Wabash Ry. Co. v. City of St. Louis

• Citation: 64 F.2d 921
• Decision Date: 23 May 1933
• Docket Number: No. 9296.,9296.
• Parties: WABASH RY. CO. v. CITY OF ST. LOUIS.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

64 F.2d 921 (1933)

WABASH RY. CO. v. CITY OF ST. LOUIS.

No. 9296.

Circuit Court of Appeals, Eighth Circuit.

April 1, 1933.

Rehearing Denied May 23, 1933.

Homer Hall, of St. Louis, Mo. (N. S. Brown and J. H. Miller, both of St. Louis, Mo., on the brief), for appellant.

J. B. Steiner, of St. Louis, Mo. (Julius T. Muench and G. Wm. Senn, both of St. Louis, Mo., on the brief), for appellee.

Before STONE and KENYON, Circuit Judges, and OTIS, District Judge.

OTIS, District Judge.

On April 18, 1922, there was approved by the mayor of the city of St. Louis, Mo., an ordinance (referred to in the record as Ordinance No. 31656) enacted by the board of aldermen, providing for the establishment, opening, and widening of a highway in that city, and in that connection directing the condemnation of private property. The city counselor was instructed in the ordinance to institute appropriate proceedings in accordance with the provisions of the city charter.

The charter provides (section 1, article XXI, of the charter)¹ that upon the passage of such an ordinance the city counselor shall apply to the state circuit court by petition for the appointment of commissioners to assess damages and benefits. In this case he did so apply to the circuit court (the petition was filed November 16, 1922) and that court on October 29, 1923, appointed commissioners and ordered that they proceed to assess damages and benefits. The commissioners, as was their duty (section 5, article XXI, of the charter)², fixed the benefit or taxing district, and, after extended hearings and investigation, on November 20, 1928, filed their report in which, inter alia, they assessed benefits in specified amounts against eighty-two parcels of real estate lying within the benefit district previously established and which belonged to the Wabash Railway Company, the appellant here.

Section 7, article XXI, of the charter provides that —

Section 7. Within twenty days after the filing of the commissioners' report, exceptions in writing thereto may be filed by any party interested, and upon such exceptions the court shall review the report and may order, on cause shown, a new assessment by other commissioners, or make such other orders thereon as justice may require. The court shall hear and dispose of such exceptions with all reasonable speed; and may itself assess benefits anew.

The appellant timely filed in the circuit court its exceptions to the report of the commissioners, petitioned for a removal of the cause to the United States District Court, and the cause was removed. In the District Court trial by jury was waived, the court heard evidence touching the benefits to the various parcels of appellant's property and made findings of fact, in some instances confirming the amounts reported by the commissioners and in others assessing different amounts. Judgment was given the city, appellee here. The appeal is from that judgment.

The jurisdiction of the District Court is conceded by the parties. Commissioners, etc., v. Railway Company, 257 U. S. 547, 42 S. Ct. 250, 66 L. Ed. 364; Id. (8 C. C. A.) 265 F. 524.

The errors assigned may be divided into two groups, those which go to the whole case and those which affect the judgment only as to the benefits assessed against certain parcels of appellant's property. It will be necessary to set out additional facts in connection with our discussion of asserted errors.

The City Counselor Had Authority To Institute This Proceeding.

1. The ordinance to effectuate which a proceeding was instituted in the circuit court was entitled, "An ordinance for the establishment, opening and widening of a highway extending from Third Street westwardly along Walnut Street to Sixth Street and from said Sixth Street westwardly along Market Street to Vandeventer Avenue, providing for the vacation of a certain part of Market Street, and directing the condemnation of private property for the opening and widening of said highway." Sections 1 and 2 of the ordinance fully describe the proposed improvement as set out in the title and designate by specified boundaries what properties along Walnut and Market streets are to be condemned for the improvement. The concluding section of the ordinance, section 3, is as follows:

"The city counselor is hereby instructed to bring action in condemnation pursuant to the charter of the City of St. Louis, for the appropriation of private property, for the establishment, opening and widening of said highway along Walnut Street as hereinbefore ordained in Section 1 of this ordinance, and for the vacation of that part of Market Street as described in Section 2 thereof."

The appellant points to the language of section 3 of the ordinance and argues that it authorized the city counselor only to bring condemnation proceedings for the appropriation of private property for the establishment, opening, and widening of (the contemplated) highway along Walnut street and argues that he was not authorized to institute condemnation proceedings for the establishment, opening, and widening of the highway along Market street. The Market street portion of the proposed highway was much the longest part of the proposed highway.

This contention requires little consideration. When the whole ordinance is read, it is clear that the intention was that condemnation proceedings should be instituted for the whole route. The omission of the words "Market Street" from section 3 is an obvious oversight. Moreover, its omission from that section is of no significance for the reason that the duty of the city counselor is not dependent on any provision in the ordinance. The whole of section 3 might have been omitted without the lessening of his duty or the changing of his function in the premises. It is not the ordinance which imposes on him the duty of instituting proceedings. His duty arises from the provisions of the charter.

Section 1 of article XXI of the charter expressly provides that after the enactment of such an ordinance the city counselor shall institute proceedings in the circuit court to effectuate its purpose. And even if the charter did not charge the counselor specifically with this duty, it would be his duty by virtue of his office as the city's legal representative.

The Reception in Evidence of the Report of the Commissioners Was Not Prejudicial Error.

2. Upon the trial the city was required to assume the burden of proof. As a part of its case it offered in evidence the report of the commissioners setting out their assessments against appellant's properties. Appellant objected. The objection was overruled. The report was received. It is urged this was error. And it was error if this proceeding was de novo.

The Supreme Court of Missouri, construing the charter provisions authorizing this proceeding (and we are bound by that court's construction if definitely settled), has held that the effect of filing exceptions to the report of commissioners "is to vacate the award and afford the exceptors a trial de novo" and that at such a trial "the award of the commissioners * * * is not admissible in evidence." City of St. Louis v. Matilda Schopp et al., 325 Mo. 480, 486, 30 S.W.(2d) 733, 735. But the construction thus given the charter provisions involved cannot be said to be settled with definiteness. In City of St. Louis v. Abeln et al., 170 Mo. 318, 323, 70 S. W. 708, 709, it was ruled that the report of the commissioners not only was competent in evidence but that the trial judge should give it great weight. The Missouri court said there:

"In a review of the commissioners' report on exceptions thereto the report itself is to be considered, and it must stand until it is shown to be wrong either in a point of law or in a matter of fact. This proceeding is statutory, and is peculiar. To some extent it has the character of a trial de novo, but it is not entirely so. It is not, for example, like a trial in the circuit court of a cause brought up by appeal from a justice's court, in which case the statute requires the circuit court to try the cause anew, without regard to anything that occurred at the trial before the justice, or to his findings or judgment. * * * And it is not exactly like a review of the verdict of a jury on a motion for new trial, for there the judge who heard the same evidence that the jury heard weighs the verdict in the light of that evidence. But on a review of the commissioners' report in a condemnation proceeding the court, from the necessity of the case, must hear evidence, because it has not before it the evidence and facts which influenced the commissioners."

If the question is still open, it is difficult to accept the theory that the report is not competent in evidence. The power given by the charter to the court and the duty of the court as there laid down is to "review the report." (See section 7, article XXI, set out supra.) The court may approve the report. It may reject the report and appoint other commissioners who shall make new assessments. The court itself may assess benefits anew. Certainly the court must have the report before it if it is to approve it or reject it or make new findings of benefits in lieu of those reported. Whether the report constitutes prima facie or any proof of the benefits stated, it is certainly competent in evidence as the very subject-matter to be reviewed.

In any event there was no prejudicial error in the admission of the report here. The District Judge in his opinion said 3 F. Supp. 308:

"The report of the commissioners was introduced in evidence, but the court has not attached probative value to the finding of the commissioners, but has treated the case as a proceeding before the court in the first instance. In other words, the hearing has been considered as a trial de novo, which, as we understand it, is in accordance with the view of the Supreme Court of Missouri in such cases."

The appellant contends that notwithstanding what the District Judge...