessed in proceedings to acquire land for a street; such notice being sufficient to make the proceeding due process of law.

6. MUNICIPAL CORPORATIONS (§ 455) — STREETS — ESTABLISHMENT — NOTICE — ASSESSMENT OF BENEFITS.

Though St. Louis city charter makes no provision for notice to owners of land included in a benefit district for the assessment of benefits to pay the costs for condemning land for a street, notice must be given them as required by the Constitution.

7. MUNICIPAL CORPORATIONS (§ 586)—ESTABLISHMENT OF STREETS — ASSESSMENT OF BENEFITS—JUDGMENT.

The St. Louis city charter, providing that the circuit court, on the filing of the report of commissioners to assess benefits and the hearing of exceptions thereto, may render final judgment for such benefits, grants the specific power to enter final judgment for benefits, and gives the implied power to issue execution therefor.

8. MUNICIPAL CORPORATIONS (§ 586)—ESTABLISHMENT OF STREETS—ASSESSMENT OF BENEFITS—JUDGMENT.

Under St. Louis city charter, providing that the judgment for benefits for the establishment of a street may be collected as provided by ordinance, and an ordinance declaring that benefits shall be paid within a specified time, and, if not so paid, they shall be collected by execution or suit on the final judgment confirming the assessment, final judgment may be rendered for benefits, and execution may issue thereon.

9. MUNICIPAL CORPORATIONS (§ 325)—ESTABLISHMENT OF STREETS—PROCEEDINGS.

A judgment dismissing a proceeding by the city of St. Louis to establish a boulevard does not prevent proceedings by the city to establish a street at any time, notwithstanding the charter providing that when the city shall discontinue proceedings to open a street the same shall not again be instituted for ten years.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Proceedings by the City of St. Louis to condemn lands for a street and to assess benefits against other lands to cover the damages from condemnation. From a judgment assessing benefits, the Bell Place Realty Company and others appeal. Reversed, without prejudice.

This is an action to condemn lands for a street in the city of St. Louis, and to assess benefits against other lands to cover the damages arising from such condemnation.

The appellants own lands against which benefits have been assessed, but their lands do not front or border upon the proposed street. Appellants did not enter their appearance in the action wherein alleged benefits were assessed against their lands until final judgment had been entered against them. Within four days after the entry of judgment they filed a motion to arrest said judgment, because: (1) The ordinance of the city of St. Louis upon which this suit is based directs the establishment of a boulevard, whereas the suit is for the establishment of a street; (2) five days' notice was not given to the appellants of the time and place fixed by the commissioners for hearing landowners and assessing benefits against their property; (3) the notice to landowners of the time and place set for assessing benefits was issued by the acting and associate city counselor, instead of the city counselor, as required by the ordinance of said city; (4) the court was without jurisdiction to enter the judgment assessing benefits.

For an understanding of the law upon which this cause must be decided, it will be necessary to examine some of the provisions of the charter of St. Louis. It is conceded by all of the parties that said charter authorizes the municipal assembly, by ordinance, to cause to be established both boulevards and streets; also that the cost of establishing boulevards must be taxed against the lands fronting or bordering on said boulevard, while a substantial portion of the cost of establishing streets may be assessed against lands which are benefited by the construction of such streets, but which do not front or border thereon. The ordinance upon which this proceeding is based designates the highway sought to be established as a "boulevard." The body of the petition follows the language of the ordinance, and does not use the word "street," or indicate that a street is to be established, except by the prayer thereof, wherein it demands the appointment of commissioners to ascertain what lands will be benefited by the proposed highway, and to assess benefits against such lands.

As the cause turns upon the sufficiency of the petition and the ordinance recited therein, we will insert the same here. Omitting style of case, the petition reads as follows:

"That on or about the 21st day of December, 1908, an ordinance of the city of St. Louis, state of Missouri, numbered twenty-four thousand and eighty-five (24085), went into force and effect, having been duly enacted by the municipal assembly of said city, upon the recommendation of the board of public improvements of said city, in writing, and approved by the mayor of said city, on December 11, 1908, the purpose whereof is to establish and open Kingsbury boulevard from De Baliviere avenue eastwardly for a distance of about 630 feet, as a public highway 100 feet wide, the lines thereof to run as follows: From De Baliviere avenue eastwardly to the prolongation southward of the west line of property now or formerly owned by Henry H. Wellman, in United States survey No. 378, a distance of about 630 feet; the center line to run 50 feet north of and parallel to the north line of property now or formerly owned by Samuel, Margaret P., and Sarah E. Simmons, in city block thirty-eight hundred and seventy-five (3875), recorded in Deed Book 1612, p. 1, all in the city of St. Louis, state of Missouri, pursuant to the provisions of ordinance of the city of St. Louis, state of Missouri, numbered 24085, which ordinance is in words and figures as follows:

"`An ordinance to establish and open Kingsbury boulevard from De Baliviere avenue eastwardly for a distance of about six hundred and thirty feet.

"`Be it ordained by the municipal assembly of the city of St. Louis as follows:

"`Section One. Kingsbury boulevard from De Baliviere avenue eastwardly to the prolongation southward of the west line of property now or formerly owned by Henry H. Wellman, in United States survey number three hundred and seventy-eight, a distance of about six hundred and thirty feet, is hereby established as a public highway one hundred feet wide, the center line thereof to run fifty feet north of and parallel to the north line of property now or formerly owned by Samuel, Margaret P. and Sarah E. Simmons in city block number thirty-eight hundred and seventy-five (recorded in Deed Book sixteen hundred and twelve, page one).

"`Section Two. The city counselor is hereby authorized and instructed to cause said Kingsbury boulevard to be opened according to law.

"`Approved Dec. 11, 1908.'

"That for the purpose of establishing and opening Kingsbury boulevard as a public highway, as thus ordained, it is necessary to appropriate, condemn, and take or damage private property for public use as such public highway. That the defendants named in the caption to this petition are the owners respectively of the several lots or parcels of land included in the property hereinbefore described and sought to be condemned, appropriated, taken, or damaged for said boulevard purposes, or claim some interest therein."

Then follows a prayer that three commissioners be appointed to assess damages in favor of persons whose lands will be taken or injured by the aforesaid ...