State ex rel. Rogers v. Hug

• Citation: 44 Mo. 116
• Parties: STATE ex rel. B. W. ROGERS, Appellant, v. CHARLES HUG et al., Respondents.
• Decision Date: 31 March 1869
• Court: United States State Supreme Court of Missouri

44 Mo. 116

STATE ex rel. B. W. ROGERS, Appellant,

v.CHARLES HUG et al., Respondents.

Supreme Court of Missouri.

March Term, 1869.

Appeal from Sixth District Court

H. C. Lackland, for appellant.

I. An abandonment of the property after condemnation completed does not affect the right of compensation. (Wilkerson v. Buchanan County, 12 Mo. 328; St. Francois County v. Marks, 14 Mo. 539; St. Francois County v. Peers, 14 Mo. 537; Harrington v. Commissioners Berkshire County, 22 Pick. 263; Hallock v. County of Franklin, 2 Metc. 558; Town of Hampton v. Coffin, 4 N. H. 517; 33 Mo. 440.)

II. The acts of a city are known by its ordinances or other formal declarations of record. The charter of St. Charles (Sess. Acts 1849, p. 270) says “the mayor and councilmen shall have power by ordinance to open, alter, abolish [abandon], widen, extend, and establish streets,” etc. But no ordinance or other formal declaration was ever made by the city abandoning this condemned property, and none is pleaded by defendants in their answer. The property is still subject to and bound by the condemnation, and can be neither disposed of nor improved.

III. The payment of the money is not a part of the condemnation proceedings. After the “adequate compensation” is ascertained, the city can take possession whenever it suits its convenience--within a month, a year, or five years, or any other time--by paying the owner the assessed damages. The charter contemplates that the appropriation to public use (that is, the widening of the street) has already been made by ordinance, and the jury and trial are merely for the purpose of ascertaining what compensation (if any) is due to the persons injured by the widening of the street.Lewis & Bruere, for respondents.

I. The judgment in this case was absolutely null and void. The proceeding was not a common-law one for the vindication of a common-law right, but was purely the creature of statute. The statute creating it did not authorize the entering of any judgment, nor was any law in force empowering the court to render any sort of judgment whatever for coercive effect. There was no jurisdiction for such a purpose. (Sess. Acts 1849, p. 272, §§ 3, 4; Fitzhugh v. Custer, 4 Texas, 399; Latham v. Edgerton, 9 Cowen, 227.)

II. The provision requiring payment as a precedent condition is a protection both to the individual and the corporation. It saves the former from all danger of having his property appropriated without actual compensation, and it enables the latter, in the event of an assessment beyond its means or disproportioned to the public benefit to be derived, to abandon the contemplated improvement.

WAGNER, Judge, delivered the opinion of the court.

The relator applied for, and the Circuit Court of St. Charles county granted, a writ of mandamus against the defendant Hug and others, who were mayor and councilmen of the city of St. Charles, to compel them to levy a special tax to pay off a judgment, which he alleged he had obtained against the said city, and upon which execution had been issued and returned unsatisfied. From the action of the Circuit Court in granting the mandamus an appeal was taken to the District Court, where the judgment was reversed, and the case is now brought here.

The proceedings which resulted in the rendition of the supposed judgment grew out of the acts of the city authorities in attempting to condemn certain real estate belonging to the relator. By the act incorporating the city of St. Charles (Sess. Acts, 1849, p. 272), power is given the mayor and councilmen to regulate, pave, and improve the streets, and to extend, open, or widen streets, avenues, lanes, or alleys, upon making the persons injured thereby adequate compensation; and for the purpose of ascertaining the amount of injury or damage, the mayor is authorized to cause a jury to be summoned and sworn to...