168 Mo. 607 | Mo. | 1902
— This is a bill in equity to cancel an assessment of two hundred and fifty dollars, special benefits charged against the plaintiff’s lot in city block 3909, fronting one hundred feet on Maryland avenue, caused to accrue by reason of the opening of Newstead avenue from Olive street to McPherson avenue, under ordinance No. 15670. There
I.
The sole allegation of the plaintiff’s petition is, that the special benefits assessed against the plaintiff’s property constitute simply a special taxbill and that it is barred by limitation, under section 6775, Revised Statutes 1889. The case was tried by the plaintiff upon this theory alone, in the lower court. Upon the oral argument in this court it was suggested that the special benefits were not simply in the shape of a special tax-bill but that they were in form and effect a judgment of the circuit court, and that judgments were expressly excepted by the terms of section 6775, Revised Statutes 1889, and that judgments are not barred until the expiration of ten years, and may be kept alive forever if revived within successive periods of ten years. [Sec. 6013, R. S. 1889.] In avoidance of this suggestion the plaintiffs now contend that the special benefits, if a judgment, constitute only a lien on the land,
These considerations necessitate a review of the law under which in the city of St. Louis a special benefit may be charged upon the property of a citizen for the opening of a street.
Section 2 of article 6 of the charter of St. Louis provides that the assembly, upon the unanimous recommendation of the board of public improvements or upon the petition of the owners of the major portion of the ground fronting thereon, may pass an ordinance for the opening of a street, etc., and that thereupon the city counselor, in the name of the city, shall apply to the circuit court, “by petition setting forth the general nature of the improvement proposed to be made, the names of the owners of the several lots or parcels of land, if known, or if unknown a correct description of the parcels whose owners are unknown, and praying the appointment of three disinterested commissioners, freeholders of property in said city, to assess the damages which said owners may severally sustain by reason of the appropriation and condemnation of such real estate by the city, for any of the purposes aforesaid, to which petition the owners of all such lots or parcels of land embraced in the proposed improvement shall be made parties defendant by name, if the names are known, and by description of land of unknown owners.”
Section 3 of article 6 of that charter provides that upon the filing of such a petition a summons shall be issued, giving the defendants ten days’ notice of the time, when the petition will be heard, and provides that the city marshal shall serve the summons “in the same manner as writs of summons are or may be by law required to be served,” and also provides for a notice by publication for four weeks to all unknown and nonresident owners.
Section 4 of article 6 provides that upon being satisfied
Section 5 of article 6 provides: “It shall be the duty of the commissioners to ascertain the actual value of the land and premises proposed to be taken, without reference to the projected improvement and the actual damages done to the property thereby, and for the payment of such values and damages to assess against the city the amount of benefit to the public generally, and the balance against the owner or owners of all property which shall be especially benefited by the proposed improvement in the opinion of the commissioners, to the amount that each lot of said owner shall be benefited by the improvements. The sums to be paid by the owners of property especially benefited by the improvement, as ascertained by the commissioners, shall be a lien on the property so charged, and shall be collected as provided by ordinance, and when collected shall be paid into the city treasury as a separate fund to be used exclusively for the payment of the damages awarded,” etc.
Section 6 of article 6 requires the commissioners to view the property, assess the value and damages and benefits and make their report under oath, ■ assessing separately “the damages allowed to each owner, and the benefits assessed against each individual.”
Section I of article 6 provides: “The report of said commissioners may be reviewed by 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 and justice may require, and may order a new appraisement upon good cause shown; but the hearing of such exceptions shall be summary, and the court
Section 8 of article 6 provides that the city shall pay the costs of the proceeding up to the filing of the exceptions, and any subsequent costs shall be paid by' the losing party.
Section 9 of article 6 provides that upon the filing of the commissioners’ report the court shall give the city, upon application of the city counselor, reasonable time to report the result of the same to the municipal assembly for its information and approval, during which time no action shall be taken by the court upon the report; and further gives the city the right to dismiss and withdraw the proceedings on payment of the costs, at any time before the final confirmation of the report, but if it does so dismiss the proceedings prohibits the city to institute any further condemnation suit for the same purpose within ten years, unless upon petition of the owners of threequartérs of the property fronting the improvement, or upon payment by the city of the entire damages assessed for the taking of the private property for public use.
Section 10 of article 6 provides: “When the report of the commissioners shall have been approved, or final action taken thereon by the court, the clerk of the circuit court shall make a certified copy of the report, and the final action of the court thereon, and deliver the same to the city comptroller, who shall forthwith record the same in a book to be provided for that purpose. It shall be the duty of the comptroller, as soon as the same is recorded, to furnish a copy thereof to the assembly, and the assembly shall, at its first session thereafter, make an appropriation for the payment, out of the city treasury, of all the damages assessed in favor of the owners of property appropriated, and the city treasurer shall cause the same to be paid to the parties entitled thereto, respectively, or into court for their use, as provided by ordinance. Any
To these proceedings prescribed by charter, the ordinances of St. Louis have added the following supplementary proceedings: the street commissioner is required to furnish the city counselor with all necessary plats, showing the property affected by the proposed improvement, and the metes and bounds and the names of the owners thereof. [See. 875, Rev. Ord. St. Louis 1901]. The commissioners are required to assess the damages" for the property taken, and to assess against the city the benefits to the public generally, “and the balance against all property within a district to be ascertained, defined, laid down and established by the commissioners, as the district of property benefited by the proposed improvement,” and providing that before any such benefits shall be assessed against any property in the benefit district so established by the commissioners, “the city counselor shall give five days’ notice in the papers doing the city printing, of the establishment of said district and the boundaries thereof, and of the time and place, when and where the commissioners will proceed to assess said benefits, and inviting all persons interested to be present; and at said hearing all parties owning or interested in property in said district shall have the right to be heard, and may except to the report of the commissioners before the circuit court when it is filed.” It is further provided that, “The sums assessed as benefits against property within the district aforesaid shall be a lien on the property so charged, and shall be collected, if not paid as hereinafter provided, by suits in the circuit court of the city of St. Louis, in the name of the city of St. Louis, and when collected shall be paid into the city treasury as a special fund to be used exclusively for the payment of the damages awarded,” etc. [Sec. 876, Rev. Ord. St.
These charter and ordinance provisions have been considered and construed by this court and the action of the circuit court in such condemnation cases has been treated as a judgment by this court, and not simply as furnishing the foundation for a special taxbill to be issued by the comptroller. Thus, in St. Louis v. Thomas, 100 Mo. 223, it was treated as a judgment so that an appeal would lie therefrom under the code-relating to appeals from judgments of the circuit court notwithstanding no provision for an appeal is contained in the charter.
And the fact that the owner of property charged with special benefits receives notice only by publication does not militate against the validity of the assessment or the character of the order assessing the benefits. [Ibid., and, under analogous provisions of the charter of Kansas City, see, Kansas City v. Ward, 134 Mo. 172, and Kansas City v. Duncan, 135 Mo. 571.]
Thus, it will appear that such proceedings in the circuit court in condemnation cases by municipalities for opening, widening, establishing streets, etc., have been treated by this court as judgments of the circuit court. The fact that before final judgment the city is given the power to withdraw the proceeding and is prohibited from instituting another similar proceeding within ten years except upon the petition of the owners of three-fourths of the property fronting on the line of the proposed improvement or upon the payment by the city of the entire damages, and the fact that if the municipal assembly fails to appropriate the money to pay the damages allowed for the property taken at the same session at which the comptroller furnishes it with a copy of the judgment,
The object in view in giving the city the right to dismiss the proceeding after the commissioner’s report is filed, and of requiring the court to allow the city counselor time to report to the municipal assembly, what the commissioner’s report is, and of prohibiting the court from taking any action during that time, is to enable the public authorities to ascertain at what cost the public improvement contemplated can be put through, and if the cost is too great to be met out of available revenue, to permit the public to abandon the proceeding, and as a result the city can not again tie up the property of the citizen by a similar proceeding except on the terms pointed out.
And the object in view in making the failure to appropriate the money to pay the damages at the same session of the municipal assembly at which it receives from the comptroller a copy of the judgment, operate-as a dismissal of the proceedings, is to give the public another opportunity to say whether they will proceed with the public improvement, upon the terms fixed by the judgment of the court, after reviewing the report of the commissioners and making such order as right and justice may require, and if the public elect then to proceed, to require the prompt payment of the damages to the owner of the property taken or damaged.
None of these considerations make the order of the circuit court any the less a judgment, nor are any of these steps taken or allowed out of any regard for the owners of the property assessed with special benefits. They are provisions of law intended solely for the benefit and protection of the public at large operating through the municipal agencies. The judgment of the circuit court is none the less a final determination of the controversy, especially as to the damages to be paid by the city in the first place to the owners of the prop
But it is not necessary to go even this far to treat the action of the circuit court as a judgment.
The law requires a petition to be filed in court asking for the condemnation of private property for public use; requires the owners of all property affected by the proposed improvement to be made parties defendant by name, or if the owners be unknown the land to be described; requires a summons to issue and be served like a summons in an ordinary suit, personally, if possible, by publication for four weeks, if personal service can not be had; requires the commissioners to view the property and lay out a benefit district within which private property may be assessed with special benefits for the public improvement; requires the city counselor to notify by publication the owners of all property in the benefit district of the pendency 'of such condemnation proceeding and when and where the commissioners will meet to hear what they have to say concerning the assessment of special benefits and of the further fact that they may also be heard in court upon the report of the commissioners; requires a sworn report of the commissioners fixing jhe damages and assessing the benefits; permits exceptions to be filed to the report by any person interested and gives the court power to review the report, “and make such order therein as right and justice may require.”
All of this sounds very much to the trained legal mind
The fact is that the charter provides that the order of the court assessing the benefits shall be a lien on the property and shall be collected as provided by ordinance. It does not contemplate any special taxbill at all or any subsequent suit. The order so made is a judgment, and can only be resisted upon the same grounds that any other kind of a judgment can be defended against.. [St. Louis v. Ranken, 96 Mo. 497.] Such being its character under the charter, its force and effect is not impaired by the requirements of the ordinances which provide that the comptroller shall issue special taxbills thereon, which he shall deliver to the collector, who shall notify the owners of the property affected' to pay the same in sixty days,
Such being the nature and character of the judgment in such cases, it follows that while the special benefit is a liability created by law, it is not such a liability as is barred by limitation in five years, under section 6775, Revised Statutes 1889 (sec. 4273, R. S. 1899), because it is a judgment, which while a liability created by law, is nevertheless expressly excepted by that section. And being a judgment of the circuit court, the lien thereof expires in three years, under section 6012, Revised Statutes 1889 (sec. 3714, R. S. 1899) but the judgment itself is not barred until after the expiration of ten years, and it may be kept alive forever by successive scire facias proceedings, every period of ten years under section 6013, Revised Statutes 1889 (sec. 3715, R. S. 1899).
In this case the judgment assessing the benefits was rendered January 26, 1892, and the amended petition in this
The conclusion follows that the demurrer was properly sustained as to the first count of the petition. As to the second count, under section 650, Revised Statutes 1899, the plaintiff was entitled to the judgment of the court ascertaining and determining the right, title, interest and estate of each of the parties in and to the land. Under the allegations of the petition such an ascertainment could only have resulted in a judgment that the plaintiff owned the fee, and that the defendant had a judgment against the land for two hundred and fifty dollars special benefits conferred upon it by the opening of Newstead avenue. Inasmuch as the city did not insist upon a decree so defining the rights of the parties, the plaintiff is not injured, but rather benefited by the court failing so to declare. Eor if the court had so declared that would have created a lien for three years, and would have revived the judgment for ten years more. As it is, if the city has not revived the original judgment of January 26, 1892, that judgment is now barred. It therefore results that the plaintiff was benefited and not damaged by the judgment on the second count-, and, hence, he can not complain, and the other party does not complain.
Eor these reasons the judgment of the circuit court is affirmed.