Shaffner v. City of St. Louis

31 Mo. 264

Opinion

Scott, Judge,

delivered the opinion of the court.

This was an action brought by the plaintiff, Shaffner, against the City of St. Louis, for the sum of $16,830, damages .to the plaintiff, assessed for opening South Twelfth street from Chouteau avenue to Gratiot street.

The amended charter of the city of St. Louis, approved February 23, 1853, and March 5, 1855, in relation to the opening and improving streets, section 4, enacts that it shall be the duty of the jury, first, to ascertain the actual value of the land proposed to be taken for the opening, widening, or altering of a lane, alley, street, avenue, wharf, or public square,' without reference to the proposed improvement; then, for the payment of such sum, to assess against the city the value to the public generally of the proposed improvement and to assess the balance against the owner or owners of the property fronting on such lane, alley, street, avenue, wharf or square, and of the property benefitted, according to the value of the property so assessed and in the proportion that the owners thereof may be respectively benefitted by the proposed improvement; and the sum or sums to be paid by the owner or owners of property respectively benefitted by the improvements, as ascertained by the jury, shall be a lien or liens upon the property so changed and shall be collected as provided by ordinance. Sec. 6. If the verdict of the jury is not set aside by the mayor, .it shall be his duty, within four months, to report the same to the council, and if an appropriation is made by the council within three months thereafter to pay the sum or sums awarded to be paid by the city, it shall then be lawful for the city to take possession of the ground so condemned to public use.

Conceding, as the plaintiff contends, that the damages he claims from the city have been assessed according to the foregoing provisions of the charter and of the ordinances passed in pursuance thereto, we cannot see the ground on which this action can be sustained. Certainly the charter only makes the city primarily liable for the damages assessed on account of the benefit that will result from the improvement to the public generally. The amount of those damages is $1,431.80. Ordinance 3477 prescribes the manner in which the stuns assessed to individuals as benefits, shall be collected by providing that judgments shall be rendered- by the mayor in the name of the city, on which executions shall issue directed to the city marshal, to be by him executed. Ordinance 3790 confirms the verdict of the jury in the matter of opening South Twelfth street, and the mayor is directed to have that street opened when the damages, amounting to the sum of $15,398.20, assessed to individual owners, shall be collected and paid into the treasury, to meet and defray the expenses caused to private property in opening and widening said street, and directs that the sum of 11,431.80 awarded against the city be paid. The plaintiff’s action affirms the validity of all the proceedings that have been taken for the condemnation of his land. If these proceedings then are valid, what is there in the charter or the ordinances which have been cited which makes the city primarily liable for the damages assessed to individual owners for benefits accruing from the opening of the street? The mayor is not required to open the street until the damages assessed to individuals are collected. He is not required to appropriate or use the property condemned until the damages are collected. We are not now inquiring whether the plaintiff would be entitled to any, or what remedy, in the event the city by her officers should fail to collect the damages assessed to him. This action is conceived in the idea that the condemnation of the property, and the confirmation of the inquest by the coimcil without anything more, subjects the city immediately to an action for all the damages assessed by the jury when another mode of obtaining them is prescribed. It may be an injury to an individual to have his prbperty condemned for the public use and then be compelled to wait for his damages, as the property in the meantime, if it be unimproved, cannot be applied to any beneficial purpose. In this particular case, however, the owner has not as yet been deprived of his property, and he is now receiving rent for it, and it also appears that as long ago as the 15th of August, 1846, an ordinance was passed, No. 1752, entitled an ordinance establishing the wharf, streets, alleys and public places by which South Twelfth street and a great many others were established, showing that said street would necessarily cover the ground now condemned for that purpose. It appears from the facts that the city in this matter is acting in good faith, her object being not to avoid the assessment because she is dissatisfied with it, but doubts have arisen about the regularity of the assessment, and some of the individuals assessed for benefits have contested the matter and actually enjoined her from collecting them, so that should there be a recovery against her in this action, she might not be able hereafter to collect them from the individuals to whom they have been assessed.

Although, from the view we take of this matter, it is not necessary to determine the question whether the city can dispute the regularity of the proceedings of her agents in condemning the land of the plaintiff, as we are of the opinion that had the regularity of the assessment been beyond question she would not have been liable to this action ; yet, as other suits have grown out of this assessment, and as the matter has been discussed, we deem it advisable, with a view of ending all the litigation arising from this source, to give an opinion in relation to the propriety of the proceedings had for condemning the land of the plaintiff.

Proceedings to deprive an individual of his property without his consent, or to impose a tax against his will, are stricti juris, and those who take them should see not only that they have a foundation in law for their beginning, but that they are also conducted in strict conformity to the requirements of the statute which authorizes them. This is a clear principle of our law, and its observance is necessary even from prudential considerations, were it not recommended by others of more weight. By ordinance 3548 the mayor was empowered and directed to open South Twelfth street in accordance with the requirements of the amended city charter, and in conformity to city ordinance 1752, establishing that street as a public highway. Accordingly notice was given in pursuance to the amended city charter, and on the day appointed for the meeting of the jury nothing was done but to receive proof that the notice had been published as required and the proceeding was adjourned to the 6th of November following. On that day the parties appeared by their attorneys, as the report states, and the jury was sworn, who, having made some progress, the matter was adjourned until the 10th of November. On that day the parties ajopeared by their attorneys, and the jury having inspected the premises sought to be condemned under ordinance 3548, suggested to the court for the benefit of all parties interested a change in the-line of South Twelfth street, which being considered by the mayor, it was ordered that the jury be discharged and the proceedings were continued until the 9th of December. On, that day the parties appeared by their attorneys and a jury, consisting of the same persons as the former jury, was sworn and progressed under ordinance 3752. This ordinance-adopted the suggestion of the jury, and was passed 5th of December, 1856, during the interval between the adjournment from the 10th of November until the 9th of December. From the 9th of December the proceeding was adjourned from time to time until the 29th of December, when a final report was made by the jury; the journal, except on one occasion, stating that the parties appeared by their attorneys to the various adjournments. We are of the opinion that in a matter like that under consideration, the formal entry by the officer that the parties appeared by their attorneys, unless all the parties are named of record, cannot supply the want of notice. Parties are unknown, and it is impossible to know who are parties to the proceeding until the jury has reported. Men never dream that they are interested but as one of the public, and never learn that they are parties until, to their surprise, they find that they have been assessed for a benefit. Under this state of things the legal notice required by the charter cannot be waived. The appearance of the mostly interested cannot affect the interest of others, and the only security for the regularity of the proceeding is in a strict compliance with the law. What is remarkable in this matter, is, that the mayor should be of the opinion that the change in the line of the street suggested by the jury could not be made without the authority of an ordinance, and after the ordinance was passed that it was necessary to swear again the jury, and yet, after this was done, that the proceedings could be continued without a new notice. The proceedings were commenced under one ordinance directing the street to be opened, and before they were finished the lines of that street were altered by another ordinance, and yet the proceedings, though in conformity to the latter ordinance, were continued under the original notice which required them to be under the former one. In a matter of this kind, where all the owners of the property benefitted by.the opening of a street are to be taxed, it is impossible for the courts to ascertain how the variation of the line of the street will 'affect them. We cannot say that the alteration was not a material one; the circumstances forbid it. Some who might have acquiesced in the street as originally established, would have objected, perhaps, had they been aware of the change. The history of this proceeding shows how unwise it is to depart one iota from the law in condemning property for public use, when a few of the neighbors are by the law compelled to pay for the property condemned. The seeds of litigation in such cases will be soon broadcast, where any ground is given for the opinion that the requisite legal steps have not been taken in order to condemn the property and to assess the benefits. We are of the opinion that after the line of the street as originally established had been changed by an ordinance passed subsequently to the beginning of the proceedings to condemn private property for public use and to assess benefits, the mayor could not proceed under the original notice, but the proceeding first commenced should have been abandoned, and a proceeding de novo should have been had under another notice such as is required by the amended charter.

The judgment is reversed.

The other judges concur.