State ex rel. Rogers v. Hug

Wagner, Judge,

delivered the opinion of the court.

The relator applied for, and the Circuit Court of St. Charles county granted, a writ of mandamus against the defendant Hug and others, who were mayor and councilmen of the city of St. Charles, to compel them to levy a special tax to pay off a judgment, which he alleged he had obtained against the said city, and upon which execution had been issued and returned unsatisfied. From the action of the Circuit Court in granting the mandamus an appeal was taken to the District Court, where the judgment was reversed, and the case is now brought here.

The proceedings which resulted in the rendition of the supposed judgment grew out of the acts of the city authorities in attempting to coridemn certain real estate belonging to the relator. By the act incorporating the city of St; Charles (Sess. Acts, 1849, p. 272), power is given the mayor and councilmen to regulate, pave, and improve the streets, and to extend, open, or widen streets, avenues, lanes, or alleys, upon making the persons injured thereby adequate compensation ; and for the purpose of ascertaining the amount of injury or damage, the mayor is authorized to cause a *119 jury to be summoned and sworn to assess the damages. When any assessment of damages is made, either the city or any person interested feeling himself aggrieved by such assessment is allowed to appeal to the Circuit Court. Whenever any such appeal is taken to the Circuit Court, the same is to be tried as other issues in said court; and in case damages are assessed to any person by a jury or court, the same are required to be paid out of the city treasury before the property of such person can be taken for public use. (Art. VI, §§ 2-4.)

In pursuance of the above authority, the city instituted proceedings to condemn a strip of ten feet off from the end of the relator’s lot on Clark street, for the purpose of making a pavement. The mayor caused a jury to be impaneled, who assessed damages, and from that assessment the relator appealed to the Circuit Court, where he obtained an award for seven hundred and fifty dollars; and this is the supposed judgment upon which this suit is founded. After the assessment in the Circuit Court, the city abandoned the enterprise, refused to pay for the property, and the relator is still in quiet and undisturbed possession thereof.

The statute makes provision for the issuance of mandamus against corporations, requiring them to levy special taxes for the payment of judgments outstanding against them where an execution has been unavailing. But this not such a judgment as is contemplated in the act. The law has reference to a common-law judgment, regularly rendered and mutually binding. The charter does not provide for the rendition of a judgment, nor is any mode pointed out for the collection of the damages in the case; it is only declared that the property shall not be taken till the damages are paid. This is the security which the property-holder has against the appropriation of his estate.

It was doubtless seen that juries might award damages so exaggerated and enormous that the city would be incapable of prosecuting her designs, and wholly unable to pay for the property at the assessed price. So, upon the payment of the costs, she might desist if she would, and the parties would be left in the same situation that they were in before proceedings commenced.

*120 The simple act of assessment does not invest the city tyith the right of property, nor does it divest the title of the property-holder. Till payment made according to the provisions of the charter, there is no transferrence of title in the city — no divestiture from the citizen. The same question was recently before this court, upon a provision of the charter of the city of St. Joseph, which is precisely similar to the one we are now construing ; and we held that after the assessment the city had the right to abandon, and that, if she refused to pay for the property and appropriate it, she would not be liable. (City of St. Joseph v. Hamilton et al., 48 Mo. 282 .)

That case is decisive and controlling authority here. This view of the case effectually disposes of this controversy, and renders it unnecessary to notice other matters which have been discussed.

Judgment affirmed.

The other judges concur.