State ex rel. Cavender v. City of St. Louis

• Decision Date: 31 March 1873
• Citation: 52 Mo. 574
• Parties: STATE OF MISSOURI, ex rel. JOHN S. CAVENDER, Appellant, v. THE CITY OF ST. LOUIS, et al., Respondents.
• Court: Missouri Supreme Court

52 Mo. 574

STATE OF MISSOURI, ex rel. JOHN S. CAVENDER, Appellant,

v.THE CITY OF ST. LOUIS, et al., Respondents.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

Samuel A. Holmes, for Appellant.

The obvious intention of the law, is to place with the Land Commissioner the selection and impanneling of the jury. (Sess. Acts 1870, p. 478, Art. 8, §§ 1, 2.)

The City Council had no power to deprive the Land Commissioner of the right of selection, and to vest it in the Mayor. Every party interested in the proceeding had the right o have the jury selected under the Land Commissioner's proess, from the whole body of those qualified to serve as jurors. People vs. Brighton, 20 Mich., 57; 8 Penn. St. R., 445; 18 Barb., S. C., 451; 16 Ohio, 181.)

E. P. McCarty, for Respondents.

WAGNER, Judge, delivered the opinion of the court.

This was a proceeding in the Circuit Court by certiorari, to correct certain alleged errors of the Land Commissioner of the City of St. Louis in the matter of opening Lucas Avenue. Some of the points argued by the counsel for the appellant in this court were not raised on record nor brought to the attention of the court below, and will therefore not be noticed here.

The only objections taken to the proceedings before the Land Commissioner, were: 1st. Because so much of the Act of the General Assembly, entitled “An Act to revise the charter of the City of St. Louis, and to extend the limits thereof, approved March 4th, 1870, as provides that the amount of benefits which may be assessed against said city shall not be more than one-tenth of the whole damages awarded, is unconstitutional, against common right, and null and void.

2nd. That the judgment of the said Land Commissioner against the relator and his property, and the execution by him thereupon issued, are without authority of law, and null and void. 3rd. Because the jury impanneled in said proceedings were not selected and impanneled by said Land Commission er according to law, but by the Mayor of said City of St. Louis, in pursuance of said Ordinance No. 7047, and that said ordinance is null and void.

4th. Because the benefits assessed by the jury in said proceedings against the relator and others, were assessed in pursuance of the erroneous and unlawful instructions of the said Land Commissioner to the jury to the effect that the balance over and above what they might assess against the city, they should assess against the owners of the property benefited including the property of the relator, whether they might be benefited to the extent of said balance or not. And that in no event could they find more than ten per cent. of the damages against the City of St. Louis.”

As to the first objection, that the law was unconstitutional, because it provided that not more than ten per cent. of the benefits should be assessed against the city, it is only necessary to remark, that that question was directly presented to this court in the case of Uhrig vs. The City of St. Louis, (44 Mo., 458,) and the law was sustained, and held to be entirely valid.

The...