Zielda Forsee Investment Co. v. Phoenix Brick & Construction Co.

BROADDUS, P. J. This is a suit to cancel certain taxbills issued as a lien against certain real estate of the plaintiff’s situated in the city of St. Joseph, a city of the second class. The taxbills were issued in part payment of the work of grading Twenty-second street. The petition describes the land owned by plaintiff against which the taxbills were issued, the passage of the ordinance for the grading of the street by the common council of the city, the execution of the contract for the work by the defendant and the issuing of the taxbills and their delivery. It is alleged that the taxbills are void by reason of certain defects in the proceedings before the circuit court of Buchanan county, which were authorized under sections 5664 to 5667, of the Revised Statutes of Missouri 1899, for the assessments of benefits and damages to landowners; that the price was so exorbitant as to be fraudulent; and that the assessment of the cost of the work was [360] erroneous. Other objections were made but we understand they were not inquired into on the trial. The answer admitted the passage of the ordinance, the execution of the contract and the issuing of the tax-bills, but denied all the other allegations of the petition. By way of cross-bill the defendant alleged the validity of the taxbills and asked for judgment thereon. The charter of the city of St. Joseph provides that before any grading shall be done upon the streets or highways of the city, the mayor shall causé a certified copy of the ordinance, providing for such grading, to be filed in the circuit court of Buchanan county and the damages and benefits to be ascertained as provided by said sections of the statute. The mayor caused a certified copy of the ordinance to be filed and an order of publication was made thereon and the cause was regularly set for hearing. At the return day, no claim for damages having been filed by any of the landowners, the court authorized the city to proceed with said grading and decreed, “that all persons owning property abutting upon said street, within the limits of said proposed grading, be and the same are hereby precluded from making any claim for damages on account thereof, and that the costs of the proceedings be taxed against the city of St. Joseph.” The contention of plaintiff is that the proceedings Avere void for the failure of the court to appoint commissioners to assess benefits and damages to' abutting landOAvners. Section 5665 was amended so as to make it read as follows: “No street, alley or other public place in any city of the second class shall be graded so as to change the existing grade thereof, unless the property-owners to be affected thereby petition therefor and waive all claim to damages on account thereof, or unless such damages shall be first ascertained and paid as hereinafter provided, and any special taxbills issued for grad [361] ing in violation of this law shall be void.” Session Acts, 1903, p. 74. Section 5670, providing for the ascertaining of damages reads as follows: “When the mayor or other city officer shall file a certified copy of said ordinance in the circuit court or with the clerk thereof, such court or judge thereof shall fix a day and place for, assessing the damages and benefits to arise from the proposed grading, and shall make an order reciting the ordinance, and said order shall be directed to all persons whom it may concern, without naming them, notifying them of the place and the day fixed for the ascertaining of the damages and benefits to arise from such grading. A copy of such order shall be published in each issue of some newspaper of general circulation printed and published in the city, for two successive weeks, the last insertion to be not more than one week prior to the date so fixed for said hearing; said cause may be continued or postponed from time to time. No notice of said proceedings shall be necessary except as herein provided, and proof of publication of such order may be made by the affidavit of any editor or person connected with the newspaper. On or before the day set for the hearing, any person claiming damages by reason of the proposed grading may file or cause to be filed with the clerk of said court a description of the property claimed to be damaged, and the interest of the claimant therein. The clerk shall note the filing of every such claim as a part of the record in said cause.” Section 5671 provides that: “On the day set for the hearing, if the copy of the order has been duly published as herein required, the judge of court shall appoint and cause to be impaneled a board of six commissioners,” etc. Section 5672, defines the duties of the commissioners. [362] The defendant contends that as tbe court had jurisdiction of tbe subject-matter and of tbe parties tbe failure to appoint commissioners to assess damages and benefits was a mere irregularity, which could only be raised on appeal. It is held that in a proceeding to condemn land for a street, where the court had jurisdiction of the subject-matter and the parties, the judgment is conclusive as to collateral attack although it may be erroneous on its merits, or irregular in its form. [Burke v. The City of Kansas, 118 Mo. 309.] And to the same effect is State v. Miller, 110 Mo. App. 542. And it is held in condemnation proceedings that: “While the statutory requirement in such proceeding for acquiring jurisdiction of the person and of the subject-matter must be strictly followed, yet when such jurisdiction is obtained, the judgment of condemnation imports the same verity, and is no more subject to collateral attack then is a matter of general jurisdiction.” [Union Depot Co. v. Frederick, 117 Mo. 138.] We gather from what tbe courts have said in tbe cases cited that when tbe court' acquires jurisdiction of tbe subject-matter * and tbe parties its judgment is not subject to collateral attack, for mere irregularities in tbe proceedings. And this is tbe general and accepted rule. The statute as we have seen prohibits the changing of the existing grade of a street except upon two contingencies, vis.That the property-owners petition therefor and relinquish claims for damages; or that the damages shall be ascertained by commissioners appointed by the court. In order to obtain complete jurisdiction of the subject-matter it was necessary after the filing of the ordinance and its publication and fixing a day for a bearing, for the court to have appointed commissioners to ascertain benefits and assess damages to abutting property-owners. Until this was done the [363] court was not authorized to render a judgment of any kind. In a late case the Supreme Court has said: “It has been the uniform expression of this court that where private property is sought to be taken against the will of the owner under statutory authority all the statutory requirements must be fully and strictly complied with.” [In re Bledsoe Hill, 200 Mo. l. c. 642.] The statute unqualifiedly prohibits change in the grade of a street against the will of the abutting owner unless his damages have been assessed. The judgment of the court is void for the reason that the statute was not complied with. It cannot be said the pretended judgment in fact was any judgment. The only authority the court had was to appoint commissioners and enter judgment upon their report as ascertaining benefits and assessing damages to abutting property-owners. This authority the court did not exercise, but assumed the authority of entering judgment precluding abutting owners from making any claim for damages to their property in violation .of the express provision of the statute. The court not having complied with the requisition of the statute all the proceedings were void. To uphold the proceedings would operate to nullify the statute. As what has been said goes to the validity of the entire proceedings it is unnecessary to notice other questions raised. Affirmed. All concur.