State ex rel. Summerson v. Goodrich

Citation165 S.W. 707,257 Mo. 40
PartiesTHE STATE ex rel. ELIZABETH SUMMERSON et al. v. JAMES E. GOODRICH, Judge of Circuit Court, and KANSAS CITY
Decision Date02 April 1914
CourtUnited States State Supreme Court of Missouri

Writ quashed.

Piatt & Marks for relators.

(1) The passage of an ordinance and the filing of a certified copy thereof were conditions precedent to the making of any order whatsoever by the circuit court and because of the city's failure to comply with the charter requirements in that regard the circuit court was without jurisdiction or authority to issue summons or to appoint commissioners, and its orders so doing should be quashed. Kansas City Charter (1908), art. 6, sec. 17; Ibid., art. 7, sec. 5; State ex rel. v. St. Louis, 67 Mo. 113; St. Louis v Franks, 78 Mo. 41; Kansas City v. Ford, 99 Mo 91; St. Louis v. Gleason, 89 Mo. 67, 93 Mo. 33; School Dist. v. Dorton, 125 Mo. 439; St. Louis v. Koch, 169 Mo. 587; City of Tarkio v. Clark, 186 Mo. 285; Williams v. Kirby, 169 Mo. 622; In re Bledsoe Hill, 200 Mo. 643; Whiteley v. Platte Co., 73 Mo. 30; Zimmerman v. Snowden, 88 Mo 220; Spurlock v. Dornan, 182 Mo. 250; Railroad v. Young, 96 Mo. 43; Anderson v. Pemberton, 89 Mo. 61; Kansas City v. Smith, 238 Mo. 330. Section 18, article 7, of the charter, upon which respondent relies for authority to maintain these proceedings, does not dispense or purport to dispense with the necessity of passing and filing a certified copy of an ordinance as required by the two sections of the charter above cited, but simply attempts to authorize an additional method for ascertainment of damages. Said section 18, article 7, is so limited both by its title and by its terms. (2) The filing of a certified copy of the ordinance being essential to jurisdiction of the subject-matter in proceedings instituted under the Charter of 1908, a record failing to affirmatively show compliance with said requirement shows on its face that the court had not acquired jurisdiction of the subject-matter, notwithstanding a general recital in the order appointing commissioners that "the court finds plaintiff has complied with all the conditions of the charter of Kansas City and the statutes of Missouri." Leonard v. Sparks, 63 Mo.App. 597; State ex rel. v. Duncan, 150 Mo.App. 413; Kansas City v. Smith, 238 Mo. 330. And the conclusion so recited being flatly contradicted by the record itself, the latter controls. Crow v. Meyersieck, 88 Mo. 411; Cloud v. Pierce City, 86 Mo. 367; Adams v. Cowles, 95 Mo. 652; Blodgett v. Schaefer, 94 Mo. 652; Milner v. Shipley, 94 Mo. 106; Laney v. Garbee, 105 Mo. 355; Feurt v. Caster, 174 Mo. 303. (3) Even if the city were authorized to institute these proceedings under the provisions of article 7, chapter 12, R. S. 1899, (now Art. 2, chap. 22, R. S. 1909), still this record should be quashed for the reason that there was no finding made by the court upon the issue whether or not relators had an opportunity to agree and could not agree with the city as to damages. That issue tendered by the petition, was squarely joined by the answers of relators, and the court was without authority to appoint commissioners until it was first found to be a fact that the parties could not "agree on the proper compensation." R. S. 1909, sec. 2360; Lind v. Clemens, 44 Mo. 540; Leslie v. St. Louis, 47 Mo. 478; Ells v. Railroad, 51 Mo. 200; United States v. Reed, 56 Mo. 565; Railroad v. Campbell, 62 Mo. 585; Railroad v. Young, 96 Mo. 39; Tarkio v. Clark, 186 Mo. 299; Kansas City v. Smith, 238 Mo. 330. (4) If the proceeding in the circuit court was a "civil action," within the meaning of our code of civil procedure, then the new matter pleaded in relators' answers should have been taken as confessed, for failure of plaintiff to reply thereto. State ex rel. v. Riley, 203 Mo. 175; R. S. 1909, sec. 1810. Relators had the right to tender the issues of fact pleaded in their answers, to-wit, that the proceedings are ultra vires because instituted for the private and exclusive benefit of the Kansas City Terminal Railway Company, and that no attempt had ever been made by the city to agree with relators as to compensation, which issues the court was bound to determine before commissioners could lawfully be appointed. By ignoring these issues and appointing commissioners without any finding upon said questions of fact, the court clearly overstepped and exceeded its powers. Railroad v. Railroad, 94 Mo. 543; State ex rel. v. Engelmann, 106 Mo. 633; Kansas City v. Smith, 238 Mo. 330.

Andrew F. Evans and Francis H. Hayward for respondents; Samuel W. Moore, Samuel W. Sawyer and Clarence S. Palmer of counsel.

(1) Certiorari does not lie. State ex rel. v. Walbridge, 123 Mo. 532; State ex rel. v. Edwards, 104 Mo. 125; State ex rel. v. Snyder, 47 Mo.App. 675; State ex rel. v. Shelton, 154 Mo. 693; Railroad v. Railroad, 94 Mo. 535; Clemons v. Insurance Co., 184 Mo. 46; Smith v. Sedalia, 244 Mo. 107. (2) Under the provisions of the charter of Kansas City, the filing in the circuit court of the ordinance providing for the proceeding to ascertain damages was not only unnecessary but would have been improper. Charter of Kansas City, art. 7, secs. 4-18; R. S. 1909, chap. 22, art. 2; 1 Lewis, Em. Dom. (3 Ed.), sec. 404; Kansas City v. Duncan, 135 Mo. 571. (3) The alleged failure to agree with the defendants does not affect the validity of the proceeding. R. S. 1909, sec. 2360; Cory v. Railroad, 100 Mo. 291; Railroad v. Townsite Co., 103 Mo. 469; Bridge Co. v. Stone, 194 Mo. 187; Kansas City v. Mastin, 169 Mo. 92; Kansas City v. Block, 175 Mo. 433; St. Louis v. Lanigan, 97 Mo. 179; Blair v. Railroad, 89 Mo. 395; Green v. Walker, 99 Mo. 68; Turley v. Edwards, 18 Mo.App. 681; 3 Cook on Corporations (6 Ed.), sec. 741; State v. Superior Court, 91 P. 639; Same Title, 92 P. 269, 93 P. 423; Bridge Co. v. Stone, 194 Mo. 187.

OPINION

In Banc

Certiorari.

WALKER J.

-- This proceeding is based upon a writ of certiorari issued out of this court to the circuit court of Jackson county.

On October 2, 1912, one of the respondents, as plaintiff in the original action, to-wit, Kansas City, through its counsel, filed in said circuit court a petition praying for the appointment of commissioners to assess whatever damages might be sustained by owners of certain lands abutting on Independence avenue in said city by reason of the grading of said avenue, and to fix the compensation to which said owners were entitled on account of said grading. This petition was filed under the authority of section 18, article 7, Charter of Kansas City of 1909, which is as follows: "In addition to the method hereinbefore provided in this article for ascertaining the damages, if any, arising from proposed grading or regrading of any street, avenue, alley or public highway, or part thereof, whenever the city shall deem it necessary, and by ordinance so determine, it may adopt the same procedure for ascertaining the damages caused by such grading or regrading as is prescribed in the general laws of the State for the appropriation and valuation of lands taken for telegraph, telephone, gravel and plank or railroad purposes, being article 7 of chapter 12 of the Revised Statutes of Missouri of 1899. Upon paying to the clerk of the circuit court the amount of damages awarded, the city shall have the right to proceed with such grading or regrading, notwithstanding the filing of exceptions to such award, and any subsequent proceedings shall only affect the amount of compensation to be paid." [Now Art. 2, chap. 22, R. S. 1909.]

On the day the petition was filed, a summons was issued for the defendants, who were the abutting property owners, returnable October 16, 1912.

On the return day the defendants appeared and through counsel made return by a motion to dismiss and quash the proceedings, which motion was by the court on October 17, 1912, overruled. On October 18, defendants filed separate answers to the petition, and on October 19, 1912, commissioners were appointed by the court to assess the damages and fix the compensation to which the abutting owners were entitled by reason of the grading of said avenue.

The commissioners were appointed and sworn, whereupon defendants, who are the relators here, applied for and were granted a writ of certiorari to bring the record before this court for review.

The petition filed herein to determine the damages for the grading of said Independence Avenue is substantially as follows:

It states the incorporation of plaintiff and certain of the defendants, and alleges the authority of Kansas City, under its charter, to open and establish public streets, provide for the grading or regrading of same, and for the payment of damages caused thereby to abutting property owners, and avers its authority to institute, in the circuit court, proceedings to determine any damages which may result to private property, if any, by the grading or regrading of any avenue alley, etc. It further alleges that by an ordinance, therein designated by number, entitled, "An ordinance providing for and authorizing the work of grading Independence Avenue from a point," etc. -- here follows a particular description of the part of said avenue to be graded -- according to the grade established and the width provided in the ordinance referred to; that defendants are the owners or claim to be the owners, or claim an interest in the lands abutting upon said portion of said avenue required to be graded by said ordinance -- following this the tracts of land owned or claimed to be owned by said defendants are particularly described, according to government subdivisions. It is further alleged that said land may be disturbed or damaged by said grading, and that the owners have not waived all right or claim to damages, and may be entitled to remuneration...

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