Brunn v. Kansas City

• Citation: 115 S.W. 446,216 Mo. 108
• Parties: CHARLES A. BRUNN and FRANKLIN J. DONNELL et al., Appellants, v. KANSAS CITY
• Decision Date: 14 January 1909
• Court: United States State Supreme Court of Missouri

115 S.W. 446

216 Mo. 108

CHARLES A. BRUNN and FRANKLIN J. DONNELL et al., Appellants, v. KANSAS CITY

Supreme Court of Missouri, First Division

January 14, 1909

Appeal from Cass Circuit Court. -- Hon. N. M. Bradley, Judge.

Affirmed.

Frank F. Brumback and E. P. Garnett for appellants.

The allowance of interest on the award, from its date, was necessary to complete plaintiffs' just compensation for the property taken. The jury found that they were entitled to that amount on that date; when the compensation was withheld for four years, there should have been added additional compensation, which is ascertained by calculating interest on the award from its date. Otherwise, the property-owner does not receive the just compensation for the property taken as provided by the organic law of the land. Any charter provision which limits any part of the just compensation is void. Lewis on Eminent Domain, sec. 499; Plum v. Kansas City, 101 Mo. 525; Martin v. St. Louis, 139 Mo 246; In re Paseo, 78 Mo.App. 518; Hampton v Kansas City, 74 Mo.App. 129; Warren v Railroad, 41 Minn. 424; Melter v. Railroad, 37 N. J. L. 222; West v. Railroad, 56 Wis. 318.

Edwin C. Meservey and Francis M. Hayward for respondent.

The provision of the charter of Kansas City, article 10, section 18, in the case of taking land for public parks, is valid and not in conflict either with the Constitution or the statutes of the State. 15 Cyc. 930; Martin v. St. Louis, 139 Mo. 246; Phillips v. Pease, 39 Cal. 582; Chicago v. Wheeler, 25 Ill. 496; Fink v. Newark, 40 N. J. L. 533; Hamersley v. New York, 56 N.Y. 533; Erie Co. Com. v. Buffalo, 63 Hun 565; In re Dep. of Pub. Parks, 53 Hun 280; Pegler v. Hyde Park, 176 Mass. 101; State ex rel. v. Field, 99 Mo. 352; Kansas City v. Ward, 134 Mo. 172; Kansas City v. Oil Co., 140 Mo. 458; Kansas City v. Bacon, 147 Mo. 259; Kansas City Charter, sec. 19, art. 10.

OPINION

LAMM, P. J.

This is a suit to recover interest on an award (or judgment) in a condemnation suit. Attending to the latter: In establishing its Penn Valley Park, Kansas City commenced an omnibus suit under article 10 of its charter, regulating its exercise of the right of eminent domain, in the circuit court of Jackson county, to take the real property of divers owners and to assess against that of others benefits to pay the damages for land taken. M. S. C. Donnell with many others owned tracts within the proposed park limits, and was made a party defendant. His parcels of land were covered by conveyances in trust, but these are immaterial to any question now submitted. The issues in that proceeding were submitted to a charter jury of six freeholders who made an assessment of benefits and an award of damages -- Donnell's item being $ 28,762. (Note: Dates are material and should be kept in mind.) The award was made in the form of a verdict filed on the 24th day of April, 1897, covering 951 parcels of land. It was approved by, and judgment rendered in, said court on November 5, 1898, which judgment said nothing about interest. The cause of this delay in entering judgment is dark. Donnell elected to abide the judgment but other parties defendant appealed -- many motions for a new trial and in arrest being filed and overruled. Time was taken to settle and file a bill of exceptions. It was extended by sundry entries until October 31, 1899, when the bill was filed.

In Banc in this court on June 30, 1900, the judgment was affirmed in an opinion by Valliant, J., concurred in by a majority of his brethren (157 Mo. 450). The mandate was sent down and filed below on July 11, 1900.

The face amount of the award in favor of Donnell was paid by the city into court in an interpleader proceeding in which Kansas City was plaintiff and Donnell and other claimants of the fund were defendants, on April 11, 1901. A referee was appointed in that case and at the time of the trial of the case at bar the latter case was still pending, but no point is now made on its pendency, or because other parties claim or are litigating over the corpus of the fund or the interest accruing.

The present plaintiffs are the administrators of the estate of M. S. C. Donnell, deceased, and of the estate of Catherine E. Donnell -- trustee in the aforementioned trust conveyances affecting Donnell's lands. Prior to the interpleader suit, plaintiffs brought the present action to recover the interest at six per cent per annum on the original award. The cause went on change of venue to the Cass Circuit Court and was there heard by Judge Bradley.

In entering his decree the learned judge made a finding of facts covering matters heretofore stated, concluding on the law of the case as follows:

"3. The court finds that it was the duty of said defendant herein to pay into court at the time the said sum of $ 28,762 was paid, the interest on said amount from July 11, 1900, to April 11, 1901, at the rate of six per cent per annum, which amounted to $ 1,294.29, on said date.

"4. The court further finds, that as said sum of $ 1,294.29 was due and should have been paid into court on the said 11th day of April, 1901, the said sum of $ 1,294.29 should draw interest from said last named date at the rate of six per cent per annum up to the rendition of judgment herein.

"5. The court finds all other issues herein in favor of the defendant.

"6. It is therefore considered and adjudged by the court, that said plaintiffs have and recover of and from said defendant the said sum of $ 1,294.29, with six per cent interest thereon per annum, amounting in the aggregate to the sum of $ 1,659.85, together with all costs herein, and that execution issue therefor."

From that judgment, plaintiffs appeal.

Section 18, article 10, of the charter of Kansas City provides that any party aggrieved by any verdict and judgment in a condemnation proceeding may appeal therefrom by filing the affidavit required in appeals in other civil cases and a bond, which bond and affidavit must be filed within twenty days from the rendition of the judgment of confirmation of the verdict. Moreover, that section has the following provision: "In case of appeal, the judgment shall stand suspended until the appeal is disposed of, and no interest shall be allowed or collected on the judgment or on the assessments until such judgment be affirmed or appeal dismissed. No writ of error shall be allowed."

Section 19 of article 10 of the charter follows: "The common council shall have the power, with the concurrence of the board of park commissioners, at any time before any of the parties assessed with benefits shall have paid the amount so assessed, to repeal the ordinance ordering the proposed improvement, if such repeal be deemed for the best interests of the city; and in such event the judgment for compensation and benefits shall be void."

The pleadings, evidence and instructions were sufficient to raise all points argued, viz.: On one side it is said that the provision of the city charter denying interest on the owner's award of damages, or (otherwise put) on the amount of the judgment in his favor, pending appeal, is unconstitutional and void; that it impinges on the provisions of the Constitution requiring "just compensation" to be made for private property taken for public use (Const., art. 2, sec. 21), and that the statute (R. S. 1899, sec. 3707), giving six per cent interest on judgments, applies.

Section 21 of article 2 of the Constitution reads: "Sec. 21. That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law; and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested. The fee of land taken for railroad tracks without consent of the owner thereto shall remain in such owner, subject to the use for which it is taken."

Section 3707, Revised Statutes 1899, reads: "Sec. 3707. Interest shall be allowed on all money due upon any judgment or order of any court, from the day of rendering the same until satisfaction be made by payment, accord or sale of property; all such judgments and orders for money upon contracts bearing more than six per cent interest shall bear the same interest borne by such contracts, and all other judgments and orders for money shall bear six per cent per annum until satisfaction made, as aforesaid."

On the other side it is said that such charter provision is not obnoxious to the Constitution when construed in connection with section 16 of article 9 of the Constitution giving inhabitants of cities of more than 100,000 the right to frame a charter for their own government and giving the right to amend the same. It is further contended that the charter provision assailed supersedes the general statute on interest so far as concerns judgments in condemnation proceedings instituted under defendant's charter.

The learned trial judge took defendant's view of that proposition and plaintiffs assign error on the point. Such, in brief, is the case and such the bone of contention on appeal.

At the outset it is well to say that it is not alleged or shown that Donnell accepted the face amount of the award and took down the money. Therefore the case is free from estoppel in that regard. Moreover, plaintiffs do not assail the general charter scheme adopted under the powers donated by the Constitution and statutory Enabling Act whereby Kansas City received her warrant of authority to frame a charter containing provisions for exercising the right of eminent domain. Therefore it cannot be said that plaintiffs in one breath deny the...