City of Sedalia v. Missouri

• Decision Date: 23 March 1885
• Citation: 17 Mo.App. 105
• Parties: THE CITY OF SEDALIA, Respondent, v. THE MISSOURI, KANSAS & TEXAS RY. CO., Appellant.
• Court: Missouri Court of Appeals

17 Mo.App. 105

THE CITY OF SEDALIA, Respondent,

v.THE MISSOURI, KANSAS & TEXAS RY. CO., Appellant.

Kansas City Court of Appeals, Missouri.

Mar. 23, 1885.

APPEAL from Pettis Circuit Court, HON. JOHN P. STROTHER, Judge.

Affirmed.

Statement of case by the court.

This is a proceeding of condemnation, instituted in 1876, by plaintiff against defendant for the purpose of opening and extending “South Main Street” in said plaintiff city.

It is admitted that all the provisions of the charter and ordinances of the plaintiff, under and by virtue of which the proceedings were had, were complied with, with the single exception to be hereinafter stated. Nor is the existence of any one of the jurisdictional facts necessary to confer authority upon the officers by whom the proceedings were had, disputed.

The exception, above referred to, is in the verdict of the Mayor's jury, which is as follows: “We, the jury, find the property of the Missouri, Kansas and Texas Railway Company damaged over and above the benefits by reason of the opening of South Main Street across its premises, in the sum of three hundred dollars, it being understood that the Missouri, Kansas and Texas Railway Company shall not be required to grade or macadamize said street.

(Signed)

A. Y. HULL, Foreman.”

This verdict was delivered to the Mayor, and by him was returned to the Board of Aldermen of plaintiff, and by them was approved, as provided by said charter and ordinances. This award of the jury, when thus approved, was a final judgment.--Hayne on New Trial and Appeal, vol. 2, 555; R. R. Co. v. Harlan, 24 Cal. 337; R. R. Co. v. Mahoney, 29 Cal. 115; Phillips v. Pease, 39 Cal. 584.

From this judgment in the proper and legal manner the defendant appealed to the circuit court of Pettis county.

The cause was tried by a jury in the circuit court on the 3d day of January, 1882.

Between the time of the appeal from the award approved and the time of the trial in the circuit court, the transcript and record sent up from the City Register's office were lost. In lieu of the lost transcript and record the parties to the cause filed stipulations, and upon these stipulations the cause was tried in the circuit court.

By these stipulations it is made to appear that the verdict of the jury was delivered to the Mayor, “and was by him returned to the Board of Aldermen at their next regular meeting, who approved the same, and ordered said street opened.”

Section 15 of an act of the General Assembly entitled “An Act to revise the Charter of the City of Sedalia, in Pettis county,” approved March 18th, 1873, is as follows:

“Section 15. The Mayor and Board of Aldermen shall have power, when they deem it necessary, upon the petition of the holders of two-thirds of the front of lots in any street, avenue, or alley, or specified part thereof, by ordinance to grade, pave, macadamize, or otherwise improve such street, avenue, or alley, or specified part thereof; and for the payment of the cost of such improvement, the City Register shall levy a special tax on the property fronting on such street, avenue, or alley, according to the respective fronts of lots abutting thereon, according to the amount of the work done in front of or adjacent to such lots, which special tax shall, from the date of its levy, be a lien on, and shall attach to said lots in preference to any prior lien, encumbrance, or mortgage (excepting always the rights of this state), and shall be recoverable and enforced in the manner hereinafter provided.”

Among other testimony in the case introduced by defendant was a statement made by Mr. Montgomery, at one time during the pendency of the condemnation proceedings an attorney for the defendant, which statement was by the agreement of the parties to the cause received as Mr. Montgomery's testimony.

The statement was as follows:

“Mr. Longan agrees to let me make a statement as to the action of the city council upon this award, and waives the necessity of me being sworn; and that is simply, gentlemen, that at two times, I think, since this award was made by the first jury I have presented the matter to the city council and offered to accept that award, if they would confirm it in a manner that would be legal and binding on the city, and they declined to do it. The award, you know, released the railroad company from liability to grade and macadamize that street.” * * * * * * “I say they” (the railroad company) “offered, if the city would make the award valid and binding on them they would accept it. The city was not willing to make the award binding.”

It is not necessary to refer to the instructions given by the court, for the reason that no objection to them is made in this court.

The jury returned a verdict for $350 in favor of defendant. Whereupon the court rendered a general judgment against plaintiff for said sum and costs. By appeal from said judgment, the case has been brought to this court.

For the reversal of the judgment of the circuit court, the defendant urges three reasons:

1st. Because the award of the Mayor's jury was a nullity and under it the plaintiff had no authority to proceed further.

2d. Because the award, as made, never was approved by the Board of Aldermen, but on the contrary said Board refused to approve it as made; hence it stood rejected and the ordinance repealed.

3d. Because the damages are grossly inadequate.

WILLIAM S. SHIRK and THOS. J. PORTIS, for the appellant.

I. The motion for new trial should have been granted for two reasons: 1. The damages awarded are grossly inadequate. 2. The jury, in estimating the damages, disregarded the evidence and the instructions of the court. And the motion for new trial, as well as the motion in arrest, should have been sustained, because (1) the award of the Mayor's jury was a nullity, and under it the city had no authority to proceed further. (2) The award, as made, never was approved by the Board of Aldermen; on the contrary, said Board refused to approve it as made; hence it stood rejected and the ordinance repealed. The city was bound to approve or reject the verdict of the Mayor's jury as an entirety.

II. Not only must the authority to take private property be expressly conferred, but the power must be strictly pursued, and the prescribed mode of its exercise strictly and literally followed.--Dillon, Man. Corp., 3rd. ed. vol. 2, sect. 604 and note 3; Ib. sect. 605; Jamison v. Springfield, 53 Mo. 224.

CHARLES E. YEATER for the respondent.

I. There is nothing in the verdict inconsistent with the instructions. The jury probably took into consideration the remoteness and contingency of the grading and...