City of St. Joseph v. Hamilton

| Mo. | Feb 15, 1869

Wagner, Judge,

delivered the opinion of the court.

This was a proceeding commenced by and before the mayor of the city of St. Joseph, under the charter of said city, for the purpose of widening Fourth street, and to condemn a strip off from the east end of the lot of appellants. The proceedings were instituted under authority given by the charter, and in pursuance of ordinances passed by the city council. The second section of the sixth article of the charter provides that the mayor and councilmen shall have power to extend, open, or widen streets; and that, when private property is required or taken therefor, the mayor shall in all cases cause a jury to be summoned and sworn to assess the damages. The third section declares that when any assessment of damages shall have been made for opening, extending, or widening any street, either the city or any other person or persons feeling themselves aggrieved thereby may take an appeal from such assessment to the Circuit Court, in such manner and on such terms as appeals are granted from justices of the peace. By section 4 it is provided that when any such appeal shall be taken to the Circuit Court, the same shall be tried as other issues in said court; and in case damages be assessed to any person by a jury or court, the same shall be paid out of the city treasury before the property of such person shall be taken for public use. By an ordinance approved August 7, 1866, regulating proceedings when private property is taken for public use, the following elapse is enacted: “On the day mentioned the jury shall be sworn, and, after examining the ground, shall make an award in writing, which, if an appeal be not taken therefrom in accordance with the third section of the sixth article of the city charter, shall be reported to the city council, and, if approved by them, -shall be binding on the city and all others interested, and an appropriation shall be made of the sum awarded.”

On the 7th of August, 1866, the city council passed an ordinance requiring the street to be widened which passes appellants’ lot, a portion of which was sought to be condemned. A jury was regularly impaneled on the 11th day of September, 1866. The parties appeared, after which the property was examined and the evidence heard by the jury, and damages were assessed at the sum of three thousand dollars. This verdict and assessment were, under the law, reported by the mayor to the city council, whereupon the council disapproved of and rejected the same, and refused to order a warrant to be issued for the amount of the verdict. From this verdict no appeal was taken by either party.

On the 10th day of October, 1866, the Council ordered the mayor to again proceed and have the property condemned. In compliance with this order the appellants were notified of the proceeding, and another jury was impaneled and sworn on the 16th day of the same month, and assessed the damages at fifteen hundred dollars. When the second jury were sworn, the appellants appeared and filed their motion to dismiss, on the ground that a previous jury had assessed the damages ; that the mayor had no right to order a second jury; and that the first verdict could only be affected by an appeal taken and prosecuted in due form. It does not appear what disposition was made of the motion. But from the second assessment the appellants appealed to the Circuit Court, and in that court they moved that judgment ■might betrendered in their favor for three thousand dollars, the amount awarded by the first jury. This motion the court sustained, and gave judgment accordingly. The cause was then taken to the District Court, where a reversal was had, and it is now brought here for revision.

The first question that will be considered is the action o£ the Circuit Court in entering up judgment for the amount assessed by the first jury. How it was presented in such a shape that the court could take jurisdiction of it I cannot comprehend. It was a distinct proceeding of itself. The time had passed for taking an appeal; and upon the theory of the counsel it was a valid and subsisting judgment, unreversed and unappealed from. It had no connection with the second judgment, but was entirely independent of it. The second proceeding was in the nature of a new suit, commenced on new process, and was not a continuation of the former.

The case of Downing v. Garner, 1 Mo. 751" court="Mo." date_filed="1827-09-15" href="https://app.midpage.ai/document/downing-v-garner-6608819?utm_source=webapp" opinion_id="6608819">1 Mo. 751, does not countenance the practice adopted by the Circuit Court. There the justice improperly set aside a judgment and granted a new trial. Upon appeal the unauthorized second judgment was reversed, and the party was left to take the benefit of the first judgment which he obtained before the justice of the peace, but the judgment was not entered up in the appellate court. In Staat v. The Hudson River R.R. Co., 89 Barb. 298, two independent causes of action were united in the same petition, and it was held that the judgment might be reversed as to one cause and affirmed as to the other. If the second assessment in this case was a nullity, that was good ground for quashing it, but i't would not authorize the court to render a judgment on a matter not before it.

The next question to be considered is, what force is to be attached to the first assessment, and what'rights the appellants acquired under it. The charter, which is the warrant of attorney for the action of the mayor and council, makes no express provision for the calling of a new jury where ¡the assessment of the first jury is unsatisfactory. Such a power' can only be inferred, and is at best of doubtful implication. The only power conferred on either party, if they are not satisfied with the verdict, is an appeal to the Circuit Court, where the case shall be tried as other issues in said court. Where damages are assessed in said court, the city is required to pay the same; but, for the security of the rights of the citizen, his property shall notlbe taken or appropriated till it is paid for. The charter clearly points out the mode of procedure; and there is no just or safe rule of construction by which the party who is the main actor, and who has the extraordinary privilege of instituting the proceedings and summoning the jury, should be allowed, of its own pleasure, not only to reject the finding, but to proceed as often as it pleases till it finally obtains a verdict that suits its views. This is, in effect, allowing the party to set aside a judgment, according to its own caprices, till it finally obtains one that suits its purposes. I can find no warrant for this extraordinary power in the charter. There is no mutuality in the proceeding ; and if such a power is desirable it should be given in plain terms, and not rest for its basis on forced and artificial interpretation.

As before observed, the charter provides that the property shall not be taken till payment is made; and the ordinance enacts that if the council approves of the assessment it shall be binding on the city. In this case the assessment was rejected by the council, though no appeal was taken. Can it be said that the appellants have any vested right in the award or assessment of the first jury, or that there is any means by which they can coerce its payment ?

The counsel for the appellants have cited many cases, and I have looked through them all; but I find, in nearly every one where payment was enforced, there was an acceptance on the part of the public. I have no doubt that the city may dismiss its ¡proceedings at any time before final judgment in the Circuit Court; and then the only liability that would he incurred would he the expenses. So, if on account of excessive damages it should he deemed unwise or. impolitic to proceed, it might abandon the work; but there should be either an abandonment or an appeal prosecuted in pursuance of the manner prescribed by the charter.

If the city elects to abandon the enterprise and not to take the property, there is no divestiture of title from-the owner, and he is not entitled to pay from the public. The case of Wilkinson v. Buchanan County is not in contravention of this doctrine, for that adjudication was made on a statute different from the provisions of this charter. It was based on the Revised Statutes of 1845, which declared that, upon the assessment of damages, the County Court should issue a warrant on the county treasury for the amount of damages and costs. The command was imperative, and there was no direction that the court should defer the warrant till the road was opened, or that the property should not he taken till payment was made. But, on the contrary, as soon as the report of damages was made, the public acquired a right of way, and the owner a vested right, whether the road was opened or not. But here payment is to precede the taking of the property, and until payment is made the parties remain in statu quo. There is considerable diversity in the authorities upon the subject, but it will be found that they are generally predicated on particular statutes ; and I have endeavored to confine this discussion to the real meaning of the charter before the court.

Eor error of the Circuit Court in entering up judgment upon the award of the first jury, which was not legally before it, the judgment of the District Court will he affirmed.

The other judges concur.