State ex rel. State Highway Commission of Mo. v. Graeler
| Decision Date | 02 July 1957 |
| Docket Number | No. 29723,29723 |
| Citation | 303 S.W.2d 944 |
| Parties | STATE of Missouri ex rel. STATE HIGHWAY COMMISSION OF MISSOURI (Plaintiff), Appellant, v. Edgar H. W. GRAELER et al. (Defendants), Thomas L. Croft, Henry H. Haffner and Victor S. Sandrock (Commissioners), Respondents. |
| Court | Missouri Court of Appeals |
Robert L. Hyder, Minor C. Livesay, Jefferson City, for appellant.
Thomas L. Croft, St. Louis, for respondents.
DEW, Special Commissioner.
This appeal is from an order in a condemnation case which allowed the respondents, who were the three commissioners appointed by the court, $4,500 each for their services. The appellant filed a Motion To Retax Costs, charging the allowances were excessive, and asking for reconsideration of the same. Upon the overruling of the motion, this appeal ensued.
The proceeding was one to condemn certain lands belonging to defendants, for purposes of a right-of-way to establish, widen and construct a part of Page Avenue in St. Louis County, Missouri. A decree of condemnation as sought by the petition was entered on March 9, 1956, and on the same date the respondents were appointed as commissioners in the case.
On April 27, 1956, the report of the respondents was filed, and on that date the Court allowed them $4,500 each for their services. On May 8, 1956, appellant filed a motion entitled 'Motion To Retax Costs', wherein it was alleged that the commissioners were engaged in the performance of their duties approximately 180 hours, and within a period of 12 to 15 days; that the prevailing rate of recognized real estate appraisers in the vicinity of St. Louis and St. Louis County was $100 per day; that the commissioners viewed a total of 54 parcels and allowed a total of $46,520 in damages; that thus the total allowances were $13,500, or approximately 25 percent of the total damages awarded to the owners. The prayer of the motion was to reconsider and retax the costs insofar as the allowances to the respondents were concerned.
At the outset of the hearing on the motion to retax costs, counsel for appellant stated that no complaint was being made of the quality of the work done by the respondents, but that they should be commended; that there was no question raised as to the Court's discretion in making the allowances, but that it was desired to call to the Court's attention facts which might cause the Court to reconsider the allowance.
Appellant's only witness at the hearing on the motion was S. M. Mauer, an engineer, in charge of the acquisition of rights-of-way for District 6 under the State Highway Commission. He had personally taken part in many condemnation projects for the Highway Commission, including the one here involved. He reviewed numerous cases which he considered comparable to the one in question. He estimated the value of the respondents' services from $400 to $600 each. He said that he personally knew of no case where more than $1,500 each was allowed. It was admitted that the types of property appraised by respondents were generally residential, with a few small commercial establishments, and some street frontage available for residential or light industries; that the tracts considered were 48 or 50 in number; that the total amount of the damages awarded to the owners was approximately $47,000; that appellant had filed exceptions as to only four out of the forty-eight parcels appraised.
It was adduced on cross-examination that the witness told respondents when they were first appointed that it was highly important to get the job done expeditiously so that the Highway Commission could be in a position to make a letting of contracts by a certain date in which certain other reports were involved and were expected to be filed; that the other reports had not yet been filed; that the respondents' report was ready before the witness was ready, because of adding more parties defendants. The witness said he did not know how much time respondents spent on the appraisals other than the five full days he had met with them; that the allowance should not necessarily bear any relationship to the amount of the damages allowed the owners; that the commissioners should be paid on the scale applied to competent appraisers only.
Counsel for respondents was himself one of the appraisers and a respondent. He made a statement at the Court's request as to the number of hours spent in the appraisals. He stated that at least 180 hours were spent, perhaps more, over a period of 22 to 25 days, some of the time being in the evenings, some on Saturdays and Sundays. He siad that the time was compressed into as short a period as possible at the appellant's request, and that the amount originally requested was $6,000 each, which was more nearly adequate for the services rendered. The Court took the motion under advisement and on June 4, 1956, overruled it. On June 8, 1956, appellant filed its Notice of Appeal.
At the very outset, the jurisdiction of this Court to entertain this appeal is challenged. Without expressing any view upon the propriety of the trial court in fixing the amount allowed the respondents under the record, the question of our jurisdiction to review that action must receive our first consideration. It is pointed out by respondents that Section 523.070 RSMo 1949, V.A.M.S., which authorizes the trial court in condemnation cases to charge the costs against the condemnor to and including the filing and copying of the report of the commissioners, also authorizes the Court to 'allow the commissioners a reasonable compensation for their services which shall be taxed as costs in the proceedings'. This was done in the instant case on April 27, 1956, when the report was filed and the order made, allowing each commissioner $4,500. Since the amount of the allowance was a discretionary matter to be determined by the Court upon judicial investigation, and not a matter of ministerial duty of the clerk in entering definite and fixed statutory costs, which he may have done at any time, respondents contend that a motion to retax costs is inapplicable, and that the subject matter of the present motion can be raised only by a motion for new trial filed within ten days after the entry of the order.
The distinction between costs fixed by the law and those judicially determined in amount by the Court was recognized in the early case of...
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