Opinion
Nos. 38524-38525.
September 7, 1943.
1. JUDGMENTS: Attack after Expiration of Term: Writ of Error Coram Nobis. A judgment becomes final on the expiration of the term at which it was rendered; and the trial court thereafter has no power to modify or vacate it except upon a proper direct attack. When such an attack is made by motion requiring evidence to support it, the motion is treated as being in the nature of a writ of error coram nobis, as to which there are legal restrictions on the issues that may be raised and the scope of the evidence that may be introduced.
2. MUNICIPAL CORPORATIONS: Eminent Domain: Basis For Special Benefits. The special benefits which may be considered in assessing property owners are those arising from the improvement and the use for which the land is to be condemned.
3. MUNICIPAL CORPORATIONS: Eminent Domain: St. Louis Street Widening: Charter Provisions For Construction of Public Improvements Do Not Apply to Condemnation. The procedural steps required by Art. XXII of the Charter of St. Louis, dealing with construction of public improvements, do not apply to condemnation proceedings under Art. XXI.
4. MUNICIPAL CORPORATIONS: Eminent Domain: St. Louis Street Widening: Immaterial Whether Commissioners Considered Character of Paving. It is immaterial whether the commissioners considered the character and cost of the contemplated paving in assessing condemnation benefits, as the property owners had the opportunity for an adequate review in the circuit court.
5. CONSTITUTIONAL LAW: Municipal Corporations: Eminent Domain: St. Louis Street Widening: No Requirement That Construction Plans and Specifications Be Filed in Condemnation Proceeding. There is no statutory or legal requirement that the plans, specifications and estimates showing the nature and cost of the construction improvement must be filed in advance before special benefits can be assessed. This is a matter of evidence, not of jurisdictional procedure.
6. JUDGMENTS: Eminent Domain: Failure to File Construction Estimates Not Jurisdictional: Writ of Coram Nobis Not Available. The failure to file estimates of the cost of street construction in a condemnation proceeding, if legally required, would not be a jurisdictional matter which could be raised in a motion in the nature of a writ of coram nobis.
7. CONSTITUTIONAL LAW: Judgments: Eminent Domain: Front Foot Basis of Assessment: Question Not Properly Raised. The constitutional question of whether the assessment could properly be made on a front foot basis, without considering area, cannot be raised by a writ of coram nobis attacking the judgment. And this question was not timely raised in the trial court.
8. MUNICIPAL CORPORATIONS: Eminent Domain: St. Louis Street Widening: New Project Not Like Abandoned Proceedings. The consolidation of five street widening projects into one, with various changes, did not come within the provisions of the city charter dealing with "like and similar" condemnation projects.
9. JUDGMENTS: Eminent Domain: Writ of Coram Nobis: Defect in Petition May Not Be Raised. The failure of the condemnation petition to allege signature of three-fifths of the property owners, if required, cannot be raised by a motion in the nature of a writ of coram nobis.
10. JUDGMENTS: Eminent Domain: Writ of Coram Nobis: Questions Not Available. Various assignments of charter construction and constitutional questions are not dependent upon new facts and cannot be raised by a motion in the nature of a writ of coram nobis.
11. CONSTITUTIONAL LAW: Eminent Domain: Municipal Corporations: Assessment of Benefits: Charter Standard Not Required: Benefits May Be Assessed Under St. Louis Major Street Plan. It was not necessary for the charter of St. Louis to fix a standard for measuring special benefits in a condemnation proceeding. And the fact that the street is included in the Major Street Plan does not prevent assessment of special benefits.
Appeal from Circuit Court of City of St. Louis. — Hon. James E. McLaughlin, Judge.
AFFIRMED.
James E. Carroll and Igoe, Carroll, Keefe Coburn for appellants.
(1) The imposition of special assessments is the exercise of legislative power, namely, the power of taxation. Fruin-Bambrick Construction Co. v. St. Louis Shovel Co., 211 Mo. 86, 111 S.W. 86; Mudd v. Wehmeyer, 19 S.W.2d 891; McGhee v. Wabash, 249 Mo. 266, 155 S.W. 445. (2) The power of levying special assessments in this case has been delegated by the St. Louis Charter to the circuit court, which acts in a legislative capacity when entering its judgment assessing benefits. Secs. 1, 7 and 8, Art. XXI of the 1914 Charter; Albers v. St. Louis, 268 Mo. 349, 188 S.W. 83; Cornet v. St. Louis County, 319 Mo. 335, 240 S.W. 107, l.c. 111; St. Louis v. Senter Comm. Co., 84 S.W.2d 133; Eighth Morgan Garage and Filling Station v. St. Louis, 119 S.W.2d 202; St. Louis v. Dyer, 56 F.2d 842; Birmingham Drainage Dist. v. Chicago, B. Q.R. Co., 274 Mo. 140, 202 S.W. 404; State ex inf. v. Colbert, 273 Mo. 211, 201 S.W. 52. (3) Benefits must be based on estimates of the effect of improvements at the time of completion to increase the value of property, and not upon the effect of one or several steps in the process of completion of the improvement. Assessing benefits is the determination of the proportion to be paid by property owners of the cost of making public improvement, of which cost of property taken or damaged is one item. St. Louis v. Senter Comm. Co., 84 S.W.2d 133; Cornet v. St. Louis County, 319 Mo. 335, 240 S.W. 107; State ex inf. v. Colbert, 273 Mo. 211, 201 S.W. l.c. 57. (4) Special assessments levied by the circuit court are absolutely void if its record fails to show compliance with all Charter requirements, this because the authority of the court to act as a delegatee of legislative power depends on a showing of compliance with all the conditions set forth in the delegation of power. St. Louis v. Cook, 169 Mo. 587, 70 S.W. 143; Mudd v. Wehmeyer, 19 S.W.2d 891; Cornet v. St. Louis County, 319 Mo. 335, 240 S.W. 107; Doemker v. City of Richmond Heights, 18 S.W.2d 394; City v. Gleason, 93 Mo. 33. (5) The endorsing of an estimate of the costs on the recommendation of the Board of Public Service to the Board of Aldermen for a public improvement is declared necessary by the Charter, and its absence from said recommendation voids the entire proceedings. It is universally recognized there is nothing the law guards with more care and jealously than it does the right of a man to demand that, before his money or property be taken from him without his consent, every provision of the law made for that purpose shall be strictly followed. City of Kirksville ex rel. v. Coleman, 103 Mo. App. 215, 77 S.W. 120; City of Independence v. Briggs, 58 Mo. App. 241; City of Marshall v. Rainey, 78 Mo. App. 416; Wheeler v. City of Poplar Bluff, 149 Mo. 36, 49 S.W. 1088; City of De Soto v. Showman, 100 Mo. App. 323, 73 S.W. 257. The Board of Aldermen of the City of St. Louis does not have authority to adopt any ordinance for public work or improvements of any kind unless said ordinance has been prepared and recommended by the Board of Public Service with an estimate of the cost endorsed thereon. Sec. 1, Art. XXII of Charter; American Tobacco Co. v. Mo. Pac. Ry. Co., 274 Mo. 374, 157 S.W. 502; Baum v. St. Louis, 123 S.W.2d 48; State ex rel. Belt v. St. Louis, 161 Mo. 371, 61 S.W. 658; State v. Butler, 178 Mo. 272, 77 S.W. 560. (6) A thing which is not a benefit cannot be made the basis of an assessment of tax for benefits. 5 McQuillin, Municipal Corps., p. 637, sec. 2192. (7) Where the petition in a condemnation suit sets out in haec verba the ordinance that authorized the condemnation of certain property and this ordinance repealed by number the prior ordinances authorizing condemnation of the same property, then under such circumstances the court will take judicial notice of the condemnation suits instituted under those prior ordinances. Thompson v. Scott, 323 Mo. 790, 19 S.W.2d 1063. The court, taking judicial notice of prior suits condemning the same land described in the petition in suit before it, was without jurisdiction to proceed unless it affirmatively appears in the petition that Section 10, Article XXI, of the charter had been complied with. City v. Gleason, 93 Mo. 33, 8 S.W. 348; Sec. 10, Art. XXI, of Charter. (8) Want of jurisdiction may be taken advantage of at any time before or after trial. Jurisdiction cannot be waived in any manner. If the court was without jurisdiction in a cause, its judgment therein is absolutely null and void and may be set aside and for naught held. United Cemeteries Co. v. Strothers, 342 Mo. 1155, 119 S.W. 2d 762. (9) Municipal corporation possesses only powers expressly granted, those implied from or incidental to powers expressly granted, and those essential to declared objects and purposes of the corporation. Any reasonable doubt concerning whether municipal corporation has given power must be resolved in the negative. State ex rel. City of Hannibal v. Smith, 74 S.W.2d 367; State ex rel. Blue Springs v. McWilliams, 74 S.W.2d 336; State v. Butler, 178 Mo. 272, 77 S.W. 560; Union Depot R. Co. v. Southern Ry. Co., 105 Mo. 562, 16 S.W. 920. (10) The rule of strictissimi juris is applied in condemnation proceeding, by which property is taken for public use, for the reason such proceeding operates in invitum in derogation of common right. State ex rel. Cranfill v. Smith, 330 Mo. 252, 48 S.W.2d 891. In proceedings to condemn private property for public use, unless it affirmatively appear upon the face of the proceedings that every essential prerequisite of the statute (Charter) conferring authority has been complied with, such proceedings will be void. St. Louis v. Glasgow, 254 Mo. 262, 162 S.W. 596; City v. Gleason, 93 Mo. 33, 8 S.W. 348. (11) The Legislature (or Charter), because of limitations in Constitution, is without authority or power to command, direct or authorize a circuit court to use its (court's) judicial functions to give to the decision of a nonjudicial board or commission the character of a judgment. State ex rel. Haughey v. Ryan, 182 Mo. 349, 81 S.W. 435; State ex rel. Ballew v. Woodson, 161 Mo. 444, 61 S.W. 255; State ex rel. Board of Education v. Nast, 209 Mo. 708, 108 S.W. 563; Cornet v. St. Louis County, 319 Mo. 335, 240 S.W. 107; City of Sapulpa v. Paul Land, 223 P. 640, 35 A.L.R. 872. (12) If charter delegates to its agent the power to determine how much are or how far the benefits extend, it must provide in its delegation of power a standard, measure or policy from which or by which the agent can determine the amount of the benefit or how far the benefit district will extend. Wichita Railroad Light Co. v. Pub. Serv. Comm., 260 U.S. 48, 43 S.Ct. 51; Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241. (13) Assessment in excess of special benefits is void; it is the taking of property without compensation. Norwood v. Baker, 172 U.S. 269; Hutchison v. Storrie, 45 L.R.A. 289, and note.
Joseph F. Holland, James B. Steiner and Oliver T. Johnson for respondent.
(1) We agree with appellants that the assessment of special benefits in street widenings or in paving are referable to the taxing power, but the assessment of special benefits in street widenings is governed by Sections 4 and 5 of Article 21 of the City Charter, and the following cases have no bearing on said assessments: Fruin-Bambrick Construction Co. v. St. Louis Shovel Co., 211 Mo. 524, 111 S.W. 86; Mudd v. Wehmeyer, 19 S.W.2d 891; McGhee v. Walsh, 249 Mo. 266, 155 S.W. 445. (2) It is true that Article 21 of the City Charter delegates the levying of special benefits in street widenings to commissioners appointed by the circuit court, and to the circuit court upon exceptions filed thereto under Section 7 thereof, but the powers therein delegated are limited by Sections 4, 5, 7 and 8. These powers are not limited by appellants' cases, to-wit: Cornet v. St. Louis County, 240 S.W. 107; St. Louis v. Brinckwirth, 204 Mo. 280, 102 S.W. 1091; Albers v. St. Louis, 268 Mo. 349, 188 S.W. 83; State ex inf. v. Colbert, 273 Mo. 211, 201 S.W. 52. (3) The assessment of special benefits being referable to the taxing power, said assessment of benefits does not derive its authority directly from the Constitution of the State nor particularly from Section 21 of Article 2 thereof. St. Louis v. Senter Commission Co., 336 Mo. 1209, 84 S.W.2d 133; State ex inf. v. Colbert, 273 Mo. 211, 201 S.W. 52. (4) The City of St. Louis, being a city under special charter, and having derived its charter pursuant to and in conformity with Article IX, Sections 16, 17, 20, 21, 23 of the State Constitution, may cause, in proper proceedings, special benefits to be assessed under said Article 21. Mo. Constitution, 1875, Art. IX, Secs. 16, 17, 20, 21, 23; Tremayne v. St. Louis, 320 Mo. 120, 6 S.W.2d 935. (5) The sections of Article 21 of the City Charter contain no provision for an estimate of costs as a basis for the assessment of damages or of benefits in a street widening, nor for paving. The assessments of benefits for paving streets is authorized by Article 22 of the City Charter. Said articles do not in any way, authorize the opening of streets and the paving of the same in one proceeding. They are distinct proceedings. The widening of a street is one step, and the paving is another. City Charter, Arts. 21, 22; St. Louis v. Senter Comm. Co., 336 Mo. 1209, 84 S.W.2d 133; State ex inf. v. Colbert, 273 Mo. 211, 201 S.W. 52; Cornet v. St. Louis County, 240 S.W. 107. (6) The respondent agrees that it must comply with Article 21 of the City Charter in a street widening project. The procedure in this delegation of powers and duties to the condemnation commissioners and to the circuit court is clearly expressed. City Charter, Art. 21. (7) The law guards the rights of property owners but they are also governed by the charter. City Charter, Art. 21. (8) Board of Public Service in recommending a street widening ordinance has no authority to receive or endorse an estimate of any costs thereon or therewith. City Charter, Art. 21; City Charter, Art. 21, Sec. 1. (9) Section 3 of Article 22 prescribes how the estimates of costs may be made in street paving. Section 10 of Article 22 names the kinds of public improvements wherein estimates of costs are required, but said estimates of costs are not required in street widenings. City Charter, Art. 22, Secs. 1, 3, 10. (10) A public work or improvement as used in the condemnation article cannot be confused with public work or improvement as used in the construction article of the Charter without specific provisions therefor. Condemnation proceedings are special statutory proceedings. City Charter, Arts. 21, 22; State v. Butler, 178 Mo. 272, 77 S.W. 560; 1912 Code, City Charter, Art. 6, Secs. 27, 14, 21, 29; Art. 7, Secs. 3, 4; Art. 11, Sec. 2; 29 C.J.S., sec. 209, pp. 1127-8-9; Kansas City v. Marsh Oil Co., 140 Mo. 458, 41 S.W. 943; Hannibal Bridge v. Shaubacker, 49 Mo. 555; Railway Co. v. Swan, 120 Mo. 30, 25 S.W. 534. (11) All evidence as to the recommendations of the City Plan Commission, its plans, outlines for future streets, street extensions, playgrounds and matters about other public improvements, and evidence as to all other matters, was not admissible in this cause, the same having gone to final judgment September 17, 1934. See Authorities under (33)-(37) of this Brief. (12) Such evidence is also inadmissible under writ of error coram nobis. Simms v. Thompson, 291 Mo. 493, 236 S.W. 866, 23 Cyc. 883D; Duesenberg v. Rudolph, 325 Mo. 881, 30 S.W.2d 94; Spotts v. Spotts, 55 S.W.2d 984. (13) The powers of the City Plan Commission are only advisory and its recommendations are not binding on the Board of Public Service and the Board of Aldermen or either Board. State ex rel. Better-Built Homes and Mortgage Co. v. Davis, 302 Mo. 307, 259 S.W. 80; Laws 1921, p. 482, sec. 4; 1936 Code, pp. 55-57. (14) All evidence as introduced by appellants as to effect that their properties, 62 parcels in final judgment was not benefited by the Morgan Street widening, in this cause, the same having gone to final judgment on September 17, 1934. See authorities under (33)-(37) of this Brief. (15) Such evidence is also inadmissible under writ of error coram nobis. Simms v. Thompson, 291 Mo. 493, 236 S.W. 866; 23 Cyc. 883D; Duesenberg v. Rudolph, 325 Mo. 881, 30 S.W.2d 94; Spotts v. Spotts, 55 S.W.2d 984. (16) The assessed valuations as made by the Assessor of the City of St. Louis on the parcels or property, namely, 62 items of the final judgment, for the years 1925, 1934, 1940 and 1921, were not admissible in this cause, the same having gone to final judgment on September 17, 1934. See authorities under (33)-(37) of this Brief: Kansas City G. Ry. Co. v. Haake, 53 S.W.2d 891. (17) Such evidence is also not admissible under writ of error coram nobis. Simms v. Thompson, 291 Mo. 493, 236 S.W. 866; 23 Cyc. 883D; Duesenberg v. Rudolph, 325 Mo. 881, 30 S.W.2d 94; Spotts v. Spotts, 55 S.W.2d 984. (18) The underlying ordinances in the Schopp, McMillan, Hopkins, and Kaime cases were properly repealed by Ordinance No. 32,615. St. Louis v. Dyer, 56 F.2d 842; St. Louis Brewing Assn. v. St. Louis, 168 Mo. 37, 67 S.W. 563; Lester Real Estate Co. v. St. Louis, 170 Mo. 31, 70 S.W. 151. (19) Collateral attacks against the Morgan Street judgment (in certain items thereof) have heretofore been ruled in favor of the City of St. Louis. Eighth Morgan Garage Filling Station v. St. Louis, 119 S.W.2d 201; Central Paving Construction Co. v. Eighth Morgan Garage Filling Station, 159 S.W.2d 660. (20) The underlying four ordinances of the Schopp, McMillan, Hopkins and Kaime cases having been repealed, the City filed the Morgan Street cause within 10 years, pursuant to Ordinance No. 32,615, the same having been recommended to the Board of Aldermen by the Board of Public Service pursuant to petition of the owners of three-fifths of the property to be taken; that said three-fifths petition asked for the establishment of Morgan Street as ordained in Ordinance No. 32,615, hence the proceedings in the Morgan Street cause were regular. City Charter, Art. 21, Secs. 1, 2, 3, 4, 5. (21) Commissioners did not assess benefits for the paving of Morgan Street. They assessed damages and benefits in the widening of Morgan Street. City Charter, Arts. 21, 22; Tremayne v. St. Louis, 320 Mo. 120, 6 S.W.2d 935; Schwab v. St. Louis, 274 S.W. 1058. (22) The prayer in the condemnation petition followed the City Charter, Article 21. City Charter, Art. 21. (23) The commissioners were not required to assess benefits in the Morgan Street widening on the theory that said benefits included the paving costs. City Charter, Art. 21, Secs. 4, 5; City Charter, Art. 22, Secs. 1, 3, 10. (24) The Morgan Street benefits are not void because of any act or acts of commissioners; they followed Article 21 of the Charter. City Charter, Arts. 21, 22. (25) The City Charter defines the type of benefits to be assessed in street widenings, and the City Plan Commission has no authority therein. City Charter, Art. 21, Secs. 4, 5; State ex rel. Better-Built Homes Mortgage Co. v. Davis, 302 Mo. 307, 259 S.W.2d 80. (26) The benefits in the Morgan Street widening were assessed under authority of the City Charter, Article 21, and not pursuant to the street widening Ordinance No. 32,615. City Charter, Art. 21, Secs. 4, 5; Wabash Railway Co. v. St. Louis, 64 F.2d 921. (27) The commissioners did not assess benefits in the widening of Morgan Street under Article 22 of the Charter, and they were not so required. City Charter, Art. 22, Secs. 1, 3, 10; Wabash Railway Co. v. St. Louis, 64 F.2d 921; City Charter, Art. 21. (28) The property owners in the benefit or taxing district, whose property was assessed benefits, received notice by publication of the benefit or taxing district as required by law. City Charter, Art. 21, Secs. 4, 5, 6, 8; St. Louis v. Calhoun, 222 Mo. 44, 120 S.W. 1152; St. Louis v. Koch, 169 Mo. 587; Schwab v. St. Louis, 274 S.W. 1058; St. Louis v. Senter Comm. Co., 336 Mo. 1209, 84 S.W.2d 133, 85 S.W.2d 21; St. Louis v. Brinckwirth, 204 Mo. 280, 102 S.W. 1091; Albers v. St. Louis, 268 Mo. 349, 188 S.W. 83. (29) The condemnation commissioners ascertain values and damages and assess benefits, that is, increment in value, and therefore, said commissioners are a fact finding body, under the powers delegated them by the Charter, and not judicial. Houck v. Drainage District, 248 Mo. 373, 154 S.W. 793; Schwab v. St. Louis, 310 Mo. 116, 274 S.W. 1058; Birmingham Drain. Dist. v. C., B. Q. Ry. Co., 274 Mo. 140, 202 S.W. 404; St. Louis v. Buss, 159 Mo. 9, 59 S.W. 969; St. Louis v. Brinckwirth, 204 Mo. 280, 102 S.W. 1091. (30) Article 21 of the Charter does not require an estimate of cost in a street widening before commissioners are authorized to assess benefits in a street widening. In a street opening commissioners assess damages or values and benefits or increment in value. Such duties require judgment and discretion and not arbitrary estimates of costs or values. City Charter, Arts. 21, 22; St. Louis, etc., Ry. Co. v. Brick Co., 198 Mo. 698; 2 Nichols on Eminent Domain, sec. 448, p. 1175; In re widening of Michigan Avenue, 280 Mich. 539, 273 N.W. 798. (31) St. Louis procedure in condemnation is not unconstitutional, but is in harmony therewith. Tremayne v. St. Louis, 320 Mo. 120, 6 S.W.2d 935; Kansas City v. Field, 99 Mo. 352, 12 S.W. 802; State ex rel. v. Lucas, 317 Mo. 255, 263, 296 S.W. 781. (32) The Franklin Bank action is not like the four dismissed, or like any of them, first, because, between Theresa Avenue and Grand Boulevard, it abandoned the then proposed widening along the southern line of Morgan Street and located its own widening along the northern line, and also increased the area of the latter 84 per cent over the area of the former; and, second, because west of Grand Boulevard, it abandoned the then proposed cut-off abutting on that boulevard, for access to Delmar Boulevard and opened an 1168-foot length of entirely new street to Spring Avenue, across which it expanded into an open area affording two cut-off accesses to Delmar Boulevard and Enright Avenue. If the Franklin Bank action were a like action, that fact would be offset by the three-fifths petition presented to the Board of Public Service prior to Board's recommendation of ordinance 32,615. And since the Franklin Bank action is an unlike action, the said petition is mere surplusage. City Charter, Art. 21, Sec. 10. (33) The Morgan Street judgment is not subject to attack. The findings of facts all incorporated therein dispels the idea, and makes the judgment conclusive and binding. A final judgment imports absolute verity. Potter v. Whitten, 161 Mo. App. 118, 142 S.W. 453; Aufderheide v. Aufderheide, 112 S.W.2d 119; State ex rel. v. Producers Gravel Co., 341 Mo. 1106, 111 S.W.2d 521; Tremayne v. St. Louis, 320 Mo. 120, 6 S.W.2d 935; Beddecke v. Ziegenhein, 122 Mo. 239; St. Louis v. Ranken, 96 Mo. 497; Vrana v. St. Louis, 164 Mo. 146, 64 S.W. 180; Duesenberg v. Rudolph, 325 Mo. 881, 30 S.W.2d 94; Central Paving Construction Co. v. Eighth Morgan Garage Filling Station, 159 S.W.2d 660. (34) All defendants, in the Morgan street widening cause, including parties and owners in the benefit or taxing district (which included appellants herein), were duly notified and served with process. City Charter, Art. 21, Secs. 1, 2, 4, 5; Eighth Morgan Garage Filling Station v. City of St. Louis, 119 S.W.2d 202; Central Paving Construction Co. v. Eighth Morgan Garage Filling Station, 159 S.W.2d 660; St. Louis v. Senter Comm. Co., 336 Mo. 1209, 84 S.W.2d 133. (35) If the respondent is correct that the one action is unlike the four dismissed actions, then the presentation of the three-fifths petition was an unnecessary act and the petition falls out of the case as a matter of law. City Charter, Art. 21, Sec. 10. (36) However, since the Board of Public Service is required to recommend street widening ordinances, it is necessary in proper cases that the three-fifths petition be presented to said Board before it can act. City Charter, Art. 21, Sec. 10; American Tobacco Co. v. Mo. Pac. Ry. Co., 247 Mo. 374, 157 S.W. 502. (37) It is elementary that the final judgment settles all matters and evidence presented in said cause or which might have been presented. Simms v. Thompson, 291 Mo. 493, 236 S.W. 866, 881; Duesenberg v. Rudolph, 325 Mo. 881, 30 S.W.2d 94; Spotts v. Spotts, 55 S.W.2d 984.
The movants, twenty-one owners or groups of owners of tracts of land abutting Morgan Street in St. Louis, appeal from a judgment of the circuit court of the City of St. Louis overruling their two motions in the above cause, one being entitled "Motion to Set Aside and Vacate Judgment," and the other "Motion to Set Aside and Recall Judgment or to Modify Same." The main action was a condemnation proceeding brought by the City to widen Morgan Street. The final judgment therein was rendered in the same court on September 17, 1934. The appellants' two motions were not filed until nearly seven years later, on August 6, 1941. At the hearing thereon it introduced evidence in support thereof.
The general rule is that a judgment becomes final on the expiration of the term at which it was rendered; and that the trial court thereafter has no power to modify or vacate it except upon a proper direct attack. Furthermore, when such an attack is made by motion and evidence is required to support it, the motion is treated as being in the nature of a writ of error coram nobis, as to which there are legal restrictions on the issues that may be raised and the scope of the evidence that may be introduced. The respondent city invokes these doctrines, and also defends the original condemnation proceeding on its merits. The appellants do not dispute the foregoing as abstract propositions of law, but assert their motions challenge the jurisdictional validity of the judgment — a question that can be raised any time.
It is difficult to compress all of appellants' contentions into a single summarization at the outset. We shall discuss their legal theories in order, later. The factual basis on which most of them rest is as follows. For many years before the original condemnation suit was brought and also before the present St. Louis charter was adopted, the City Plan Commission, the Board of Public Service, the Board of Aldermen, and corresponding predecessor bodies, had been endeavoring to work out a comprehensive, long range plan for the establishment of arterial highways radiating from the business district of St. Louis, with cross-highways feeding thereinto. This would require straighter, broader, well paved streets, which would speed up traffic and increase its volume. Such a street system, appellants say, would rush motor traffic by intermediate locations on the highways, but would work to the advantage of the city as a whole.
For the establishment of the traffic plan it would be necessary not only to determine the course, width and grade of these highways and to acquire the necessary land, but also actually to install them, which would include grading, paving, guttering, curbing and drainage. The mere acquisition of the right of way by condemnation would not benefit, indeed would actually damage, abutting and neighboring landowners unless the construction work were done. In other words no special, local and peculiar benefits could accrue to abutting and neighboring property owners unless and until the whole project on each such street were completed.
With this background the present charter of St. Louis was adopted in 1914 under sanction of Article IX of the State Constitution; and three years later a "Major Street Plan" was recommended by the Board of Public Service and approved by the Board of Aldermen. With subsequent modifications, it included Morgan Street as one of the east and west arterial highways from Third Street to Delmar Boulevard and Enright Avenue, a distance of 26 blocks. But the charter does not provide for a single proceeding in which all legal steps may be taken that are necessary to the completion of a given street project as a whole. Article XXI, ostensively at least, covers only the condemnation proceeding which must be resorted to in acquiring right of way and changing established grades; and in assessing damages and special benefits springing therefrom. Article XXII similarly covers the paving and other construction work necessary to complete the contemplated improvement as a whole. An the provisions of the two Articles are different.
Sec. 1 of Article XXI says such condemnation proceedings shall be initiated by an ordinance recommended by the Board of Public Service. It refers to" any public improvement or work which will damage private property" as one of the public uses for which land may be condemned; also to the "opening, establishment or widening" of highways. By express mention thereof it further contemplates that such proceedings may apply to a "major highway or [841] traffic artery." Once it refers to the objective of the condemnation as a "public improvement." A condemnation suit based on the ordinance is instituted by the city counsellor and the defendant property owners are personally served with summons. Any that are unknown or nonresidents are served by publication.
This and all following italics in quotations are ours unless otherwise noted.
The Article does not require a petition by the landowners as a prerequisite to the passage of such an ordinance initially, though later Section 10 provides that if the city shall dismiss any condemnation proceedings (based on such ordinance) "for any reason other than defect in the proceedings, it shall not begin a like action within ten years after such dismissal, unless, upon the petition of the owners of three-fifths (3/5) of the property proposed to be taken, . . . measured by frontage upon the proposed improvement, or upon condition that the city shall pay all of the damages assessed therein." Neither does it give the landowners the right of remonstrance. No advance estimate of the cost of improvement is called for, though Sec. 1A permits the Board of Aldermen to call upon the Board of Public Service for an estimate of the total damages to be occasioned by said public work or improvement, an outline of a suggested benefit district, and an estimate of the probable aggregate benefits to be assessed therein.
Sec. 3 of the same Article XXI provides for a permanent board of commissioners appointed by the judges of the circuit court, who (with specified exceptions) shall assess all benefits and damages in condemnation proceedings, except that the landowner may demand a jury trial as to his damages. Sec. 4 says that in the condemnation of property for "highways . . . or the making of other public work or improvements" the commissioners shall ascertain the actual value of the property proposed to be taken and the actual damage thereto; and that for the payment of such damages the commissioners shall separately assess against all lands especially benefited by the proposed public work or improvement" the amount of such benefits.
Under Sec. 5 the commissioners fix a benefit or taxing district of which ten days public notice is given by advertisement. They thereupon hear evidence submitted by interested parties; assess the damages; and make a detailed, verified written report to the circuit court. Sec. 7 provides interested parties may file exceptions within 20 days, and upon such exceptions the court shall review the report, "and may order, on cause shown, a new assignment by said commission," or different commissioners, "or make such other orders thereon as justice may require." The section then goes on to say: "The court . . . may itself assess benefits anew." Next, Sec. 8 further provides: "The court upon approving the commissioners' report shall render final judgment thereon," and the landowners may appeal therefrom. In the instant case the appellants did not file exceptions to the report of commissioners, or appeal.
Turning now to Article XXII. Sec. 1 provides: "No ordinance for public work or improvements of any kind, or repairs thereof, shall be adopted, unless prepared and recommended by the board of public service with an estimate of the cost endorsed thereon." Sec. 2 says such ordinances shall authorize the particular work or improvement, specify generally the character and extent thereof and the material to be used; and that it shall be done in accordance with detailed plans and specifications finally adopted and approved by the Board of Public Service before advertisement for bids. Sec. 3 provides that before the Board of Public Service shall recommend any ordinance for any public work or improvement including the " construction or other improvement of any public highway . . . to be paid for . . . by special assessment," it (the Board of Public Service) shall lay out or shall have laid out, a proposed benefit or taxing district.
The Board of Public Service then holds a public hearing, as to which two weeks published notice must be given, to consider the proposed district and the boundaries thereof, and also the projected work or improvement. The notice includes an estimate of the cost of the work or improvement, which may cover several classes of (alternate) materials. At the hearing all interested parties may be heard both on the boundaries of the benefit district and "all other matters connected with the work proposed," which necessarily would include the extent and character of the improvement and the question whether it should be constructed at all. The board announces its determination within three days and during the next eighteen days the owners of the greater area of land in the district may file a written remonstrance either against the benefit district as laid out by the Board, or against the proposed work or improvement. [842] At the next meeting the Board may either rescind its action or proceed by transmitting the improvement ordinance and remonstrance to the Board of Aldermen. No appeal is allowed. Section 4 provides that all public work, other than emergency work or repairs, shall be let by bids after advertisement therefor, except that any public work or improvement to be paid for by special assessment may be done by the Board of Public Service as provided by ordinance.
The remainder of Article XXII seems immaterial to this controversy. Sec. 10 provides in detail that such improvement ordinances may cover grading, paving, curbing and guttering, and require the payment of the cost thereof by special assessment, as therein specified, And Sec. 18 authorizes the issuance of tax bills.
We now come to appellants' legal contentions. Their main premise is that logic, and all the historical evidence introduced, show the framers of the St. Louis Charter in using the terms "public improvement" in Secs. 1, 1A and 4 of Art. XXI, and in Secs. 1, 2, 3 and 4 of Art. XXII intended to refer to the same thing, namely, the completed improvement. Appellants say common sense compels that conclusion because the acquisition of right of way for the widening of an existing street in a congested city with a view to converting it into an arterial highway, is only the first step in the process of improving it; that it would be a damage instead of a benefit to encroach on the frontage of abutting property, perhaps destroying part of buildings thereon, to get additional space for the widened street, unless the project were completed by using the space for paving, guttering, curbing, sewer and surface water outlets, and the like; that otherwise the money paid out in damages would be wasted; and the exaction of it from landowners by special benefit assessments would be wholly uncompensated. Appellants presented the testimony of three qualified experts, including one who had served on the Board of Public Service and its predecessor body for 20 years, all of whom agreed there could be no special benefits from the mere acquisition of the land. Some of them further testified there had been no estimate of the cost of the completed improvement when the benefit assessments in condemnation proceeding were made by the commissioners.
Further appellants point out that this court has held the special benefits flow from the completed improvement, as in City of St. Louis v. Senter Comm. Co., 336 Mo. 1209, 1221-2, 84 S.W.2d 133, 138(1, 2) where it was said: "Assessing benefits is the determination of the proportion to be paid by property owners of the cost of making a public improvement (of which cost, damages is one item) . . . Benefits are based on estimates of the effect of improvements, at the time of completion, to increase the value of the property (usually over what it was when the proceedings were begun) and not upon the immediate effect of the mere proposal to make them." On that point we agree with appellants that the special benefits which may be considered are those arising from the improvement and the use for which the land is to be condemned. 20 C.J., sec. 258, p. 821, 29 C.J.S., secs. 182, 183, p. 1063; 18 Am. Jur., sec. 297, p. 942; and many Missouri cases cited in 11 West's Mo. Digest, "Eminent Domain," secs. 145, 146, pp. 446-451.
Next appellants argue that since the condemnation proceeding contemplates the completion of the whole project; and since the construction of the paving is an integral part thereof; therefore the procedural requirements of both Articles XXI and XXII must be followed before the project can be brought to the point even of potential consummation so that special benefits may be assessed. In a reply brief appellants explain this does not mean that all steps must be taken in one proceeding; but only that the construction project under Article XXII must have been prosecuted either with the other, or separately and contemporaneously, to such a stage that the nature, extent and cost thereof, and the attitude of property owners, may be known. That, we interpolate, does not harmonize with several of appellants' contentions still urged on this appeal; but we go on.
The foregoing is appellants' major thesis in attacking the jurisdictional validity of the final judgment in the original condemnation suit. They concede that the condemnation proceeding followed Article XXI of the Charter governing such proceedings (except in respects to be discussed later.) But they assert it is void because it failed to comply also with the requirements of Article XXII covering construction work — all this on the theory that the condemnation and the construction were parts of a single project. Two specific objections are urged. The first is that the condemnation ordinance, No. 32615, was not prepared, as well as recommended, by the Board of [843] Public Service, and did not have endorsed on it an estimate of the cost of the contemplated construction work, also prepared by the same Board, all as required by Sec. 1, Art. XXII. These requirements, appellants contend, are jurisdictional "checks" or restraints on the power of the legislative branch of the city government (the Board of Aldermen) and the courts, imposed by the city charter and exercised through the Board of Public Service as an instrument, like the checks imposed on our General Assembly by the State Constitution.
Second, and on the same theory, appellants contend the condemnation proceeding was void because the only benefit district laid out was the one fixed by the condemnation commissioners after a hearing on ten days published notice, as required by Sec. 5 of Art. XXI of the charter governing condemnations; whereas Sec. 3 of Art. XXII governing construction work, requires a proposed benefit district to be laid out by the Board of Public Service, and a hearing to be held by that Board after two weeks published notice, at which the property owners may oppose both the extent of the district and the kind of construction work, or whether it shall be done at all; and after which they may remonstrate if the Board's decision does not coincide with their views. Appellants say this is another check on both the legislative branch and the courts by the people, in this instance the interested landowners. And they insist that requirement should have been followed in this case before special benefits could be assessed either for the condemnation or the construction.
We think appellants have misconstrued the charter. A violent distortion of its language is required to make it mean that the procedural requirements of Article XXII must be followed in condemnation proceedings under Article XXI. It is true that the same expression "public work and improvement" appears frequently in both Articles; but in our opinion it refers in each Article to the kind of improvement contemplated by that Article. Thus, in Article XXI the expression is several times limited either expressly or by implication to improvements where property is taken or damaged; whereas Sec. 1 of Article XXII speaks of "public work or improvements of any kind, or repairs thereof." Sec. 2 says the ordinance authorizing the particular work or improvement shall specify "the material to be used therein." Under Sec. 3, the kind of construction and the materials to be used are questions submitted to the landowners at the hearing before the Board of Public Service. And Sections 2 and 4 provide that generally contracts for the construction of the public work shall be let on bids after advertisement. All this is entirely out of harmony with the idea that the public improvement spoken of in Article XXII applies to the condemnation of land. No repairs, materials or advertisement for bids would or could be involved in such a proceeding; and the very differences in estimates, benefit districts, hearings and other proceedings under the two Articles, which appellants have stressed, show that they are separate and have different objectives.
Considering next the suggestion in appellants' reply brief that the requirements of the charter would have been satisfied if the procedures under the two Articles had been prosecuted separately but contemporaneously, so the landowners and condemnation commissioners would know about the character and cost of the paving improvement before the special benefits were assessed. The evidence bearing on this point is very murky. It discloses there had been no estimate of the cost of the paving improvement when the commissioners made their benefit assessments. And one witness further testified the commissioners were furnished with maps of the widening project but received no advice as to how to proceed, and believed they were concerned with the condemnation alone. That also was the position taken by the respondent city at the trial and is on this appeal.
But whether or not full record information about the paving improvement and cost was available to the landowners when the circuit court later reviewed the benefit assessments in condemnation, the record does not show. And this review proceeding, as has been held, was essentially a trial de novo. The circuit court "was not concerned as to whether the commissioners followed erroneous methods, or took into consideration improper elements, in making the assessment which they made." City of St. Louis v. Calvary Central Ass'n, 329 Mo. 1172, 1174, 48 S.W.2d 938(2); City of St. Louis v. Schopp, 325 Mo. 480, 486, 30 S.W.2d 733, 735(7). The holding in this Schopp case was questioned in Wabash Ry. Co. v. City of St. Louis, 64 F.2d 921, 924(3) on the point [844] whether the report of the condemnation commissioners has substantial evidentiary weight in the subsequent review by the circuit court; and on that point the view of the Federal court has been sustained by our later cases growing out of this same Morgan street project. But if it appears that the commissioners arrived at their conclusions as to the amount of benefits on a wrong legal theory, it is obvious the circuit court may for that reason disregard them, City of St. Louis v. Rossi, 333 Mo. 1092, 1107 (10), 64 S.W.2d 600, 607 (14, 15); and that the landowners have full opportunity in the review proceeding to correct such errors.
City of St. Louis v. Franklin Bank, 341 Mo. 913, 110 S.W.2d 734; Id. (Mo. Div. 1), 107 S.W.2d 3; Id., 340 Mo. 383, 100 S.W.2d 924.
Appellants allege in one of their two motions here that they did not file exceptions and participate in the review, on the advice of counsel based on the theory that they had not been served with notice of said proceedings or made parties thereto; also for the reason that they then had pending an injunction suit attacking said assessments, which was later decided adversely to them because the action was prematurely brought. Eighth Morgan Garage Filling Station v. City of St. Louis, 342 Mo. 874, 119 S.W.2d 202. Incidentally, it is to be noted that this decision held no enforceable special benefits existed until final judgment in condemnation was rendered on September 17, 1934.
And we do know the commissioners' report of the assessments was made on December 22, 1930; that supplemental reports were filed in February and September, 1932; and that the final judgment was not rendered until two years later, as just stated. It further appears from the record in Central Paving Const. Co. v. Eighth Morgan Garage Filling Station (Mo. Div. 2), 159 S.W.2d 660 that five ordinances for paving construction work on Morgan Street were passed by the Board of Aldermen on dates not shown, but early enough for the work covered by one of them to be completed and a taxbill issued on January 10, 1934, nine months before the final condemnation judgment was rendered.
But aside from the foregoing, there are two other overshadowing questions: (1) whether the law required an estimate of the cost of the paving improvement, and the plans and specifications therefor, to be made and filed in the construction proceeding as a prerequisite to the assessment of benefits in the condemnation proceeding; (2) and if the law did so require and they were not filed, was it an irregularity affecting the right and power of the circuit court to render the final judgment in the latter proceeding, such as may now be utilized by appellants in challenging that judgment by motion in the nature of a writ of coram nobis.
On the first question, we have already held, there is nothing in either Article XXI or Article XXII of the St. Louis charter making such a requirement. As regards the general law, most condemnations are conducted under the eminent domain act, Article 2, Chapter 8, R.S. 1939, id., Mo., R.S.A., which is applicable to railroads and public utilities, and also to drainage districts and the State Highway Department. In drainage districts the construction costs are paid by the landowners through special benefit assessments. But more often that outlay is borne by the condemnor, as in the case of the Highway Department and private corporations. Under the St. Louis charter part of the cost may be charged to the city.
In all such condemnation proceedings special benefits may be assessed; and there must, of course, be advance plans of some kind to enable the condemnor to determine what land shall be appropriated. Further, the petitioner in the proceeding must show the public use for which the land is to be taken, describe it, and set forth "the general directions" of the road. Sec. 1504, R.S. 1939, Mo., R.S.A., sec. 1504. But we know of no statutory or legal requirement that the plans, specifications and estimates showing the nature and cost of the construction improvement must be filed in advance before special benefits can be assessed. Certainly that is not true of condemnations by private corporations; and the principle should be the same there as here. For the argument is that such data is requisite to the court's determination of the condemnation benefits, as showing: the nature and cost of the contemplated improvement; whether it will be constructed; and what influence it will have on the market value of the land claimed to be benefited. In our opinion this is a matter of evidence not of jurisdictional procedure.
In Kansas City v. Baird, 98 Mo. 215, 219, 11 S.W. 243, 244(3), a street widening [845] condemnation proceeding, this court said:
"Further complaint is made because the court refused to instruct the jury that if the street, when opened, would be impassable for travel and use, then the jury should assess no benefits to adjoining land. The evidence does show that the street passes over a rough and broken country, and that if no work is done upon it, when opened, it will be useless, but we are at a loss to see what that has to do with the validity of this condemnation. There is no evidence that the street cannot be made passable, and the very object of this proceeding is, that the city may acquire the property, and then bring the street to a reasonable grade."
So, also, in State ex inf. Killam v. Colbert, 273 Mo. 198, 215, 201 S.W. 52, 57, a case cited by appellants, this court held the county court had power to determine at the time of the formation of a special road district that the land included therein would be benefited thereby. In so deciding the opinion said:
" Of course, the mere laying out of the district, without more, would not benefit anybody's lands. It is not likely that the county court would ever find the 'public good' required such purposeless action. In the very nature of a case, when a district is formed it is formed for the purpose of constructing some contemplated road or roads, and in such case the county court probably has information as to the location and extent of the road or roads in contemplation when the petition is presented, otherwise how could it determine that the public good required the formation of the district?"
Our second italics in this quotation show the Baird case recognized the principle that the county court could rely on unrecorded information it had concerning the nature of the contemplated improvement. In fact the opinion presumed the court had that information, or treated it as a necessary inference; thereby showing it regarded the facts as mere evidence not involving any jurisdictional procedure. Appellants stress the part of the quotation first italicized, and distinguish this Baird case on the ground that the county court there was only making a preliminary determination of abstract special benefits, without fixing the monetary amount thereof.
They assert an entirely different question is presented when the amounts of special benefits are assessd against particular tracts in a benefit district, based on the estimated effect of the contemplated improvement. On that point they refer again to the Senter case, supra, 336 Mo. l.c. 1222(2), 84 S.W.2d l.c. 138(2), which says such benefits cannot be based "upon the immediate effect of the mere proposal to make them." The Senter case, in turn, cites 44 C.J., sec. 2987, p. 586, which states that special benefit assessments "cannot be legally predicated upon future action of the public authorities or future legislation; and hence, where property cannot be benefited by a proposed improvement unless subsequent work is done for which no provision is made, the property cannot be specially assessed."
Ten Illinois cases, one from Washington and one from New Jersey are cited to this text from Corpus Juris. We list some of these decisions in the margin. The Illinois cases support the text, several of them saying in substance that no special benefits can be assessed in a condemnation proceeding in anticipation of the construction of a municipal improvement unless the record shows provision therefor has already been made by a valid ordinance. But all these cases were appeals and it appears that in all of them the objection had been made below in the condemnation proceeding. And the Clear Creek case further shows these cases are not reasoned on the theory that such prior municipal legislation is procedurally or jurisdictionally necessary, but only on the theory that otherwise the evidence would be too speculative or conjectural. The Marginal case from Washington does not go as far as the Illinois cases, saying only that the hypothetical public improvement there, on faith of which the benefit assessment was partly based, was not even "planned, contemplated or projected at the present time . . .; nor is there any assumption or assurance thereof in the reasonably near future." This case also was ruled on the [846] theory that the benefits were speculative, as was the New Jersey case. It would seem the Illinois cases are not in harmony, at least in principle, with some of the decisions in this state.
Harmon v. Village of Arthur, 309 Ill. 95, 100, 140 N.E. 53; Clear Creek Drain. Dist. v. St. L., I.M. S. Ry., 264 Ill. 640, 643-5, 106 N.E. 490; City of Chicago v. Kemp, 240 Ill. 56, 58, 88 N.E. 284; City of Waukegan v. Burnett, 234 Ill. 460, 461, 84 N.E. 1061; Title Guarantee Trust Co. v. Chicago, 162 Ill. 505, 508, 44 N.E. 832; Washington Ice Co. v. Chicago, 147 Ill. 327, 331, 35 N.E. 378, 37 Am. St. Rep. 222; In re West Marginal Way, 112 Wn. 418, 421-2, 192 P. 961; State, Kellogg, Pros., v. Elizabeth, 40 N.J. Law, 274, 276-7.
McGhee v. Walsh, 249 Mo. 266, 285-287, 155 S.W. 445, 450(4); Platte City Special Road Dist. v. Couch, 320 Mo. 489, 497(4), 8 S.W.2d 1003, 1007(5).
Returning to the second question stated in the seventh preceding paragraph — that is whether the failure to file an estimate of the cost of the paving improvement and of the plans and specifications therefor, even if legally required, was an irregularity such as can be raised by appellants' motions in the nature of writs of coram nobis. We think not, since we have reached the conclusion stated above, that the facts about the nature, cost and certainty of the construction improvement are merely evidentiary and not procedural in any jurisdictional sense. A writ of coram nobis is not available for the correction of errors of law arising on the face of the record. And if we were to grant arguendo that the filing of an estimate of the cost of the paving improvement and the plans and specifications therefor was legally essential, as appellants contend, the omission to file them would be a fact patent on the record, which could not be raised by coram nobis.
The writ lies only for errors of fact; and not by any means every fact that would make the judgment erroneous. If that were true there would be no need for appeals and writs of error and for statutes setting a time limit on them. The facts must be such as affect the power and right of the court to render the particular judgment — facts which, if known, would have prevented its rendition. In a sense they must be directed against what would have been either a want or abuse of jurisdiction — at least, nor mere error — if the facts had been known to the court. Familiar examples are when the judgment was rendered against a decedent, an infant or insane person. And the further rule is that if the facts were known to the complaining party at or before the trial, or might have been discovered by the exercise of reasonable diligence, the writ cannot be invoked. Certainly that barrier restrains appellants here, regarding matters which either were or were not of record in the office of the Board of Public Service in St. Louis. Present counsel were not in the case at that time. Citations on the legal propositions stated in this and the last paragraph are abundant.
34 C.J., secs. 602, 605-615, pp. 392-398; Ex parte Dusenberg, 325 Mo. 881, 885, 30 S.W.2d 94, 95(2); Simms v. Thompson, 291 Mo. 493, 515, 236 S.W. 876, 883; Jeude v. Simms, 258 Mo. 26, 40, 166 S.W. 1048, 1052(4); State v. Stanley, 225 Mo. 525, 531, 125 S.W. 475, 476(1); Townsend v. Boatmen's Nat'l Bank (Mo. App.), 148 S.W.2d 85, 87(5).
Appellants' second motion — to recall or modify the judgment below — attempts to raise constitutional questions. Paragraph 5 says the benefits assessed were general, not special. Paragraph 8 alleges they were assessed on a front foot basis without considering the area of the tracts. Paragraph 9 asserts they were not equal and uniform, but discriminatory and arbitrary, thereby depriving them of due process. In each instance the assignment alleges the facts were not known to the trial court, and ends with the pleaded conclusion "in violation of the" State and/or Federal Constitutions. There are several reasons why these questions cannot be considered. First, a constitutional question cannot be raised any more than any other, by a writ of coram nobis, unless it be the kind of question stated in the last paragraph. Second, it affirmatively appears these questions were not raised in the trial court (that is, they were not timely raised, for the motion says the trial court did not know about them). Fourth, appellants' main brief does not appeal to the Constitution either in its Assignments of Error or Points and Authorities. In the Argument, the brief makes general references to the Constitution in support of contentions, but cites no section or article. The first specific reference to any section thereof is in appellants' Reply Brief; and that one only argues that if a certain provision of the charter had the meaning the respondent city attributes to it, it would be out of harmony with the specified section. We need not cite authority on the insufficiency of these assignments.
So far we have been discussing appellants' contentions that the provisions of Articles XXI and XXII of the St. Louis charter are interdependent and must be followed together or contemporaneously in condemnation proceedings for street improvements. Going no further than necessary, we rule these contentions against [847] appellants in view of the manner in which they are raised — by a motion in the nature of a writ of coram nobis.
Appellants made two further assignments which are based on Article XXI of the charter alone. The first is tendered by their first motion — to set aside and vacate the condemnation judgment — and invokes Sec. 10 of that Article. The section, as will be remembered, provides that if the City shall dismiss any condemnation proceeding for any reason other than defect in procedure, it shall not begin a like action within ten years thereafter unless upon the petition of the owners of three-fifths of the property to be taken, or unless the city shall pay the damages assessed therein. The city did begin the condemnation proceeding under Ordinance No. 32615, involved here, within ten years after having dismissed for reasons other than defects in procedure, four prior condemnation proceedings respectively under four several street widening ordinances covering parts of Morgan Street, and in said Ordinance 32615 repealed those ordinances.
Appellants charge in their motion that the condemnation proceeding based on the new Ordinance 32615 was "like and similar" to the four actions dismissed. In their brief they assert the circuit court was "bound to take judicial notice" of that fact before entering the condemnation judgment. But appellants have not explained wherein the old ordinances and the new were alike, although they put them in evidence; and say under the Major Street Plan they were always considered one project. We, ourselves, observe their general purport was to widen Morgan Street from 60 to 80 feet throughout their coverage. On the other hand, the city's brief states that of these four ordinances one covered 2 blocks; another 10 blocks; the third 10 blocks; and the fourth provided for a triangular cut-off immediately west of Grand Avenue to Delmar Boulevard, making 22 blocks in all. The superseding Ordinance 32615 covers 26 blocks and provides for an elaborate double cut-off at the western terminus reaching 1168 feet further west than before, taking 2.325 additional acres and leading to both Delmar Boulevard and Enright Avenue. Furthermore, it added 9200 square feet on the north side of that part of Morgan Street covered by one of the old ordinances, when the added width was to have been on the south side before. The city's brief also states there are differences in the other two ordinances. We are not prepared to say the consolidation of all these projects into one, with added length and added width on a different side of the street in some places, and with an expansive western terminus, was not a substantial change.
Appellants' motion further alleges no "legal" petition for the new Ordinance 32615 was signed by three-fifths of the property owners, as was necessary under Sec. 10, Art. XXI if the new ordinance was "like" the old ones. But in their brief here appellants have abandoned that contention, and charge only that there was no allegation in the condemnation petition that the property owners had signed such a petition. That is true. There was none, though the judgment finds such a petition was signed. Appellants say that is not enough; that the allegation in the condemnation petition was jurisdictional. We need not go into that. It is not an assignment of error based on new facts, but a pure question of law based on patent record facts, which cannot be raised by a motion in the nature of a writ of coram nobis. So we overrule the assignment of error.
The final group of assignments are as follows: that the levy of special benefits was under the taxing power; that the circuit court in reviewing the report of commissioners and finally fixing the assessments, acted in a legislative capacity; that the City of St. Louis is without power to order the circuit court, acting in its judicial capacity, to give the findings of the condemnation commissioners the force and effect of a judgment; that the provisions of Secs. 4, 5, 7 and 8 of Article XXI, specifying the duties of the commissioners, and providing for the review proceeding in the circuit court, and final judgment after approval of the assessments, constitute an invalid delegation of legislative power because they fix no standard, measure or policy by which the delegatee can ascertain or determine the amount of the special benefits; that the benefits assessed were general, not local or special.
None of these assignments, except possibly the last one, are in anywise dependent on new facts presented in the hearing on the motion. They do not tender issues that can be raised by a motion in the nature of a writ of coram nobis; but simply interpose questions of charter construction or suggest constitutional questions. Nevertheless we comment on them very briefly. It [848] seems to us practically all of these contentions were answered in Schwab v. City of St. Louis, 310 Mo. 116, 274 S.W. 1058. Even the opinion in City of St. Louis v. Brinckwirth, 204 Mo. 280, 297, 102 S.W. 1091, 1096, which appellants stress and quote extensively, decided the circuit court could render final judgment approving benefit assessments under the old St. Louis charter, as to the amount of the assessments, though it held no execution could issue thereon.
On the contention that the named sections of Article XXI are invalid because they fail to furnish any standard for the measurement of special benefits. The general eminent domain act, supra, contains no provision of that sort at all; Sec. 1506, R.S. 1939, Mo., R.S.A., sec. 1506, provides only for the assessment of damages. Yet special benefits have been deducted from damages under it for years. The act merely involves estimating the effect of the improvement on the market value of the land; and the power is not so broad as to require definition. On the point that the benefits assessed against appellants were general, not special or local, we need only say the fact that Morgan Street is included in the Major Street Plan does not mean there are or can be no special benefits to abutting and neighboring landowners.
We find no error in the record proper and the judgments and orders of the circuit court overruling appellants' two motions are affirmed. All concur except Gantt, J., absent.