State ex rel. Graham v. Seehorn
| Decision Date | 10 December 1912 |
| Citation | 151 S.W. 716,246 Mo. 541 |
| Parties | THE STATE ex rel. GEORGE S. GRAHAM et al. v. THOMAS J. SEEHORN, Judge |
| Court | Missouri Supreme Court |
Writ denied.
Douglass & Watson, Edward J. White, and Ball & Ryland for relators.
(1) If the municipal court had no jurisdiction either of the original proceedings under ordinance 3209 or of the supplemental proceedings (so-called) under ordinance 7539 then the circuit court on appeal would have no jurisdiction. (2) The charter of Kansas City could not confer original civil jurisdiction on the municipal court and so much of Secs. 1 and 2, Art. 6 and Sec. 10, Art. 4, of the Charter of 1908 as purports to do so, is violative of Secs. 1, 22, 34, 36 and 37, Art. 6 of the Constitution and Sec. 15 of the Schedule of the Constitution, conferring civil jurisdiction exclusively on circuit courts except as otherwise provided and of Sec. 16, Art. 9 of said Constitution, authorizing Kansas City to frame and adopt a charter, and is inconsistent with the Constitution and laws of the State. R.S. 1909, Secs 8579, 8663, 6050; State v. Fry, 4 Mo. 190; Abbott on Mun. Corp., Sec. 584; Spencer v. Sulley Co., 4 Dak 474; Industrial School v. County, 40 Wis. 326; Dillon on Mun. Corp. (5 Ed.), Secs. 744, 745, 632; In re Cloherty, 27 P. 1064; People v. Howell, 5 Colo 412; Lafon v. Dufracq, 9 La. Ann. 350; Ottawa v. Carey, 108 U.S. 121. (3) The municipal court was wholly without authority under the terms of the charter to "hear and determine the cause" or to impanel a jury therein by reason of the failure to publish the court order of notice of the proceedings -- a publication "necessary to the validity thereof." Charter 1908, Sec. 2, p. 255; Shaffner v. St. Louis, 31 Mo. 264; State ex rel. v. Gill, 84 Mo. 248; Kansas City v. Mulkey, 76 Mo. 247; St. Louis v. Brenckwirth, 204 Mo. 305. (4) Sec. 23, Art. 6, of the charter, concerning supplemental proceedings to cure "any error, defect or omission" in the original proceedings, has no application to the case at bar. Here there was nothing to supplement. (5) The final decree in the injunction case of Union Pacific Railroad Co. et al. v. Flynn et al., wherein it was adjudged that the municipal court had no jurisdiction of the persons or properties of the relators and that the assessments were null and void, was and is res adjudicata and precludes the city from attempting to validate them by a supplemental proceeding. McDaniel v. Carroll, 19 Ill. 226; Nelson v. Roundtree, 23 Wis. 367. (6) Original ordinance 3209 is void on its face in that it requires that "the amount allowed for private property taken shall be wholly raised by special assessments made against the property described" in the benefit district, contrary to the provisions of the charter (Sec. 3, Art. 6), which expressly directs that there shall first be assessed against the city "the amount of benefit to the city and public generally, inclusive of any benefit to any property of the city," and the balance, if any, against the several tracts of private property in benefit district. No citizen was bound to pay any attention to an ordinance in invitum, containing such a provision as did the one in question. (7) Ordinance 7539, purporting to supplement the proceedings under 3209 is void on its face, and does not comply with Sec. 23, Art. 6 of the charter governing supplemental proceedings: (a) Because said section 23 was not intended to apply to a case where the original proceedings as here, were, and were finally adjudged to be, wholly void for lack of jurisdiction. (b) Because this ordinance is vague, indefinite and uncertain in its terms and does not comply with said section 23, which requires the proceeding to be "to properly assess against any piece or parcel of private property against which an assessment was in the first proceeding erroneously made or omitted to be made, the proper amount," etc., and further that "such supplemental proceedings shall be instituted and conducted as to the particular piece or pieces of private property sought to be acquired or assessed," etc.
A. F. Evans, John G. Park, Hunt C. Moore, John G. Schaich, Jay M. Lee and A. F. Smith for respondent.
(1) The municipal courts of Kansas City have jurisdiction in a proceeding for the condemnation of land for street purposes. That jurisdiction was conferred by the Legislature when Kansas City was given its early charters by special acts. Secs. 6, 8, 12, Art. 5, Constitution 1820; Sec. 1, Art. 5, Constitution 1820, as amended in 1822; Laws 1851, p. 88; Laws 1852, p. 244; Secs. 1, 13, 21, 23, Art. 6, Constitution 1865; Laws 1867, p. 18; Laws 1870, p. 327; Laws 1872, p. 397; Laws 1875, p. 196; Secs. 1, 22, Art. 6, Constitution 1875. That jurisdiction was continued in the freeholders' charters adopted under Sec. 16, Art. 9 of the Constitution of 1875. Sec. 1, Art. 7, Charter of 1889; Sec. 1, Art. 6, Charter of 1908. The changing of the title of the court from "Mayor's Court" to "Municipal Court" did not change the jurisdiction or authority of the court. Worthington v. London Co., 164 N.Y. 81. The clause in Sec. 22, Art. 6 of the Constitution making the circuit court have exclusive jurisdiction over all civil cases "not otherwise provided for" does not mean "otherwise provided for in the Constitution." Jurisdiction conferred by a charter provision would be a jurisdiction "otherwise provided for" within the meaning of said section 22. State ex inf. v. Lund, 167 Mo. 241. The clause in Sec. 22, Art. 6 of the Constitution, permitting the conference of such jurisdiction upon inferior tribunals "as is or may be provided by law" does not mean that that law must be enacted by the General Assembly. A charter provision is a "law." Barber Co. v. French, 158 Mo. 547; Corrigan v. Kansas City, 211 Mo. 627; State ex rel. v. Field, 99 Mo. 352; Kansas City v. Oil Co., 140 Mo. 458; Kansas City v. Bacon, 147 Mo. 270; Meier v. St. Louis, 180 Mo. 409; Morrow v. Kansas City, 186 Mo. 684; Brunn v. Kansas City, 216 Mo. 108. (2) Defects in the original condemnation proceeding were cured by a supplemental proceeding, authorized by the charter. Sec. 23, Art. 6, Charter 1908. A judgment in condemnation proceeding is an entirety. St. Louis v. Nelson, 169 Mo. 461. (3) There has been no conclusive adjudication barring a hearing of the proceeding in question. (4) Ordinance 3209 was not void. (5) Ordinance 7539 was not void. (6) The ascertainment of damages for property taken and the assessment of benefits conferred, when united in one proceeding, are not separable issues permitting separate judgments. An appeal is allowable from supplemental proceedings instituted under Sec. 23 of Art. 6 of the charter. Kirksville v. Munyon, 114 Mo.App. 567; Morewood v. Hollister, 6 N.Y. 309; O'Dea v. Washington, 3 Neb. 118; Irwin v. Bank, 6 Oh. St. 81; Hare v. Rice, 142 Pa. St. 608. (7) The fact that the ordinance in the supplemental proceeding provided for the correction of benefits only, without referring to a reascertainment of damages, would not prevent a reascertainment of damages on appeal to the circuit court, because on appeal the cause must be tried de novo.
OPINION
In Banc.
Prohibition.
-- This is an original proceeding by prohibition. The relators are owners of real estate in a proposed benefit district in a certain condemnation proceeding in Kansas City. Respondent is judge of Division No. 3 of the circuit court of Jackson county, in which division the said condemnation proceeding is now pending. The purpose of this suit is that respondent, as judge of said court, may be prohibited by the writ of this court from further holding cognizance of said condemnation proceeding. A preliminary rule in prohibition was granted upon the filing of the petition. In due time respondent filed his return thereto, and relators filed a demurrer to the return. Upon the issues of law thus presented the case stands before us for decision.
There is a companion case to the case in hand, entitled State ex rel. Tuller et al. v. Seehorn, now under submission in this court, post, p. 568. It was brought at the same time, arises out of the same litigation nisi and is against the same respondent, but the relators therein are the owners of the property sought to be taken for public use in said condemnation proceedings, and they ask this court to issue its writ of prohibition against the respondent upon grounds different from and antagonistic to those relied upon by relators in this case.
The facts admitted by the pleadings herein, and as gathered from the petition and return, are substantially as follows:
In June, 1909, ordinance 3209 was enacted by the common council of Kansas City, for the purpose of widening and improving Sixth street between Broad-way and Bluff streets, and to that end providing for the condemnation of the necessary adjacent property; also creating a benefit district and fixing the limits thereof, in which, for benefits received, the property should be subject to the payment of special tax assessments to meet the costs of the proposed improvement. The municipal court, after a plat of the property to be taken had been delivered to the clerk thereof, made an order, directed to "all persons whom it may concern," appointing a day and place for impaneling a jury to ascertain the compensation for the property to be taken and to make assessments to pay the same, as required by Sec. 2 of Art. 6 of the charter of said city. A copy of the order was published in the proper newspaper, and the parties owning real estate proposed to be taken were duly served with a copy of said order. In accordance...
To continue reading
Request your trial