State v. Grimm

• Decision Date: 21 May 1926
• Docket Number: No 26143.,26143.
• Citation: 284 S.W. 490
• Parties: STATE ex rel. SlEGEL et al. v. GRIMM, Circuit Judge.
• Court: Missouri Supreme Court

284 S.W. 490

STATE ex rel. SlEGEL et al. v. GRIMM, Circuit Judge.

No 26143.

Supreme Court of Missouri, in Banc.

May 21, 1926.

Original prohibition by the State of Missouri, on the relation of A. J. Siegel and others, against J. Hugo Grimm, Judge of the Circuit Court, City of St. Louis. Preliminary rule dissolved, and permanent writ denied.

Leahy, Saunders & Walther, Bryan, Williams & Cave, Cornwell & Hicks and Henry A. Baker, all of St. Louis, for relators.

Oliver Senti, G. Wm. Senn, and Theodore C. Eggers, all of St. Louis, for respondent.

Anderson, Gilbert & Wolfort, of St. Louis,

for St. Louis Real Estate Exchange amici curæ.

ATWOOD, J.

This is an original proceeding in prohibition to stay further action of the circuit court of the city of St. Louis in the condemnation of property along the south line of Olive street in the city of St. Louis extending from Twelfth street westwardly to Channing avenue, a distance of more than 20 blocks, relators contending that the petition in the condemnation proceeding fails to state a cause of action. Respondent consented to the granting of a preliminary rule, waived issuance of the writ, made full return, and pleaded that the petition in the condemnation suit was entirely sufficient under the provisions of the St. Louis charter to fix jurisdiction and sustain a judgment. Relators thereupon filed motion for judgment on the pleadings.

The petition here attacked was filed by the city of St. Louis through its city counselor in the circuit court, city of St. Louis, on November 9, 1920. It contains an allegation that it is filed pursuant to the provisions of Ordinance No. 30751, passed by the board of aldermen upon the recommendation of the board of public service, for the widening of Olive street, and directing the city counselor to institute proceedings to condemn the property needed for such improvement, said ordinance having become effective May 10, 1920, and that the lines of Olive street from Twelfth street to Channing avenue, as the same is to be established, opened, and widened, are to be as follows, to wit:

"The north line, from Twelfth street to Lindell avenue, to be coincident with the north line of Olive street as heretofore laid out; the south line, from Twelfth street to the west line of lot 49, as heretofore laid out in city block No. 1950, said lot line being about 297 feet westwardly from the west line of Compton avenue, to be distant 40 feet southwardly from and parallel to the south line of Olive street as heretofore laid out, said distance being measured perpendicular to the said south line of Olive street as now laid out; from the aforesaid west line of lot 49 in said city block No. 1950, the said south line of Olive street shall run in a straight linear direction to a point distant 100 feet southwardly from the southwest corner of city block No. 1042 as now laid out, said distance being measured perpendicular to the south line of said city block, and said southwest corner of said city block being distant about 250 feet 1 7/8 inches westwardly from the west line of Leonard avenue; from the aforesaid point opposite the southwest corner of said city block No. 1042 to Channing avenue the south line of Olive street shall be the western prolongation of the last-described south line of Olive street as herein proposed to be established."

The petition, among other things, further states:

"That for the purpose of establishing, opening and widening said Olive street, as provided by said Ordinance No. 30751, it is necessary to appropriate, condemn, take, and damage for public use, pursuant to the provisions of said ordinance, the private property, and every estate or interest therein, situate within the limits and embraced within the lines of such highway described; and as the several properties, or parts thereof, so to be appropriated or damaged appear shown on the plat, marked `Exhibit A,' with this petition filed and made a part thereof.

"That the defendants named in the caption of this petition respectively are the owners of or claim an interest in the several properties shown on said `Exhibit A,' to which exhibit reference is made for further descriptions of the proposed public improvement and of said properties to be so appropriated or damaged."

The petition also sets out the interests, as far as known to plaintiff, of persons unknown to plaintiff, who plaintiff believes are interested in or who claim to be interested in certain tracts of land which are described in said petition.

The plat filed with said petition,, made a part thereof and therein designated as "Exhibit A," is drawn to an indicated scale, and shows and identifies the following in lines, colors, letters, words, and figures, and by appropriate reference to city streets and plats: Olive Street with its varying width as previously laid out from Twelfth street to Channing avenue, the strip proposed to be taken along the entire south side of Olive Street in widening said street to a total uniform width of 100 feet from Twelfth street to Channing avenue, each tract of land included or intersected by the strip proposed to be taken, with the dimensions thereof and the dimensions of the parts to be taken and of the parts remaining, the names of the owners of the several tracts, and the names of the streets intersecting said Olive street.

On this petition process was issued and service had. Commissioners were appointed to ascertain the damages and assess the benefits growing out of the proposed widening of Olive street, who thereupon duly qualified and entered upon the discharge of their duties. Pursuant to notice of the time and place of meeting of said commissioners, relators, along with other defendants, appeared in person or by attorney or agent before said commissioners and offered testimony and submitted proof for the consideration of said commissioners in the determination of their claims and demands with respect to values, damages, and benefits affecting their respective properties. Having heard relators and other persons who presented themselves, said commissioners prepared and filed in said circuit court their unanimous report in writing, duly sworn to, setting forth their findings in the premises of values, damages, and benefits, for and affecting the separate lots and private properties, including, among others, the particular findings with respect to the several properties of these relators, who thereupon filed exceptions. The insufficiency of the petition filed by the city of St. Louis to state a cause of action, and the want of jurisdiction in the circuit court over the subject-matter of the suit, because of the failure of the city of St. Louis to file, through its city counselor, within six months after the taking effect of said Ordinance No. 30751, a petition in the form and setting forth the matters specified in the charter of said city of St. Louis, are stated as specific grounds of exception. The city of St. Louis filed a motion to strike from the exceptions of relators the said two grounds of exception on the grounds: First, that they are insufficient in law as ground for exception; and, second, that they are matters of defense and should have been raised by proper motion or answer to plaintiff's petition, and, not having been so raised, were waived and cannot be raised now as an exception to the report of the commissioners. On this motion respondent ruled that the petition stated a cause of action. Hence, this application for writ of prohibition. The city of St. Louis has paid into the hands of the clerk of said circuit court, out of the funds of said city raised by bond issue, a sum in excess of $1,900,000, being the amount of damages, less assessment of benefits, determined by said commissioners and set forth in their said report.

I. One of the charter provisions invoked by relators is that "the city counselor, in the name of the city, shall apply promptly, and in no event later than six months after such ordinance is effective, to the circuit court of the Eighth judicial circuit, or to any judge thereof in vacation, by petition setting forth, etc." The period within which the petition herein contemplated could be filed has long since expired. Consequently, this case turns upon the sufficiency of the petition which was filed in the condemnation suit within time to state a cause of action under the charter. Relators say that it is insufficient.

In proceedings for the condemnation of private property for public use every legislative requirement must be strictly complied with. As said in Leslie v. St. Louis, 47 Mo. 474, with reference to the exercise of the power to take private property for public use:

"Everything is essential which the law has said should be done before this high prerogative right can be carried out and enforced."

So, in testing the sufficiency of a petition in suit for condemnation of private property, we must first know what the law has said should be done, and for this we look to the city charter. In Hughes v. Sellers et al., 34 Ind. 337, it is well said:

"We know of no other standard by which to measure the sufficiency of the petition than that which is to be found in the statute providing what it shall contain."

The legislative provision against which, according to relators, the petition offends is section 1, article XXI, of the Charter of the City of St. Louis, as follows:

"Condemnation of or damage to private property, real or personal, or any easement or use therein for public use shall be effected as herein provided and as may be further provided by ordinance not inconsistent with this charter. Upon the board of aldermen providing by ordinance, recommended by the board of public service: (1) for the appropriation of any private property or any easement or use therein for any public use; or (2) for any public improvement or work which will damage private property, the city counselor, in the name of the city, shall apply promptly,...