City of St. Joseph v. Truckenmiller

183 Mo. 9 | Mo. | 1904

MARSHALL, J.

This is a - consolidation of the case of City of St. Joseph v. Martin Truckenmiller, with the case of Martin Truckenmiller v. City of St. Joseph, both of which cases were pending in the circuit court of Buchanan county. The first-named and above-styled case is a suit to enforce a special taxbill for .$50 against a certain lot belonging to the defendant, for special benefits arising to it by the opening and extension of Thirteenth street, in the city of St. Joseph. The case of Martin Truckenmiller v. City of St. Joseph is a bill in equity to declare said taxbill void and to enjoin its collection, and to cancel the same as a cloud upon the plaintiff’s title to the land. The ease is predicated upon the ground that the summons was issued and made returnable by the judge in vacation, and not by the court in term time, and because sections 5648 to 5657, Eevised Statutes 1899, under which the condemnation case was conducted, are violative of section 1, article 6, and section 30, article 2, of the Constitution of this State. It was agreed that the petition in the equity case should be regarded as the answer to the suit at law. In consequence of the premises, a constitutional question was raised by the defendant in‘the trial court, and that question having been decided against the defendant, the case is properly before this court, on the defendant’s appeal. So far as they are essential to the determination of the -case, the facts will be stated in the course of the opinion.

I.

The city of St. Joseph was, at the time of these proceedings, a city of the second class, under article 3, chapter 91, Eevised Statutes 1899. The Common Council properly and regularly adopted an ordinance for the opening and extension of Thirteenth street; which ordinance was in all respects in compliance with the law governing such proceedings. Thereupon, the city instituted a condemnation proceeding in the circuit court to carry into effect the provisions of the ordinance. Upon the filing of the petition, the judge of the circuit court, in vacation, ordered a summons to issue against the defendants, the defendant Truckenmiller among them, returnable more than ten days thereafter, and in vacation instead of to the beginning of a term. Tie •defendant Truckenmiller was personally served with a •copy of such summons. Upon the return day it appeared that all of the defendants had not been served, so an order of publication was granted as to such un-served defendants, and the cause was continued for further proceedings until the first day of the next regular term of the court. During that term and after all the defendants had been served, the court appointed commissioners. Thereafter the commissioners heard the case and made their report, the report was accepted by the city, no exceptions were filed, the court entered a judgment approving the report, and among other things, assessed the benefits in question as a special lien against the defendant’s lot, the judgment was certified to the city clerk and by him entered in the tax book as required by law, and reported, to the Common Council and at its first session thereafter it made an appropriation to pay the damages and costs. In short, all the various steps required and provided by law were properly and regularly taken, and the taxbill not having been paid, the city instituted suit to enforce it.

The first contention of the defendant is that the summons in the condemnation case was made returnable in vacation and not at the beginning of a term, and, therefore, the taxbill sued on is void. Sections 5648 to-5658, Revised Statutes 1899, under which the proceedings were had in the condemnation case, are in all essential particulars like sections 2 to 12 of article 6 of the-charter of the city of St. Louis, and were evidently borrowed bodily from the St. Louis charter.

The question here raised, together with the right to have different proceedings in such condemnation cases from the proceedings in ordinary civil actions, was-expressly raised in City of St. Louis v. Gleason, 15 Mo. App. l. c. 30; s. c., 89 Mo. 67; s. c., 93 Mo. 33, brief of counsel for appellant, point 6, 89 Mo. at page 68, and was there held to be untenable. The Court of Appeals held that the authority was specially conferred upon the court by the charter of St. Louis and that the power to confer jurisdiction in such eases carried with it the power to-regulate its exercise, saying: “And, therefore, the objection that the provision of the charter respecting the notice to be given, and other steps to be taken in the course of the proceeding, are not in conformity with the-provisions of the practice act, which regulates civil actions in the circuit court, is not well taken.”

Here the jurisdiction is conferred, and all matters of practice in such cases is conferred, by a general- law of the State. It was competent for the General Assembly to authorize all the preliminary proceedings prior to the hearing of the exceptions and the entry of the judgment, to be conducted in vacation. [State ex rel. v. Woodson, 161 Mo. 444.]

The defendant in this case seems to have been charged alone with benefits. It does not appear that his property was taken. Yet he was made a party defendant and personally summoned. Ordinarily the only notice persons, whose land is not taken, but only benefited, get, is by publication of the boundaries of the benefit district, which is held to be due process.of law in this State. [City of St. Louis v. Ranken, 96 Mo. 505; see, also, Eyssell v. St. Louis, 168 Mo. 607.]

This results in holding that the first point made by defendant, is untenable.

II.

The defendants further contend that the taxbill is void because the Common Council did not appropriate the damages and costs at its first session after the city clerk reported the judgment to it, as required by section 5656, Revised Statutes-1899.

This is a misapprehension. The judgment was rendered on April 3, 1901. A certified copy was sent to the city clerk on April 19, 1901. He reported it to the Common Council on April 22, and an appropriation ordinance was introduced in the council on that day, which was passed May 7,1901. There were seven meetings of the municipal assembly between April 22 and May 7, 1901, but they were held at the same session of the assembly, and it is the session and not the several meetings during the session, that the law has reference to. [R. S. 1899, sec. 5507.]

III.

Finally it is insisted that the statutes regulating condemnation cases hy cities of the second class violate section 1 of article 6, and section 30 of article 2 of the Constitution of this State. Section 1 of article 6 provides in what courts the judicial power of the State shall he • vested. Among those courts is the circuit court. That court exercised jurisdiction in the condemnation case. What the judge did in vacation related to mere matters of procedure prior to the hearing and judgment. The statutes, therefore, do not offend against this provision of the Constitution.

Section 30 of article 2 provides: ‘£ That no person shall he deprived of life, liberty or property without due process of law.” The defendant was made a party to the condemnation case and was personally served. The proceedings had in that case were such as the law provides for all such cases. The defendant had a day in court. He did not avail himself of it. He had the benefit of due process of law. [Hunt v. Searcy, 167 Mo. l. c. 177; Eyssell v. St. Louis, 168 Mo. 607.]

The judgment of the circuit court is right and is affirmed.

All concur.