City of Kansas v. Morse
| Decision Date | 29 June 1891 |
| Citation | 16 S.W. 893,105 Mo. 510 |
| Parties | The City of Kansas v. Morse et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. R. H. Field, Judge.
Reversed and remanded.
Pratt Ferry & Hagerman for appellants.
(1) There was error in overruling the objections to the jurisdiction, because a contract of relinquishment had been made with these appellants under section 4 of the charter. And in support of the proposition the following authorities are cited: Laws, 1875, art. 7, secs. 1-5, pp. 196, 244-245; State v. Snyder, 98 Mo. 555; Paving Co. v Hunt, 100 Mo. 22; State ex rel. v. Mead, 71 Mo 266, 271; Cooley's Const. Lim. [3 Ed.] secs. 74, 78; Lewis on Eminent Domain, sec. 605. (2) For the same reasons, and upon the same citations and arguments, we submit that there was error in overruling the suggestion of diminution of record, and in excluding the offer by these appellants of the contracts of relinquishment. (3) The measure of damages concerning buildings, all or portions of which were within the lines of the proposed street, was not correctly stated to the jury. Bridge Co. v. Schaubacher, 57 Mo. 582; 1 Sutherland on Damages, 148-154; 3 Sutherland on Damages, 445, 447; Hyde v. Middlesex, 2 Gray, 267; Brown v. Worcester, 13 Gray, 31. (4) The court erroneously permitted the jury to call to its assistance the city engineer. Under the charter, section 3, the mayor might so require, but the permission has no application upon a trial in the circuit court.
F. L. Wilkinson for appellant Vineyard.
(1) This is a summary in invitum proceeding in derogation of the common law, and, in such proceedings to divest the owner of his property, the law authorizing it should be strictly construed, and the facts showing jurisdiction must affirmatively appear -- strictissimi juris. Charter Kansas City, art. 7, sec. 5; Anderson v. Pemberton, 89 Mo. 65; St. Louis v. Gleason, 93 Mo. 33; Whitely v. Platte Co., 73 Mo. 30; Schaffner v. St. Louis, 31 Mo. 264; 1 Rorer on Railroads [1 Ed.] chap. 10, sec. 3, p. 291; Cooley's Constitutional Limitations [3 Ed.] p. 395; Dillon's Municipal Corporations [3 Ed.] secs. 604-5. (2) In condemnation proceedings, compensatory damages alone are allowed, and the recovery, therefore, must be confined to the actual damages sustained. Bridge Co. v. Schaubacher, 57 Mo. 582; 49 Mo. 555; 1 Sutherland on Damages [1 Ed.] sec. 1, p. 17; Mills on Em. Dom. [1 Ed.] sec. 167, p. 167. (3) Damage is the loss, hurt or injury sustained in person or property, and in all actions affecting property merely, and sounding alone in damages, as in eminent domain proceedings, the just compensation provided for in article 2, section 21, the state constitution, is the full recompense or remuneration for the loss, hurt or injury occasioned by the taking or damaging of private property for public use. Walther v. Warner, 25 Mo. 277; Commonwealth v. Coomby, 2 Mass. 492; Railroad v. Winslow, 66 Ill. 219; Sater v. Railroad, 1 Iowa, 393. (4) The only theory upon which the assessment of so-called benefits can be upheld as not being repugnant to the constitution is the one that the property is thereby enhanced by the improvement in a sum equal to the assessment imposed. Garrett v. St. Louis, 25 Mo. 505; Tyler v. St. Louis, 56 Mo. 60; Sheehan v. Hospital, 50 Mo. 156. (5) Although the jury is the sole judge of the weight of evidence and the credibility of the witnesses, such latitude is not unbridled authority for arbitrary oppression or the confiscation of property, but is circumscribed and restrained by reason and justice. Nicholson v. Couch, 72 Mo. 209; Watson v. Harmon, 85 Mo. 446; Garrett v. Greenwell, 92 Mo. 125.
R. L. Yeager, W. S. Cowherd and F. H. Dexter for respondent.
(1) The trial court properly overruled the objection to the jurisdiction, for the reason that the record of the proceedings contained in the transcript of appeal did not show any such contracts of relinquishment and proceedings thereunder as to relieve appellants from the liability to assessment by reason of the opening of Main street, under these proceedings, by virtue of Laws of Missouri, 1875, sections 4 and 5, pages 244-246. The appealing from the verdict in the mayor's court waived all questions as to jurisdiction of the person. Com. v. Town, 19 Ill.App. 259; Names v. Com'rs, 30 Mich. 490; Bixby v. Goss, 54 Mich. 551. (2) The alleged contracts of relinquishment were not proper or competent to be considered in the case. The contracts of relinquishment antedated the authority to relinquish. Condemnation proceedings are strictly construed; their limit is the letter of the law governing them. Cunningham v. Railroad, 61 Mo. 33; City v. Gleason, 89 Mo. 67. (3) Where the charter of a municipal corporation authorizes a contract to be made by the corporate body in a certain mode, the officers and agents cannot bind it in any other manner. Keeney v. Jersey City, 11 Am. & Eng. Corp. Cases, 309; Coney v. Freeholders, etc., 2 Am. & Eng. Corp. Cases, 48. (4) The court properly ruled on the measure of damages to Hinchman and Lampe, as allowed by the instructions upon the evidence, and in the admission and exclusion of evidence thereon.
OPINION
This proceeding was commenced before the mayor of the City of Kansas to condemn property for street purposes. The important facts are these:
An ordinance approved on the seventh of October, 1887, provided for opening Main street from Twentieth street to the Grand boulevard. It established the width of the street and fixed the boundaries of the benefit district. Pursuant thereto the mayor made an order for a jury to assess damages and benefits, and the proceedings were continued from time to time. While the proceedings to condemn were pending, the mayor, as party of the second part, made two contracts in the name of the city bearing date May 23, 1888, one with the Kansas City Belt Railway Company, and the other with Adams, Thayer and Morse, whereby the parties of the second part relinquished the land owned by them, sought to be condemned, on condition of exemption from payment of benefits and on certain other conditions. Afterwards and on the twenty-eighth day of May, 1888, the common council passed an ordinance which is in these words: "That the mayor be, and he is hereby, authorized to accept from the Kansas City Belt Railway Company and Charles F. Adams, Nathaniel Thayer and C. F. Morse the relinquishment of the land necessary for the opening of Main street as provided by ordinance * * * approved October 7, 1888, and to accept and bind the City of Kansas to keep and comply with the terms and agreements contained in said relinquishment."
Thereafter the mayor impaneled a jury, and on the fourteenth of June, 1888, the jury returned a verdict. This verdict describes the parcels of land owned by the Belt Railway Company, Adams, Thayer and Morse, and allows them $ 1 as damages for each parcel taken, and assesses them with $ 1 for benefits on each parcel not taken. The verdict also assesses full damages in favor of, and benefits against, various other parcels of land owned by other persons. On the same day the mayor addressed a communication to the council saying: "I herewith submit for your consideration the proceedings and verdict taken and had by the City of Kansas under ordinance * * * approved October 7, 1887." On the twenty-seventh of June, 1888, the common council passed an ordinance confirming "the verdict and proceedings" so reported to them. Thereafter four property-owners, not before named, took the proceedings to the circuit court by appeal.
The transcript filed in the circuit court did not contain the contracts of relinquishment before mentioned, nor did it contain the ordinance of May 28, authorizing the mayor to accept the same. The Belt Railway Company, Adams, Thayer and Morse made proof of the existence of these contracts and the ordinance, but the circuit court declined to order them up as part of the record, when requested so to do, and refused to permit them to be introduced in evidence, and proceeded to assess damages and benefits, disregarding the contracts and ordinances. From these rulings the railway company, Adams, Thayer and Morse appealed.
1. It is sought to justify these rulings on the ground, among others, that the mayor and the contracting parties did not pursue the method pointed out by the charter.
According to section 4 of article 7 of the city charter, when one or more owners of property to be taken shall propose to relinquish such property without claims for damages, on condition of exemptions from payment of benefits, the mayor may be authorized to compromise and agree with such persons as equity may seem to require, "and proceed to condemn such other property as may not be relinquished, * * * and report his proceedings to the common council, anything contained in this act to the contrary notwithstanding."
Section 5 provides: "The mayor shall, after the rendition of the verdict, report the same, together with the proceedings under the last section to the common council; and, if the same be not confirmed within sixty days from the making of such report, the proceedings and verdict shall be void," etc. Appeals are to be taken within twenty days from the time the verdict is confirmed by the council.
As the relinquishments bear date the twenty-third of May, 1888, it is insisted the mayor had no authority to bind the city when he signed them. From the ordinance passed on the twenty-eighth of May, 1888, it is very clear that these contracts had then been prepared, and were before the council; for the ordinance authorized the mayor to accept them and bind the city "to keep and comply with the terms and agreements contained...
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