ST. LOUIS PUBLIC LIBRARY
PREMIER LIBRARY SOURCES
HOME KIDZONE CATALOG SEARCH BULLET



BULLET St. Louis City Charter Article XXI Eminent Domain*

St. Louis City Charter has been converted to electronic format by the staff of the St. Louis Public Library. This electronic version has been done for the interest and convenience of the user. These are unofficial versions and should be used as unofficial copies.

Official printed copies of St. Louis Missouri City Charter may be obtained from the Register's Office at the St. Louis City Hall.


Article XXI
Eminent Domain*

*Constitution:

Article I 27 Acquisition of excess property by eminent domain

Article I 28 Limitation on taking of private property for private use

V.A.M.S.:

Ch. 88 Public works and special assessments therefor--condemnation

Ch. 523 Condemnation proceedings

82.790 Certain cities may condemn property outside city

City Counselor Ops.: 7910, 8022, 8080, 8675, 8712, 10365

Cases:

When the procedures in this article are followed the municipality is not required to bring subsequent suits to enforce the collection of benefit assessments. Schwab v. City of St. Louis, 274 S.W. 1058, 310 Mo. 116 (1925).

The various interests in a distinct piece of property are not valued separately. State v. Hall, 28 S.W. 2d 80, 325 Mo. 165 (1930).

The city cannot obtain an easement for a street crossing railroad tracks without the public service commission's order. City of St. Louis v. St. Louis-San Francisco Ry. Co., 50 S.W. 2d 637, 330 Mo. 499 (1932).

Delay in condemnation proceedings does not constitute a taking of property. State v. Beck, 63 S.W. 2d 814, 333 Mo. 1118 (1933).

The procedural requirements of article XXII do not have to be followed in a condemnation proceeding under article XXI. City of St. Louis v. Franklin Bank, 173 S.W. 2d 837, 351 Mo. 688 (1943).

The expression "public work and improvement" is limited to improvements where property is taken or damaged. City of St. Louis v. Franklin Bank, 173 S.W. 2d 837, 351 Mo. 688 (1943).

An estimate of costs of a construction proceeding does not have to be filed before special benefits can be assessed in a condemnation proceeding. City of St. Louis v. Franklin Bank, 173 S.W. 2d 837, 351 Mo. 688 (1943).

When city entered land to construct permanent improvements for contemplated public use, acquisition of land through eminent domain by condemnation was inferred. Langenberg v. City of St. Louis, 197 S.W. 2d 621, 355 Mo. 634 (1946).

Absent final judgment on the exceptions to the assessments of benefits there is nothing to review. City of St. Louis v. Pope, 68 S.W. 2d 805 (1934).

The trial court's judgment will not be overturned unless the damages awarded are so grossly excessive as to indicate abuse of discretion or arbitrary action. Ex parte Taylor, 108 S.W. 2d 636 (1937).

The benefit district should not be fixed in the ordinance providing for the improvement. Wabash Ry. Co. v. City of St. Louis, 64 F. 2d 921 (1933).

McQuillin:

Ch. 32 Eminent Domain

Section 1 Initiation of proceedings.

Condemnation of (and) or damage to private property, real or personal, or any easement or use therein or restriction of the use thereof for public use, shall be effected as herein provided and as may be further provided by ordinance not inconsistent with this charter. Upon the board of aldermen providing by ordinance recommended by the board of public service,

City Counselor Ops.: 8138, 8745, 10281

Cases:

A petition that does not state the property affected fails to state a cause of action. City of St. Louis v. Waterman, 209 S.W. 905, 277 Mo. 221 (1919).

A defective petition may be amended. City of St. Louis v. Waterman, 209 S.W. 905, 277 Mo. 221 (1919).

Since the ordinance under this section must describe the taxing district in order to be valid, there is necessary notice. City of St. Louis v. Missouri Pac. Ry. Co., 211 S.W. 671, 278 Mo. 205 (1919).

The description requirements are met when the property sought to be appropriated is described; there is no need to describe each landowner's property. State v. Grimm, 284 S.W. 490, 314 Mo. 242 (1926); State v. Hall, 28 S.W. 2d 80, 325 Mo. 165 (1930).

Plat filed with and made part of petition may be used to aid description. State v. Grimm, 284 S.W. 490, 314 Mo. 242 (1926).

The city cannot obtain an easement for a street to cross railroad tracks without an order from the public service commission. City of St. Louis v. St. Louis-San Francisco Ry. Co., 50 S.W. 2d 637, 330 Mo. 499 (1932).

When the extension of a street does not serve a public purpose there can be no action for condemnation. City of St. Louis v. Butler Co., 223 S.W. 2d 831 (1949).

The amount of damages should be determined at the time the award is made, not the effective date of ordinance. City of St. Louis v. International Harvester Company, 350 S.W. 2d 782 (1961).

History:

Submission Ordinance No. 38663

Submission Ordinance Approved July 10, 1930.

Amendment Substance: repeal Section 1, and enact new Section 1, relating to parties and purposes of condemnation proceedings.

Voter Rejection Date: November 4, 1930.

Submission Ordinance No. 38865

Submission Ordinance Approved February 19, 1931.

Amendment Substance: relating to parties and purpose of condemnation proceedings.

Voter Rejection Date: April 7, 1931.

Submission Ordinance No. 39898

Submission Ordinance Approved January 30, 1933.

Amendment Substance: repealing Section 1, enacting new Section 1, relating to condemnation procedures.

Voter Adoption Date: April 4, 1933.

(a) Petition. Upon the board of aldermen providing by ordinance recommended by the board of public service, (1) for the appropriation of any private property or any easement, use, right or interest therein, or (2) damage by reason of establishing or changing the established grade of any public street or alley or restriction of the use thereof, for any public use, or (3) for any public improvement or work which will damage private property, the city counselor, in the name of the city, shall apply promptly and in no event later than six months after such ordinance is effective to the circuit court of the eighth judicial circuit, or to any judge thereof in vacation by petition setting forth the general nature of the public use for which the property is to be appropriated, damaged or restricted, a description of the property and the estate or interest therein or restriction of the use thereof in each instance which the city seeks to appropriate, damage or impose, and praying the appointment of three disinterested commissioners to assess damages and benefits as hereinafter provided, to which petition the owners shall be made defendants by name, if known, and if unknown, by describing their claims and interests in such property and how derived by them.

City Counselor Ops.: 8280

(b) Parties defendant. If the action affects the property of persons under guardianship, the guardians shall be made defendants; if the property of married persons, their consorts shall be made defendants; if an estate or interest less than a fee, the persons having the next vested estate in remainder or reversion shall be made defendants or their interests will not be bound; but only persons in actual possession of and claiming title or who have record title appearing upon the proper records of the city to property affected, need be made defendants.

(c) Notice. Notice of the filing of the petition, describing the property to be taken, damaged or restricted, shall be filed and recorded in the office of the recorder of deeds, otherwise purchasers of such property shall not be bound by the proceedings under the petition, provided that whenever the board of public service of said city shall by order designate the established grade of any street, boulevard, parkway, alley or other highway proposed in said ordinance to be opened, established or widened, damages and benefits, because of the establishment of such grade, may be ascertained and determined together with and in the same proceeding as the damages and benefits with respect to said opening, establishment or widening; in which case said established grade shall be set forth in the petition or in an amended petition.

(d) Resubmission of ordinance. Where the improvement is a major highway or traffic artery, and is so designated in the ordinance, said ordinance may provide that in case the total damages, as finally determined by the court, to be awarded for property damaged or taken, shall exceed a sum stated in such ordinance then said ordinance shall be resubmitted to the board of aldermen. Pending action by them, final judgment in the cause shall not be entered for at least four months after such final determination of damages.

Section 1-A Information to be filed by board of public service.

Whenever an ordinance providing for the appropriation, taking, damaging, or restricting the use of private property is pending before the board of aldermen, the board of public service shall upon request of the board of aldermen cause to be prepared an estimate of the total damages to be occasioned by said public work or improvement, an outline of the suggested benefit or taxing district, and an estimate of the probable maximum aggregate of benefits to be assessed therein, together with a general explanation of the manner in which such aggregate of benefits was determined.

History:

Submission Ordinance No. 39898

Submission Ordinance Approved January 30, 1933.

Amendment Substance: Article XXI amended by adding five new sections as:

1A;17, payment of benefits in installments and anticipation bonds;18, sale of unpaid judgments for benefit assessments;19, division of assessments against joint owners; and

20, application of amendment of Article XXI to prior proceedings.

Voter Adoption Date: April 4, 1933.

Section 2 Issuance and service of summons.

Upon the filing of the petition, summons shall be issued, giving the defendants at least ten days' notice of the hearing on the petition; and the city marshal shall serve such summons and make return as required by law for service and return of writs of summons. If the name or residence of any owner be unknown, or if any owner does not reside in the state, or cannot be found within the state, a notice giving the general nature of the petition, with a description of the property of such unknown or nonresident owners, or owners who cannot be found within the state, and the day fixed for the hearing, shall be published once each week for four consecutive weeks, the last publication to be at least ten days before the hearing in a newspaper qualified by law to publish such notices and advertisements.

History:

Submission Ordinance No. 38663

Submission Ordinance Approved July 10, 1930.

Amendment Substance: repeal Section 2, and enact new Section 3, relating to service of summons on persons not found in State.

Voter Rejection Date: November 4, 1930.

Submission Ordinance No. 38865

Submission Ordinance Approved February 19, 1931.

Amendment Substance: relating to service on persons who cannot be found in State.

Voter Rejection Date: April 7, 1931.

Submission Ordinance No. 39898

Submission Ordinance Approved January 30, 1933.

Amendment Substance: amending Section 2, by inserting clarifying phrases on service of summons, and advertising notice of condemnation suit.

Voter Adoption Date: April 4, 1933.

Section 3 Commissioners, appointment, duties.

The permanent condemnation commission and the offices thereof are hereby abolished, provided, however, that any present duly appointed and acting commissioners shall continue to serve as though appointed as provided hereunder for the purposes of carrying out the responsibilities and duties of such commissioners in any proceeding instituted under article XXI of this charter prior to the effective date of this amendment.

The court, or a judge thereof in vacation, when notice has been given as herein above provided, shall appoint three disinterested commissioners, freeholders resident in the City of St. Louis for five years next before their appointment to assess the damages and benefits in said condemnation proceeding.

The commissioners shall familiarize themselves with the property involved in the said condemnation proceeding pending in the circuit court. They shall confer among themselves regarding the damages and benefits respectively involved in the said proceeding to the end that the greatest possible uniformity in the awarding of damages and the assessment of benefits may be achieved. The court, or the judge thereof in vacation shall make such rules and regulations for the government of said commission and the proceedings thereof as it may deem proper which said rules and regulations may from time to time be altered, amended, modified or rescinded. The commissioners shall keep such records as they may determine advisable and shall hold their hearings publicly in some suitable place or places designated by the court. It shall be the duty of the proper authorities to prepare and furnish said place or places and to provide for the proper lighting, heating and care of same and to furnish such facilities for the proper preservation of their files and records and do such other things as shall be proper to enable said commissioners to properly discharge their duties. The court or judge, in designating such commissioners, shall exclude from their consideration the assessment of all damages for the trial of which a jury has been duly demanded.

Such commissioners shall enter upon their duties without delay, and shall make report within the time fixed by the court, which time shall in no event exceed ninety days, unless the court is satisfied upon written application of the commissioners, and a hearing thereof to be held by the court within five days after the filing of such application, that additional time be granted for good cause shown.

Any party entitled to and desiring trial by jury of its rights to compensation shall file in the cause, before the assignment of the commissioners in each case, written demand therefor, including therein a description of its property to be taken or damaged, and failure so to do shall be a waiver of the right of trial by jury. Upon such demand being filed, the court shall award a jury trial and proceed therewith as in trial of civil actions; but before final judgment shall be rendered on the verdict of the jury and before the commissioners shaft make their report, the court shall certify the verdict of the jury to the commissioners, and they shall include in their report, with their separate findings, assessments and awards, the damages as assessed by the jury, reciting the fact. The claims for damages of all parties demanding jury trial in any action under this article shall be heard at the same time before one jury. The commissioners shall assess damages for property appropriated or damaged for the trial of which a jury is not demanded, as aforesaid.

City Counselor Ops.: 8568

Cases:

Benefits can be assessed against abutting property owners only for the costs of constructing a boulevard. City of St. Louis v. Bell Place Realty Co., 168 S.W. 721, 259 Mo. 126 (1914).

The commissioners' report, when confirmed by the circuit court, becomes a final judgment. Schwab v. City of St. Louis, 274 S.W. 1058, 310 Mo. 116 (1925).

The legislative power of levying assessments for condemnation benefits may be delegated to the commission and the courts. Schwab v. City of St. Louis, 274 S.W. 1058, 310 Mo. 116 (1925).

Assessment of damages is made according to the separate distinct properties taken and not on the basis of different interests in the property. State v. Hall, 28 S.W. 2d 80, 235 Mo. 165 (1930).

In the absence of a trial by jury, the report of the commissioners is, in effect, a jury verdict. City of St. Louis v. Franklin Bank, 100 S.W. 2d 924, 340 Mo. 383 (1936); City of St. Louis v. Pandjiris Weldment Co., 270 S.W. 2d 17 (1954).

The report of the commissioners is presumptively valid. City of St. Louis v. Franklin Bank, 100 S.W. 2d 924, 340 Mo. 383 (1936); City of St. Louis v. Pandjiris Weldment Co., 270 S.W. 2d 17 (1954).

This section is constitutional since a jury trial can be waived if a timely request is not made. City of St. Louis v. International Harvester Company, 350 S.W. 2d 782 (1961).

History:

Submission Ordinance No. 38663

Submission Ordinance Approved July 10, 1930.

Amendment Substance: repeal Section 3, and enact new Section 3, relating to appointment of commissioners in condemnation proceedings.

Voter Rejection Date: November 4, 1930.

Submission Ordinance No. 38865

Submission Ordinance Approved February 19, 1931.

Amendment Substance: relating to appointment of commissioners in condemnation proceeding.

Voter Rejection Date: April 7, 1931.

Submission Ordinance No. 39898

Submission Ordinance Approved January 30, 1933.

Amendment Substance: repealing Section 3 and enacting a new Section 3, relating to court procedures on condemnation petitions.

Voter Adoption Date: April 4, 1933.

Submission Ordinance No. 56590

Submission Ordinance Approved October 29, 1973.

Amendment Substance: repeal of Sections 3, 7, and 9, as amended, and enacting new Sections 3, 7, and 9, respectively relating to abolishing the permanent Condemnation Commission of the City; empowering the court upon exceptions to, among other things, appoint a new commission; fixing commissioners' compensation to $100 per day and a maximum of rive days in any one action unless otherwise ordered by the court.

Voter Adoption Date: August 6, 1974.

Section 4 Determination of damages; liability of benefited property.

It shall be the duty of the commissioners, except as herein otherwise provided, in the condemnation or the damaging of property for highways, streets, boulevards, parkways, alleys, wharves, sewers, markets, public squares and parks, or widening or enlarging the same, or in the changing of grade of streets or other public ways or restricting the use of property or the making of other public work or improvements, to ascertain the value of property proposed to be taken and the actual damage done to private property or restriction of the use thereof, but no allowance shall be made for improvements begun on property after service of summons on or notice by publications to the owner thereof as herein provided; and the public work, improvement or use contemplated shall not be considered in determining the value of property taken. For the payment of all such damages the commissioners shall assess against all the lots or parcels of property or interests therein especially benefited by the proposed public work or improvement, separately, and in the name of the several owners thereof, the amount that each such lot or parcel of property or interest therein so assessed shall be especially benefited by the proposed public work or improvement, and against the city the balance of the damages over and above the aforesaid special benefits assessed; provided, that in the opening of an alley there shall be assessed against the lots or parcels in the blocks in which the alley is opened benefits sufficient to pay all damages.

City Counselor Ops.: 8300, 9482

Cases:

Benefits can only be assessed against abutting property owners for the costs of constructing a boulevard. City of St. Louis v. Bell Place Realty Co., 168 S.W. 721, 259 Mo. 126 (1914).

Benefits shall not be assessed against property the city has acquired through condemnation. City of St. Louis v. Senter Commission Co., 85 S.W. 2d 21, 337 Mo. 238 (1935).

Improvement for which special benefits are assessable must be specifically mentioned. City of St. Louis v. Pope, 126 S.W. 2d 1201, 344 Md. 479 (1938).

The cost of building a memorial plaza and auditorium cannot be assessed as a benefit. City of St. Louis v. Pope, 126 S.W. 2d 1201, 344 Mo. 479 (1938).

The term "specially benefited" or "especially benefited" is intended to apply to all property in the benefit district whose market value has been increased by reason of improvement. Wabash Ry. Co. v. City of St. Louis, 64 F. 2d 921 (1933).

History:

Submission Ordinance No. 39898

Submission Ordinance Approved January 30, 1933.

Amendment Substance: amending Section 4 by inserting clarifying phrases for determination of damages upon condemnation suit.

Voter Adoption Date: April 4, 1933.

Submission Ordinance No. 39898

Submission Ordinance Approved January 30, 1933.

Amendment Substance: Article XXI amended by adding a new Section 4 A, relating to major highway or traffic arteries, assessment procedure and limitations and sources of funding from property owners and motor fuel taxes.

Voter Rejection Date: April 4, 1933.

Section 5 Property to be viewed; establishment of benefit or taxing district; publication of boundaries; report of assessment.

The commissioners shall view the property to be taken, damaged, restricted or assessed; fix the benefit or taxing district; publish, for ten days before beginning their assessment, in said newspaper qualified by law to publish, such notices and advertisements the last insertion being at least five days before the time named in such notice; and publish once a week for two consecutive weeks in a newspaper of general circulation in the City of St. Louis, published for at least one year, and printed in the English language, a notice of the boundaries of the benefit or taxing district and of the time and place at which they will assess such damages and benefits, and shall cause to be posted by the city marshal, at least fifteen days prior to the time designated, a copy of said notice in at least six places exposed to public view within said district; they shall hear the evidence submitted by the parties interested; assess the damages as of the date said ordinance became effective, or as to any property added by an amendment to such ordinance as of the date upon which said amendment became effective; they shall have authority to examine under oath such witnesses as may appear; they shall make report, in which at least two commissioners shall concur, of such assessment in writing and under oath to the circuit court. Such report shall be filed within the limit of the time fixed by the court, and shall set forth in brief and concise paragraphic form all findings of fact, when so directed by the court upon application of any interested party. In such report the compensation allowed and the benefits assessed against each owner shall be separately stated. When the commissioners both assess benefits and allow damages against any one property owner they shall deduct the lesser from the greater.

Cases:

The publication of notice under this section amounts to due process of law giving the circuit court jurisdiction. Schwab v. City of St. Louis, 274 S.W. 1058, 310 Mo. 116 (1925).

The valuation of property is made from the date the ordinance became effective. State v. Beck, 63 S.W. 2d 814, 333 Mo. 118 (1933); City of St. Louis v. Senter Commission Co., 85 S.W. 2d 21, 337 Mo. 238 (1935).

The provision that the amount of damages should be determined from the effective date of the ordinance is unconstitutional. Damages should be determined at the time the property is taken. City of St. Louis v. International Harvester Co., 350 S.W. 2d 782 (1961).

In a condemnation processing personal service on the parties in the benefit district is not required. City of St. Louis v. Koch, 156 S.W. 2d 1 (1941).

History:

Submission Ordinance No. 38663

Submission Ordinance Approved July 10, 1930.

Amendment Substance: repeal Section 5, and enact new Section 5, relating to condemnation hearings, assessments of damages and benefits by commissioners, and reports of commissioners.

Voter Rejection Date: November 4, 1930.

Submission Ordinance No. 38865

Submission Ordinance Approved February 19, 1931.

Amendment Substance: relating to hearings, assessment of damages and benefits by commissioners, and report of commissioners.

Voter Rejection Date: April 7, 1931.

Submission Ordinance No. 39898

Submission Ordinance Approved January 30, 1933.

Amendment Substance: repealing Section 5, and enacting new Section 5, duties of commissioners upon condemnation suit.

Voter Adoption Date: April 4, 1933.

Section 6 Rights of city upon payment of damages into court.

At any time after the commissioners file their report the city may pay into court the amount of damages assessed, less benefits, if any, and thereupon it shall be entitled to take possession of or damage the property, assuming the lien of all general taxes not then payable on property actually appropriated.

City Counselor Ops.: 8359, 8376

Cases:

Consequential damages due to the change in the grade of a street should be paid before the grading work is begun. City of St. Louis v. Wallrath, 239 S.W. 110, 293 Mo. 385 (1922).

Judgment in condemnation suit is res judicata in subsequent tort action to recover consequential damages. Treymayne v. City of St. Louis, 6 S.W. 2d 935, 320 Mo. 120 (1928).

Although exceptions to a condemnation award have been filed, the city may enter into possession and remain in possession if the exceptions are sustained. State v. Sartorius, 102 S.W. 2d 890, 340 Mo. 832 (1937).

City may take possession of condemned property pending appeal, if it pays the full amount due without condition or reservation. City of St. Louis v. Senter Commission Co., 124 S.W. 2d 1180, 343 Mo. 1075 (1939).

When owner is paid just compensation title passes to condemnor. State v. Oakley, 188 S.W. 2d 820, 354 Mo. 124 (1945).

History:

Submission Ordinance No. 38663

Submission Ordinance Approved July 10, 1930.

Amendment Substance: repeal Section 6, and enact new Section 6, relating to interlocutory condemnation benefits.

Voter Rejection Date: November 4, 1930.

Submission Ordinance No. 38865

Submission Ordinance Approved February 19, 1931.

Amendment Substance: relating to interlocutory judgments for benefits.

Voter Rejection Date: April 7, 1931.

Section 7 Exceptions, review by court.

Within twenty days from the filing of the commissioners' report, exceptions in writing thereto may be filed by any party interested, and upon such exceptions the court shall review the report, and may order, on cause shown, a new assessment by other commissioners, or make such other orders thereon as justice may require. The court shall hear and dispose of such exceptions with all reasonable speed, and may itself assess benefits anew.

Cases:

Under this section the court may use its inherent power to correct clerical errors. City of St. Louis v. Bush, 158 S.W. 309, 252 Mo. 209 (1913); City of St. Louis v. Senter Commission Co., 102 S.W. 2d 103, 340 Mo. 633 (1937).

The supreme court will only interfere upon the showing of an abuse of discretion in ordering a new appraisal. City of St. Louis v. Gerhart Realty Co., 40 S.W. 2d 661, 328 Mo. 103 (1931).

The court is not required to write a memorandum opinion stating the reasons for setting aside the commissioners' report. City of St. Louis v. Senter Commission Co., 73 S.W. 2d 389, 335 Mo. 489 (1934).

The exceptor bears the burden of proof in showing that the commissioners' report was wrong. City of St. Louis v. Franklin Bank, 100 S.W. 2d 924, 340 Mo. 383 (1936).

In the absence of a trial by jury, the report of the commissioners is, in effect, a jury verdict. City of St. Louis v. Franklin Bank, 100 S.W. 2d 924, 340 Mo. 383 (1936); City of St. Louis v. Pandjiris Weldment Co., 270 S.W. 2d 17 (1954).

Although exceptions to a condemnation award have been filed, the city may enter into possession and remain in possession even if the exceptions are sustained. State v. Sartorius, 102 S.W. 2d 890, 340 Mo. 832 (1937).

Statutes providing for trial by common law jury of exceptions were not applicable to constitutional charter city. State v. Williams, 240 S.W. 2d 703, 362 Mo. 176 (1951).

History:

Submission Ordinance No. 39898

Submission Ordinance Approved January 30, 1933.

Amendment Substance: repealing Section 7, and enacting new Section 7, relating to exceptions to commissioners' reports.

Voter Adoption Date: April 4, 1933.

Submission Ordinance No. 56590

Submission Ordinance Approved October 29, 1973.

Amendment Substance: repeal of Sections 3, 7, and 9, as amended, and enacting new Sections 3, 7, and 9, respectively relating to abolishing the permanent Condemnation Commission of the City; empowering the court upon exceptions to, among other things, appoint a new commission; fixing commissioners' compensation to $100 per day and a maximum of five days in any one action unless otherwise ordered by the court.

Voter Adoption Date: August 6, 1974.

Section 8 Entry of judgment; payment of damages; collection where city fails to pay.

The court upon approving the commissioners' report shall render final judgment thereon reciting the report and adjudging that the city have and hold the property petitioned for, describing the same, for the purposes specified, upon payment of the damages less the benefits assessed in each instance; that so much of the report as is a judgment for benefits against specific property be a lien on such property for ten years from entry of the judgment, and prior to all other liens thereon; and that the city recover the respective benefits in excess of damages assessed in each instance against private property with interest from date of judgment, or at the termination of such period of grace, not to exceed one year, as may be granted by the board of aldermen in the ordinance authorizing the public work or improvement, and have execution therefor.

The clerk shall forthwith make and deliver a certified copy of such judgment to the comptroller, who shall record the same in a book kept and conveniently indexed for that purpose. The comptroller may, forthwith, and if no appeal be taken from such final judgment, he shall, at the expiration of the time for such appeal, forward a copy of the judgment to the board of aldermen; and within sixty days after the receipt of such copy, unless an appeal is pending, and, in no event later than sixty days after disposition of all appeals, the board of aldermen shall make an appropriation for the payment out of the city treasury of the damages assessed in favor of each party entitled thereto less his benefits as determined by such final judgment, and the city treasurer, on warrant of the comptroller, shall cause payment to be made to the several parties entitled or into court for their use, as the case may require.

Should the board of aldermen fail to make such an appropriation the judgment for damages shall be collected by the owners concerned as other judgments against the city are collected and if any part of such assessment of benefits be not paid when due, special execution shall issue on request of the comptroller against the property charged with the lien and proceedings thereunder shall conform, as near as may be, to the proceedings under special executions on ordinary judgments foreclosing liens on lands.

Should any such final judgment be reversed on appeal and a new assessment be ordered, the city or any defendant shall have judgment for any excess due by reason of payment having been made by such party under a prior final judgment in the cause.

City Counselor Ops.: 8280

Cases:

The duration of the lien of benefit assessments may last ten years. Schwab v. City of St. Louis, 274 S.W. 1058, 310 Mo. 116 (1925).

Judgment in condemnation suit is res judicata in subsequent tort action to recover consequential damages. Treymayne v. City of St. Louis, 6 S.W. 2d 935, 320 Mo. 120 (1928).

The court is not required to write a memorandum opinion stating the reasons for setting aside the commissioners' report. City of St. Louis v. Senter Commission Co., 73 S.W. 2d 389, 335 Mo. 489 (1934).

The additional damages need not be paid while an appeal is pending. State v. Sartorius, 102 S.W. 2d 890, 340 Mo. 832 (1937).

Cause of action to enjoin collection and assignment of judgments for benefit taxes did not accrue upon filing of commissioners' report, but upon final judgment. Eighth and Morgan G and F Station v. City of St. Louis, 119 S.W. 2d 202, 342 Mo. 874 (1938).

City may take possession of condemned property pending appeal if it pays the full amount due without condition or reservation. City of St. Louis v. Senter Commission Co., 124 S.W. 2d 1180, 343 Mo. 1075 (1939).

A benefit judgment is prior to an other lien except the lien for general taxes. State v. Hughes, 166 S.W. 2d 516, 350 Mo. 547 (1942).

The section must be construed with 6 to the effect that title passes when just compensation is paid. State v. Oakley, 188 S.W. 2d 820, 354 Mo. 124 (1945).

The lien of a benefit judgment is a tax lien and governed by the rule of reverse priorities. Stiers v. Vrooman, 115 S.W. 2d 94, 234 Mo. App. 161 (1938).

When city appeals from a benefit judgment, it is not entitled to interest prior to affirmance. State v. City of St. Louis, 115 S.W. 2d 513, 234 Mo. App. 209 (1938).

The liens of successive benefit judgments are on a parity. City of St. Louis v. Wall, 124 S.W. 2d 616, 235 Mo. App. 9 (1939).

Interest not suspended during city's appeal from judgment. City of St. Louis v. Richardson, 281 S.W. 395 (1926).

A general tax lien is prior to a judgment lien for benefits in condemnation. City of St. Louis v. Koch, 156 S.W. 2d 1 (1941).

Special benefit assessments not reduced to judgment are not liens and not collectible from fund paid into court in condemnation proceedings. City of St. Louis v. Dyer, 56 F. 2d 842 (1939).

History:

Submission Ordinance No. 38663

Submission Ordinance Approved July 10, 1930.

Amendment Substance: repeal Section 8, enact new Section 8, relating to condemnation judgments for excess payments by City or property owners.

Voter Rejection Date: November 4, 1930.

Submission Ordinance No. 38865

Submission Ordinance Approved February 19, 1931.

Amendment Substance: relating to judgments for excess payments by City or property owners.

Voter Rejection Date: April 7, 1931.

Submission Ordinance No. 39898

Submission Ordinance Approved January 30, 1933.

Amendment Substance: amending Section 8, by inserting phrase permitting grace period for payment of benefits assessed in court judgment of condemnation.

Voter Adoption Date: April 4, 1933.

Submission Ordinance No. 66330

Submission Ordinance Approved July 23, 2004.

Amendment Substance: restructures city finance offices and functions.

Voter Rejection Date: November 2, 2004.

Section 9 Cost of litigation, compensation of commissioners.

The losing party shall pay the cost caused by litigation subsequent to the filing of the commissioners' report, and the city shall pay all other costs, including the compensation of the commissioners, which shall be one hundred dollars per day for each commissioner for not exceeding five days in any one action unless the court makes an order allowing further time at like compensation.

Cases:

The court has the discretion to extend the time for the commissioners to make their report, the city being required to pay the additional compensation. City of St. Louis v. Schuttenberg, 212 S.W. 864 (1919).

History:

Submission Ordinance No. 39898

Submission Ordinance Approved January 30, 1933.

Amendment Substance: repealing Section 9, and enacting a new Section 9, by striking out the provision fixing commissioners' compensation at $5 per day.

Voter Adoption Date: April 4, 1933.

Submission Ordinance No. 56590

Submission Ordinance Approved October 29, 1973.

Amendment Substance: repeal of Sections 3, 7, and 9, as amended, and enacting new Sections 3, 7, and 9, respectively relating to abolishing the permanent Condemnation Commission of the City; empowering the court upon exceptions to, among other things, appoint a new commission; fixing commissioners' compensation to $100 per day and a maximum of five days in any one action unless otherwise ordered by the court.

Voter Adoption Date: August 6, 1974.

Section 10 Limitation on subsequent action where proceedings dismissed.

If the city dismisses any action for the appropriation, damaging or restriction of the use of any property 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, damaged or restricted, measured by frontage upon the proposed improvement, or upon condition that the city shall pay all of the damages assessed therein.

City Counselor Ops.: 7835

History:

Submission Ordinance No. 39898

Submission Ordinance Approved January 30, 1933.

Amendment Substance: repealing Section 10, and enacting a new Section 10, containing the same matter and adding clarifying matter; re subsequent condemnation actions.

Voter Adoption Date: April 4, 1933.

Section 11 Effect on abutting property of establishment of boulevards and parkways; power of city.

In establishing, opening and widening boulevards and converting streets into boulevards or parkways, compensation shall be allowed to owners of property abutting thereon for damages occasioned by any limitation that may be put upon the owner's use of such property; and the city may regulate by ordinance the character of traffic and vehicles that shall be permitted on boulevards or parkways, prohibit the erection of any structure on property abutting on a boulevard or parkway outside a specified building line, and forbid the use of any property so abutting for all or any business purposes. An ordinance establishing a boulevard or parkway may be repealed, upon recommendation of the board of public service, and thereupon the boulevard or parkway shall become a street, which, together with the property abutting thereon, shall be free from all restrictions imposed by the repealed ordinance. Damages and benefits resulting from such repeal after the boulevard or parkway has been opened shall be ascertained and paid as herein provided for establishing boulevards or parkways.

Cases:

A boulevard does not have to have regular dimensions and sides. City of St. Louis v. Handlan, 145 S.W. 421, 242 Mo. 88 (1912).

Exemption of certain properties from the established building line is not permitted. City of St. Louis v. Handlan, 145 S.W. 421, 242 Mo. 88 (1912).

An ordinance is void if it is ambiguous whether a street or a boulevard is to be established. City of St. Louis v. Bell Place Realty Co., 168 S.W. 721, 259 Mo. 126 (1914).

A boulevard is of a definite character and cannot be described as a street. Albers v. City of St. Louis, 188 S.W. 83, 268 Mo. 349 (1916).

The word "avenue" is synonymous with street. City of St. Louis v. Breuer, 223 S.W. 108 (1920).

Section 12 Procedure in condemnations for miscellaneous purposes.

When the city takes or damages private property for a public use other than those enumerated in section 4 of this article all damages shall be ascertained as hereinbefore provided and shall be paid by the city.

Cases:

The entire cost of building a memorial auditorium must be borne by the city. City of St. Louis v. Pope, 126 S.W. 2d 1201, 344 Mo. 479 (1938).

Section 13 When assessment for benefits to equal amount of damages.

The vacation of highways, streets, boulevards, parkways and alleys shall be provided for by ordinance recommended by the board of public service, and easements and rights therein shall be condemned and the special damage and benefits caused thereby shall be ascertained and assessed, in the manner, by the proceedings, and according to the rules hereinbefore prescribed as to other appropriating or damaging; provided, that benefits sufficient to pay all damages shall be assessed against the lots or parcels of land abutting the highway, street, boulevard, parkway or alley to be vacated.

City Counselor Ops.: 8224, 8324, 10281

Cases:

Glasgow v. City, 15 Mo. App. 112, affirmed 87 Mo. 678.

Glasgow v. City, 107 Mo. 198, 17 S.W. 743.

Knapp, Stout & Co. v. City, 153 Mo. 560, 55 S.W. 104.

Knapp, Stout & Co. v. City, 156 Mo. 343, 56 S.W. 1102.

Section 14 Acquisition of property by private purchase; vacation of streets, etc.

Nothing herein shall limit the power of the city by ordinance recommended by the board of public service to acquire property by private purchase, or to vacate any highway, street, boulevard, parkway or alley without proceeding hereunder when the owners of all property specially damaged petition therefor and waive all damages.

City Counselor Ops.: 7719, 8030, 8224, 8262, 8324, 9844, 99010, 10281, 10387

Cases:

The words "owners of all property" refer to the owners in fee of the real estate. Marks v. Bettendorf's Inc., 337 S.W. 2d 585 (1960).

Section 15 When assessments may be paid in installments; issuance of bonds in anticipation of unpaid installments.

Ordinances for appropriating or damaging property for markets, public squares, public parks and other like public uses and improvements may provide for payment of the special assessments made on lands specially benefited by such uses and improvements in one installment or in equal annual installments not to exceed seven in number, in which event the judgments shall so recite; such judgments shall bear interest payable annually at the rate of six per centum per annum on any unpaid part thereof from entry until paid but any part thereof not paid when due shall thereafter bear interest at the rate of eight per centum per annum; and for the purpose of anticipating the collection of such judgments the city may issue and sell local improvement bonds, following the procedure, as far as the same is applicable, provided in article XXIV, for bonds issued in anticipation of the collection of special assessments to pay for local improvements; provided, that the city shall not be liable to pay bonds herein provided for, but the same shall be payable solely out of the collections of the particular judgments.

Cases:

This section supports the argument that the duration of the lien of benefit assessments may last ten years. Schwab v. City of St. Louis, 274 S.W. 1058, 310 Mo. 116 (1925).

History:

Submission Ordinance No. 38663

Submission Ordinance Approved July 10, 1930.

Amendment Substance: repeal Section 15, enact new Section relating to payment of benefit assessments in installments; issuance of bonds or condemnation certificates in anticipation of collection of benefit assessments, and sale of judgments for benefit assessments.

Voter Rejection Date: November 4, 1930.

Submission Ordinance No. 38865

Submission Ordinance Approved February 19, 1931.

Amendment Substance: relating to payment of benefit assessments in installments; issuance of bonds or condemnation certificates in anticipation of collection of benefit assessments, and to sale of judgments for benefit assessments.

Voter Rejection Date: April 7, 1931.

Section 16 Appropriation of private property in excess of actual requirements.

Whenever it may lawfully be done, the board of aldermen, in the ordinance providing for the appropriation of private property or any easement or use therein for any highway, street, boulevard, parkway, park, wharf, bridge, viaduct, subway, tunnel or sewer, or providing for any public work or improvement which will damage or benefit private property, may provide for the appropriation in fee by the city of private property or any easement or use therein in excess of that actually required for such specific purpose, and in the same or a different ordinance may authorize the sale of such excess for value with or without restrictions. Such excess shall be condemned and compensation therefor ascertained and rendered in the same proceeding, and in the same manner as near as may be, as the property, easement or use actually needed as aforesaid; provided, that the value of such excess shall be paid for by the city.

City Counselor Ops.: 9623

Section 17 Payment of benefits in installments; issuance of anticipation bonds.

The board of aldermen, in the ordinance establishing the public work or improvement or by a subsequent ordinance recommended by the board of public service, may provide for payment of the special assessments levied against land especially benefited by such public work or improvement, in equal annual installments not to exceed ten in number, in which event the judgments shall so recite; provided that any such judgment may be paid in full at any time, except that, when bonds shall be issued as hereinafter provided, such payment may be made only within thirty days after the entry of judgment, or within any period of grace granted as provided in Section Eight. The deferred installments of said judgment shall bear interest at the rate of six percent per annum, commencing thirty days after the date of entry thereof, unless otherwise provided by ordinance in accordance with Section Eight, until due, and if not paid when due, at the rate of eight percent per annum thereafter.

For the purpose of anticipating the collection of such judgments, the city may issue and sell improvement bonds to an amount not exceeding eighty-five percent of the aggregate of such judgments, such aggregate not including any assessments paid in full as herein provided or not then finally determined judicially. The city shall not be liable for the payment of said bonds, but the same shall be payable solely out of the collection of the particular judgments. Said bonds may be made payable serially. The ordinance authorizing the particular issue shall prescribe the form and denomination thereof; the date of maturity or maturities thereof, not to exceed ten years in any instance; the rate of interest thereon and date and place of its payment; by what officers and in what manner they shall be executed and attested; and the place and method of payment, save only the fund out of which payment shall be made, together with other provisions and regulations concerning such bonds and not inconsistent herewith. The board of aldermen by ordinance, recommended by the board of public service, may appropriate out of the general revenue, sufficient money to pay or to provide a fund in advance to pay such part of any improvement bonds issued as the proceeds of special assessments securing the same may prove insufficient to pay as they become due, not exceeding ten percent of the amount of the bond issue, and provide for reimbursement, out of the proceeds of said special assessments after all such bonds and interest have been fully paid.

All such judgments shall be collected by the city and the proceeds thereof shall be preserved and applied solely to the payment of the interest and principal of said bonds as the same shall become due and shall be used for no other purpose until the whole of said interest and principal shall have been paid.

The board of aldermen may by ordinance provide for the issuance of a single bond issue to anticipate the collection of special benefit judgments rendered in two or more proceedings in the manner herein provided, such bond issue being secured by all of such special benefit judgments.

History:

Submission Ordinance No. 38663

Submission Ordinance Approved July 10, 1930.

Amendment Substance: enacting a new Section 17, providing for the inclusion of condemnation and change of grade matters in the same proceeding.

Voter Rejection Date: November 4, 1930.

Submission Ordinance No. 38865

Submission Ordinance Approved February 19, 1931.

Amendment Substance: relating to inclusion of condemnation and change of grade in some proceedings.

Voter Rejection Date: April 7, 1931.

Submission Ordinance No. 39898

Submission Ordinance Approved January 30, 1933.

Amendment Substance: Article XXI amended by adding five new sections as:

1A;17, payment of benefits in installments and anticipation bonds;18, sale of unpaid judgments for benefit assessments;19, division of assessments against joint owners; and

20, application of amendment of Article XXI to prior proceedings.

Voter Adoption Date: April 4, 1933.

Section 18 Sale of unpaid judgments for benefit assessments.

The city may also sell, assign or transfer, for not less than ninety percent of the face value thereof, the whole or any part of any unpaid judgments for such benefit assessments, and apply the proceeds to the payment of such damage awards.

History:

Submission Ordinance No. 38663

Submission Ordinance Approved July 10, 1930.

Amendment Substance: enacting a new Section 18, providing for amendments of condemnation ordinances and proceedings thereon.

Voter Rejection Date: November 4, 1930.

Submission Ordinance No. 38865

Submission Ordinance Approved February 19, 1931.

Amendment Substance: relating to amendments of condemnation ordinances and proceedings thereon.

Voter Rejection Date: April 7, 1931.

Submission Ordinance No. 39898

Submission Ordinance Approved January 30, 1933.

Amendment Substance: Article XXI amended by adding five new sections as:

1A;
17, payment of benefits in installments and anticipation bonds;
18, sale of unpaid judgments for benefit assessments;
19, division of assessments against joint owners; and
20, application of amendment of Article XXI to prior proceedings.

Voter Adopdon Date: April 4, 1933.

Section 19 Division of assessment against joint owners.

Whenever title to distinct portions of any lot or parcel of property assessed [for] benefits in accordance herewith, shall vest in different owners, on application in writing of any one or more of such owners, the board of commissioners first having given notice by mail addressed to the owners in fee, if known, of the other portions of said property, at their last known address, shall determine the amount of said assessment chargeable to such distinct portion in accordance with the original assessment; and the parties charged with the collection thereof shall accept payment of said amount with interest due thereon. The lien of the judgment shall then terminate as to such portion, proper entries thereof being made on the records of the court.

History:

Submission Ordinance No. 39898

Submission Ordinance Approved January 30, 1933.

Amendment Substance: Article XXI amended by adding five new sections as:

1A;
17, payment of benefits in installments and anticipation bonds;
18, sale of unpaid judgments for benefit assessments;
19, division of assessments against joint owners; and
20, application of amendment of Article XXI to prior proceedings.

Voter Adoption Date: April 4, 1933.

Section 20 Application of amendment to prior proceedings.

That no amendment adopted April 4, 1933, to Article XXI of this charter shall apply to any proceeding instituted prior to that date except as follows: (1) any such proceeding in which commissioners to assess benefits and damages have not been appointed prior to said April 4, 1933, shall be referred to the permanent commission and further proceedings had in accordance with the provisions of this article as amended; (2) the provisions of sections 17 and 18 shall apply to any proceedings at present pending in the circuit court.

History:

Submission Ordinance No. 39898

Submission Ordinance Approved January 30, 1933.

Amendment Substance: Article XXI amended by adding five new sections as:

1A;
17, payment of benefits in installments and anticipation bonds;
18, sale of unpaid judgments for benefit assessments;
19, division of assessments against joint owners; and
20, application of amendment of Article XXI to prior proceedings.

Voter Adoption Date: April 4, 1933.

Return to Top of Charter, Code, and Ordinances.
Return to Charter Table of Contents.

HOME | KIDZONE | CATALOG | CONTACT US | SEARCH | HINTS