City of St. Louis v. Lawton

• Decision Date: 15 June 1905
• Citation: 88 S.W. 80,189 Mo. 474
• Parties: CITY OF ST. LOUIS v. LAWTON et al.; ST. LOUIS FAIR ASSOCIATION, Appellant
• Court: Missouri Supreme Court

88 S.W. 80

189 Mo. 474

CITY OF ST. LOUIS v. LAWTON et al.; ST. LOUIS FAIR ASSOCIATION, Appellant

Supreme Court of Missouri, First Division

June 15, 1905

Appeal from St. Louis City Circuit Court. -- Hon. Selden P. Spencer Judge.

Affirmed.

Sears Lehmann for appellant; Boyle, Priest & Lehmann of counsel.

First. The proceedings of the second commissioners were void because they were without warrant of law. (1) The right of eminent domain is construed with the utmost strictness. Ells v Railroad, 51 Mo. 200; Belcher Sugar Co. v. Grain Co., 82 Mo. 121; State v. Farrelly, 36 Mo.App 282. (2) The statute authorizing it must be strictly adhered to, and every prerequisite to the exercise of jurisdiction observed. Leslie v. St. Louis, 47 Mo. 474; Belcher Sugar Co. v. Grain Co., 82 Mo. 121; St. Louis v. Gleason, 89 Mo. 67; State v. Farrelly, 36 Mo.App. 282; Fore v. Hope, 48 Mo.App. 254. (3) When a corporation which institutes condemnation proceedings withdraws those proceedings after a report of the commissioners has been filed, it cannot institute new proceedings and have new commissioners make a new report. St. Joseph v. Hamilton, 43 Mo. 28; Rogers v. St. Charles, 3 Mo.App. 41; O'Neil v. Freeholders, 41 N.J.L. 161; State v. Halstead, 39 N.J.L. 640; State ex rel. v. Keokuk, 9 Iowa 438. Much less can the city of St. Louis do so, since it is expressly prohibited from so doing in its charter, which is to be strictly construed against it. Art. 6, sec. 9, Scheme and Charter of St. Louis, R.S. 1899, p. 2510. (4) The disapproval by the Municipal Assembly of the report of the commissioners, is a discontinuance of condemnation proceedings. O'Neil v. Freeholders, 41 N.J.L. 161; State v. Halstead, 39 N.J.L. 640. Second. The court violated article 2, section 21, of the Constitution, since it modified the report of the commissioners and itself assessed damages for the appropriation of property under the right of eminent domain. Bridge Co. v. Ring, 58 Mo. 491; Bridge Co. v. Schanbacker, 49 Mo. 555; Waterworks v. Woods, 60 Barb. 137; Matter of Claiborne Street, 4 La. Ann. 7. The case of St. Louis v. Buss, 159 Mo. 9, though in some respects contrary to these cases, expressly affirms them in respect to the question of the court's assessing damages for property taken by right of eminent domain.

Chas. W. Bates and C. R. Skinker for respondent.

(1) The only questions which can be reviewed on appeal are: (a) Those which are raised by the motion for a new trial. Green v. Walker, 99 Mo. 68; Baker v. Railroad, 107 Mo. 230; State v. Reed, 154 Mo. 122; Hamman v. Central, etc., Co., 156 Mo. 232; Kansas City v. Bacon, 157 Mo. 450; Rivers v. Blom, 163 Mo. 442; Redman v. Adams, 165 Mo. 60; Needles v. Ford, 167 Mo. 495; Kansas City v. Mastin, 169 Mo. 80. (b) Or, such as are raised by a motion in arrest. Chapman v. White, 52 Mo. 179; Edwardson v. Garnhart, 56 Mo. 81; Needles v. Ford, 167 Mo. 513; Drainage District v. Campbell, 154 Mo. 161; Riley v. Grand Island Recvrs., 72 Mo.App. 280. (c) Or such as are apparent upon the face of the record proper. Railroad v. Carlisle, 94 Mo. 166; Roberts v. Jones, 148 Mo. 368; State v. Moore, 156 Mo. 135; Land Co. v. Bretz, 125 Mo. 418; Kansas City v. Mastin, 169 Mo. 80; St. Joseph v. Crowther, 142 Mo. 155. (2) The question whether or not the failure of the Municipal Assembly to approve the first report of the commissioners in this cause amounts to a dismissal of the cause, is not raised by the motion for new trial; nor is it raised by a motion in arrest, since no such motion was filed. These exceptions were in the nature of a motion to set aside the judgment of the commissioners, and such a motion is matter of exception, and must be preserved by motion in arrest or motion for new trial. Hart v. Walker, 31 Mo. 26; Seafield v. Bohne, 169 Mo. 537; Loudon v. King, 22 Mo. 336; Drainage District v. Campbell, 154 Mo. 161; Critchfield v. Linville, 140 Mo. 191. This question is not apparent on the face of the record proper, since it was raised by appellant's exceptions to the first report of the commissioners, which are not a part of the record proper. Roberts v. Jones, 148 Mo. 368. The point does not arise on the record proper, but must be called to the attention of the trial court by appropriate motion preserved in the bill of exceptions, else it will not be reviewed on appeal. Critchfield v. Linville, 140 Mo. 191; Windes v. Earp, 150 Mo. 600. (3) The court may on the hearing of exceptions to the commissioner's report, under article 6, section 7 of the charter of respondent in force at the time, modify the assessment of benefits as contradistinguished from the award of damages contained in the report, in such manner as was done in the present case. St. Louis v. Buss, 159 Mo. 9. (4) If the question whether the court was not warranted by law in appointing the second commission is one which need not be raised by the motion for new trial or in arrest, nevertheless such action of the court is justified by the charter of respondent. Art. 6, sec. 7, charter. (5) Appellant is in no position at this time to urge that the assessment of damages should have been made in any other way than was done in this case, to-wit, by the court sitting as a jury, since it made no demand at the time for a jury. Drainage District v. Campbell, 154 Mo. 160. (6) The modification of the second resport being a matter within the discretion of the circuit court, will not be held error since it was made in the exercise of the judicial discretion of that court to make such order in the case as right and justice may require. Art. 6, sec. 7, charter; St. Louis v. Buss, 159 Mo. 9. The order modifying the report of the second commission is not necessarily founded upon any one or more of the grounds urged therefor in exceptions filed to said report by the appellant. It is within the discretion of the circuit court to make such order, upon the hearing of exceptions to the report, as right and justice may require. Art. 6, sec. 7, charter; St. Louis v. Buss, 159 Mo. 9. (7) The constitutional guaranty has, however, been observed, since the damages were assessed by a board of freeholders. Const. art. 2, sec 21; charter, art. 6, secs. 4, 5. (8) No constitutional question arises upon this record. Ash v. Independence, 169 Mo. 77.

VALLIANT, J. Marshall, J., not sitting.

OPINION

VALLIANT, J.

This is a proceeding to open a street, condemning land to be taken for that purpose and assessing benefits. The St. Louis Fair Association is one of the property-owners whose land is taken and is the appellant.

The petition was filed April 24, 1897, commissioners were appointed who filed their report October 24, 1899; time was given to report to the Municipal Assembly, and exceptions to the commissioners' report was filed. It is said in appellant's abstract that on April 30, 1900, during the April term, the city counsellor filed a statement showing that the Municipal Assembly had disapproved of the commissioners' report and that on the same day the court made an order setting aside the report and appointing a new set of commissioners to make a new assessment of damages and benefits. The order contains no finding or recital of facts as its base, but simply sets aside the report and appoints a new commission. At the October term, 1900, the second set of commissioners filed their report, awarding appellant one dollar damages for the land taken, and assessed against appellant amounts aggregating $ 4,261.65 for benefits, and against the city, as for benefit to the general public, $ 100, to which report appellant filed exceptions: first, that the damages assessed in appellant's favor were inadequate; second, the benefit district should have been extended further; third, the benefits assessed against the city were too small; fourth, that the failure of the Municipal Assembly to approve the report of the former commissioners operated as a withdrawal of the proceedings and therefore this report is without warrant of law. The exceptions came on to be heard on evidence at the June term, 1901, when the court sustained the exceptions to the extent of reducing the aggregate assessment of the benefits against the appellant $ 1,200, and adding that sum to the assessment against the city, and after so modifying the report approved it and rendered final judgment of condemnation of appellant's property accordingly. Appellant in due time filed a motion for a new trial, assigning three grounds: first, error in modifying report and entering judgment thereon; second, under the evidence the exceptions should have been sustained and the report set aside; third, admitting illegal evidence for the plaintiff and excluding legal evidence for the exceptor. The motion was overruled and leave to file bill of exceptions on or before October 7th next was granted, which bill was filed in due time. On the trial the evidence for the exceptor tended to show that the amount of damages assessed were inadequate, and contra, for the plaintiff, that the land proposed to be embraced in the street had in fact already been a public road many years.

I. The first and main proposition of appellant is that the disapproval by the Municipal Assembly of the report of the first set of commissioners was in effect the end of the suit; all that the court did thereafter was outside of its jurisdiction.

The learned counsel on both sides of this controversy are agreed on the proposition that no action of the trial court is reviewable on appeal unless it was presented to the trial court in a motion for a new trial, or a motion in arrest, or unless it appears on the face of the record proper. There was no motion in arrest, but appellant insists that the point was preserved in the motion for a new trial, and also that it is on the face of the record...