Petet v. McClanahan
| Citation | 249 S.W. 917,297 Mo. 677 |
| Parties | CHARLES H. PETET, Appellant, v. JOHN H. McCLANAHAN et al., Judges of County Court of Buchanan County, et al |
| Decision Date | 06 April 1923 |
| Court | United States State Supreme Court of Missouri |
Appeal from Buchanan Circuit Court. -- Hon. Thomas B. Allen, Judge.
Affirmed.
Perry A. Brubaker for appellant.
The question involved in this case is whether the orders of the county court and the record in this case justified the respondents to take 4.51 acres of land without compensation and without having a jury to assess the damages. We submit that under the Constitution the County of Buchanan cannot take appellant's land in the manner shown by the record in this case. (1) The taking of 4.51 acres of land of the value of three hundred dollars an acre, without any compensation at all, is not the just compensation required by Section 21, Article 2, Mo. Constitution. (2) The taking of 4.51 acres of appellant's land without a jury or board of commissioners of not less than three freeholders being appointed in the manner prescribed by law is contrary to Article 2, Section 21, of the Constitution. (3) So far as appellant was concerned the location of the public road on his land was the establishment of a public road. The law requires, under Sec. 10625, R.S. 1919, that applications for the establishment of all public roads, except state roads shall be made by petition to the county court. No such petition was filed in this case and no notice as required by Sections 10626-7 was given. The whole proceeding is void so far as appellant is concerned. (4) Sec. 10636, R.S. 1919 does not authorize the taking of appellant's land with only the notice mentioned in said section when it is considered in connection with all the other sections in regard to public roads. (5) The provisions of the Constitution in regard to the taking of private property for public uses, that is, Sections 20 and 21 of Article 2, and Section 4 of Article 12, are selfenforcing. The Legislature cannot make any law contravening or overruling the provisions of the Constitution, and if the Legislature does make such a law, the same is void and of no force and effect. Sec. 10636 R.S. 1919, authorizes the county court to take private property without just compensation and without having a jury to ascertain what compensation is just. As the county court followed said section, if it followed any law at all, the proceedings are void and of no force and effect in the taking of appellant's land. Grossman v. Patton, 186 Mo. 668; Shively v. Lankford, 174 Mo. 548; Householder v. Kansas City, 83 Mo. 494; Holmes v. Kansas City, 209 Mo. 528; Railroad v. Inv. Co., 205 Mo. 172; Hickman v. City, 120 Mo. 117; Jamison v. Spring-field, 53 Mo. 224; Chicago Railroad Co. v. McGrew, 113 Mo. 390; Kansas City v. Smart, 128 Mo. 290; In re Essex Avenue, 121 Mo. 103. (6) The Constitution explicitly provides that until the compensation shall be paid to the owner or into the court for his use, the property shall not be disturbed or the proprietary rights of the owner herein divested. It is language so plain and unambiguous that there is no room for construction, and there can therefore be no divestiture of the owner's title or proprietary rights through the exercise of the power of eminent domain except and until actual payment be made of compensation previously ascertained in the manner required by law; until such payment is made the owner's rights remain unimpaired. Jasper Land & Imp. Co. v. Kansas City, 239 S.W. 866; Kansas City v. Ward, 134 Mo. 183; Buchanan v. Kansas City, 208 Mo. 682; State v. Hug, 44 Mo. 116; Peters v. Buckner, and State ex rel. Meadow Park Land Co. v. Buckner, 232 S.W. 1024; Kansas City v. Bacon, 147 Mo. 259; Walther v. Warner, 25 Mo. 277; Jefferson v. Wells, 263 Mo. 231; McElroy v. Kansas City, 21 F. 257; Wilson v. Berkstresser, 45 Mo. 283; Bennett v. Woody, 137 Mo. 377; Walker v. Likens, 24 Mo. 298; Adair Drainage Dist. v. Quincy & Oak, 280 Mo. 256; Greenwall v. Wells & Sons, 239 S.W. 582. (7) Section 30 of Article 2 of the Constitution provides that no person shall be deprived of life, liberty or property without due process of law. The act of the court in not allowing plaintiff damages for the taking of his property, deprives plaintiff of his property without due process of law. No law or procedure in court can deprive plaintiff of his property without compensation and due process of law, as the Constitution provides that property shall not be taken for public uses without "just compensation," which shall be ascertained by a jury of freeholders. The judgment in this case is the taking of plaintiff's property without due process of law.
Culver, Phillip & Voorhees for respondents.
Appellant and all other property owners waived claims for damages, and the appointment of a jury to award damages was unnecesary. Reinert Bros. Co. v. Tootle, 200 Mo.App. 290; Abbott v. Board of Supervisors, 36 Iowa 354; Shearer v. Commissioners, 13 Kan. 134; Cupp v. Seneca County Comrs., 19 Ohio St. 173; County of Sangamon v. Brown, 13 Ill. 212; Curry v. Town Trustees, 15 Ill. 321.
The County Court of Buchanan County in relocating a public road took for that purpose a strip of land fifty feet in width off of one side of plaintiff's farm. This action is to recover the value of the land taken and the consequential damages.
The county court in making the relocation followed, or attempted to follow, the provisions of Section 10636, Revised Statutes 1919. The section, so far as pertinent to the questions at issue, is as follows:
In addition to the portion just quoted the section further provides a procedure for the ascertainment of the damages, when a claim therefor is filed and the county court and the owner are unable to agree upon the amount.
By a subsequent section the words "established" and "establishing" as used in the article relating to public roads are declared to embrace "the locating, relocating, changing and widening of roads."
On April 21, 1919, and during its regular February term, the County Court of Buchanan County, apparently of its own motion, found, and by an order duly entered of record declared its opinion to be, that a public necessity existed for the change and relocation of that portion of the public road known as the St. Joseph-Halls-Rushville-Winthrop Road which lies between the Banker Crossing and Rushville, and that a public necessity existed for the taking and condemning of private property and land for that purpose. On the same day and in connection with such finding and declaration, by order entered of record, the court directed the County Highway Engineer of Buchanan County "to survey, mark out and describe the proposed change and relocated road leading from Banker Crossing to Rushville and to prepare a map of the said proposed road showing the location, courses and distances and the lands across and upon and over which said proposed road shall run and to file said map and a report of his proceedings with the Clerk of the County Court within fifteen days hereafter."
Pursuant to the order just mentioned the County Highway Engineer, on May 12, 1919, filed in the office of the county clerk a report of his proceedings thereunder, which complied with the order in all respects except as to the time within which it was filed. The report not only showed "the location, courses and distances and the lands across and upon which said proposed road would run," but gave the names of the several owners of such lands and particularly described that part of the lands of each that would be required for the purposes of the road.
On June 30th, and during its regular May Term, 1919, the county court, as shown by its record, ordered:
(It was admitted at the trial that the St. Joseph Gazette was a newspaper in general circulation in Buchanan County).
The next record entry with reference to the proposed road was as follows:
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