City of St. Louis v. Buss, 59 S.W. 969

City of St. Louis v. Buss

59 S.W. 969

Mo.

1900

Check Treatment

BRACE, P. J.-

This is аn appeal by the Hill-O’Meara Construction Company from a judgment of the St. Louis City Circuit Court, modifying and approving the report of the commissioners in a condemnation proceeding in said court, under article 6 of the charter of said city, by sectiоn 7 of which it is provided that the report of the commissioners “may be reviewed in the circuit court on written exceptions filed by either party in the clerk’s office within ten days after the filing of such report, and the court shall make such order therein as right аnd justice may require, and may order a new appraisement upon good cause shown.” The proceeding was to condemn land for the opening of Euclid avenue from St. Louis avenue to the Natural Bridge, was regular, and in due time the commissionеrs filed their report in which they found the value of the lands proposed to be taken for the highway to be the sum of $8,275, among which wаs certain land of the appellant, for the taking of which they assessed its damages ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍at $3,250. They also assessed against the сity of St. Louis as the amount of the benefit to the public generally the sum of $100, and the remainder of the $8,275 they assessed against certain lands specially benefited by the improvement, among which were eleven lots belonging to the appellant construction company, which were severally assessed for benefits. In due time appellant filed its exception to the rеport of the commissioners claiming that the value allowed it for the land'taken was inadequate, and the benefits' assessеd against its lots were excessive. Upon the hearing of the exceptions, the court set aside the assessment against three, reduced the assessment against five, of the appellant’s lots, overruled the other exceptions, and increased the assessment against the city to $386.75. #To which action of the court the city made no objection, and judgment was thereuрon entered in favor of the plaintiff, on the report as thus modified, from which this appeal is taken.

*12The contention of the appellants, in brief, is: that the court had no authority to thus modify the report of the commissioners, and in support of this contеntion, section 21, article 2, of the Constitution, is invoked, by which it is provided “that private property ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍shall not be taken or damagеd for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissionеrs of not less than three freeholders, in such manner as may be prescribed by law,” and the cases of Bridge Co. v. Ring, 58 Mo. 491, and Rochester Water Works v. Wood, 60 Barb. (N. Y.) 137, are cited. If the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍court had undertaken to modify their report as to the damages assessed for the property taken for the improvement, then this provision of the Constitution would have some application, and the contention receive some support from the cases cited. But such was not the case. The court did not in any manner change or modify the repоrt of the commissioners as to the damages for the land taken. On the contrary, the modification was confined to the assessment for benefits to defendant’s lots not taken or damaged by the improvement. The city takes the property of a citizen for a public street or highway under the power of eminent domain. It raises money to malee compensation therеfor under the power of taxation, by levying ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍a portion thereof upon property that is specially benefited by the imрrovement. While under the charter but one proceeding is provided for the accomplishment of both objects, yet'thеy are distinct in character as are the powers from which they flow. So far as the proceeding goes, in the exercise of the power of eminent domain, it is subject to the constitutional provision quoted. But we know of no constitutional prоvision requiring the benefits to be “ascertained” by “a jury or board ,of commissioners.” In that proceeding, however, the chartеr of the city of St. Louis (article 6, sections 4, 5, 6 and 7) does provide *13that the board of commissioners appointed for the рurpose of condemning the property required for the public use, shall also assess the benefits, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍subject to the powеr of the court in which the proceedings are had, to “review” their assessment, on which review, “the court shall make such order thеrein •as right and justice may require, and may order a new appraisement.” The power of the commissioners to assess the bеnefits, and the power of the court to review the assessment •is derived from the same source, i. e., the charter. In the exercise of that power, the court is required to make such orders “as right and justice may require.” This requirement •is plenary and mandatory, imposes an absolute duty upon the' court, and if in.the proper discharge of that duty, it becomes necessary, the court “may order a new appraisement upon good cause shown.” This latter requirement, unlike the former, is permissive, and imposes no absolute duty. Whether or not a new appraisement shall be ordered in any given case; upon cause shown, is left to the judicial discretion of the court. In some cases, the exercise of a wise judicial discretion may demand that the assessment of benefits against all the property be confirmed; in some;' that the assessment against all the property be set aside; in others, that the assessment against some of the property be confirmed and against some be set aside; аnd yet in others, that the assessment against some of the property be confirmed, against some be set aside; and against sоme be reduced ’as was done in the case in hand. The authority of the court to exercise its discretion in the last mode is just as ample as it is in the first three. And while in any case the court upon good cause shown, has a like discretion -to order a nеw appraisement, in no case is it obligated to do so either by the Constitution of the State, or the charter of the city, unless- justice and right require it. *14It is only an abuse of tbe discretion, in tbe particulars mentioned, that would warrant tbe interference of this court, and finding no such abuse in the proceedings in this case, tbe judgment of tbe circuit court is affirmed.

All concur.