City of St. Louis v. Missouri Pacific Railway Company
| Decision Date | 19 May 1919 |
| Citation | 211 S.W. 671,278 Mo. 205 |
| Parties | CITY OF ST. LOUIS v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Leo. S. Rassieur Judge.
Affirmed.
Jas. F Green and H. H. Larimore for appellant.
(1) Section 1, 2, 3, 4, 5, 6, 7 and 8, inclusive, of Article 21 Charter of the City of St. Louis, under which sections these proceedings were had, are unconstitutional and a violation of Section 1, Article 14, of the Amendments to the Constitution of the United States, and proceedings under such sections take the property of the Missouri Pacific Railway Company without due process of law in this, that the fixing of the benefit or taxing district is delegated to the arbitrary finding and judgment of the commissioners without an opportunity on the part of any property owner to be heard as to whether his property should or should not be included in such district, and without any provision for a review of the action by the commissioners in fixing such benefit or taxing district. Houck v. Little River District, 239 U.S. 262; Walston v. Nevin, 128 U.S. 578; Stuart v. Palmer, 74 N.Y. 183; St. Louis Land Co. v. Kansas City, 241 U.S. 430; Spencer v. Merchant, 125 U.S. 345; Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112. (2) If the commissioners, in assessing the benefits, acted within their jurisdiction, their finding in the premises was so arbitrary and constituted such a discrimination against the Missouri Pacific Railway Company as to take its property without due process of law, in violation of Section 1, Article 14, of the Amendments to the Constitution of the United States, and this is a matter that can be reviewed by this court. San Francisco Gas & Elec. Co. v. City, 189 F. 943; Barney v. City of New York, 193 U.S. 430.
Chas. H. Daues, H. A. Hamilton and G. Wm. Senn for respondent.
(1) The notice as published by the commissioners designating the benefit district and the time and place of meeting is "due process of law" and is notice to the appellant upon the proceeds and determinations of the commissioners. Buddecke v. Ziegenheim, 122 Mo. 243; St. Louis v. Realty Company, 259 Mo. 140. (2) The proceedings before these commissioners involved, and the parties invited or notified to appear are entitled to be heard upon matters, among others, relative to the benefit district as advertised by the commissioners. St. Louis v. Brown, 155 Mo. 559. (3) The findings and assessments of these commissioners are presumptively correct and the burden is upon the exceptor to overcome the same by a preponderance of proof. St. Louis v. Brown, 155 Mo. 567; St. Louis v. Calhoun, 222 Mo. 55. (4) The trial court should hesitate to disturb the findings and conclusions contained in the report of commissioners, excepting upon definite and persuasive proof shown by the exceptor; while the attitude of the appellate court, as in law cases, is to defer very largely in matters of conflict in facts to the trial court and its better opportunity to scrutinize the testimony and study the witnesses in delivering their testimony. St. Louis v. Wetzel, 110 Mo. 265; St. Louis v. Brown, 155 Mo. 545; St. Louis v. Calhoun, 222 Mo. 44; St. Louis v. Lawton, 189 Mo. 485.
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, Article 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; Glasse v. King, 195 S.W. 521; Vahldick v. Vahldick, 264 Mo. 529, 175 S.W. 199; Brown v. Chaney, 256 Mo. 219, 165 S.W. 335; Ranck v. Wickwire, 255 Mo. 42, 164 S.W. 460; Buttron v. Bridell, 228 Mo. 635; Redmond v. Railroad, 225 Mo. 721; Collier v. Lead Co., 208 Mo. 246, 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 (Sec. 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. 167.] 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...
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