240 S.W.2d 703 | Mo. | 1951
On July 26, 1950, relator filed her petition in this court asking that a writ of prohibition be issued against respondent. Our preliminary rule was issued and respondent, for his return, filed demurrer to the petition and the preliminary rule upon the grounds that they do not state facts sufficient to constitute a cause of action; and, that, under the Constitution and laws of Missouri and the Charter of the City of St. Louis, the trial of exceptions in condemnation proceedings in said city is not required to be held before a common law jury of twelve persons. Under this state of the record, we must accept as true all proper allegations of the petition.
The petition alleges that respondent is a judge of the Circuit Court of the City of St. Louis and is presiding in Division 7 of said court; that relator is one of the defendants in a condemnation proceeding brought by said city pursuant to a certain ordinance providing
It is conceded that the city proceeded under' and in accordance with the applicable provisions of its charter. Sec. 7, Art. 21 of the charter, defines the procedure if exceptions are filed to the commissioners’ .report and provides that the court shall review the report and may order a new assessment under additional instructions or may appoint a new commission of three persons to make another assessment; and shall hear and dispose of such exceptions with all reasonable speed, and may itself assess benefits anew.
However, relator contends that such procedure is in conflict with certain statutory and constitutional provisions which guarantee to her a trial by a common law jury. She relies on Sees. 523.060, 88.080 and 88.090, R. S. 1949; Art. 1, Secs. 22 and 26; Art. 11, Sec. 4, of Missouri Constitution 1945, and the Fourteenth Amendment of the Constitution of the United States.
Sec. 523.060, originally passed, Laws 1943, p. 623, and amended Laws Í945, p. 1072, provides: “Any plaintiff or defendant, individual or corporate, shall have the right of trial by jury of twelve persons, if either party files exceptions to the award of commissioners in any ■condemnation case. ’ ’
. The - rights conferred by this statute, and the cited constitutional provisions, were recently considered by this court en banc in Kansas City v. Dougherty, 361 Mo. 829, 237 S. W. (2d) 118. The court divided four to three on the question of the effect of said Sec. 523.060. The majority of the court concurred in the opinion of Dalton, J.,
Both opinions also agree that, prior to the passage of Sec. 523.060, the courts of this state had uniformly held that a trial of exceptions to an award of damages in' a condemnation' suit by a common law jury was not available to individual defendants, under the constitutional provisions cited by relator, where cities under special charter brought the proceeding in the manner provided by its charter, and both opinions approve such holding. Thus it is unnecessary again to discuss the constitutional provisions cited and relied on by relator. (See cases cited in opinion by Ellison, J.)
In her brief filed subsequent to the oral argument in this case, relator contends that the only question involved in the condemnation proceeding against her is one of “consequential damages” as provided by Sec. 88.080, R. S. 1949, and that under. Sec. 88.090 (1949) she is entitled to a trial by a common -law jury on her exceptions to the report of the commissioners. It is perfectly apparent from relator’s petition that the city is proceeding under and in the manner provided by its" charter and not under Sec. 88.080. It does appear from
We hold that the Legislature intended, by the 1949 Act, supra, to, restore to constitutional charter cities the right,, if they so elect, to condemn property for public use. and to assess damages and benefits in the manner provided by its charter.
It follows that our preliminary rule should be and is discharged and peremptory writ denied.