City of Kansas City v. Marsh Oil Co.

Decision Date06 July 1897
PartiesCITY OF KANSAS CITY v. MARSH OIL CO.
CourtMissouri Supreme Court

5. An ordinance of the city of Kansas City for assessments of damages for land taken to widen a street provided that they should be paid in one installment, as provided by the city charter amendment (article 10, § 21) for the payment of assessments made payable in one installment. Such section provides that the assessments paid in one installment shall be paid, without interest, within 60 days after judgment of confirmation, and, if not so paid, shall bear interest at 15 per cent. Held, that the ordinance sufficiently described the time and manner of the assessment.

6. Hypothetical questions may be propounded to experts on cross-examination to test their knowledge.

7. During a trial one counsel said: "Well, just consider everything I ask the witness and every other witness objected to, for any and every reason that you can think of, and let us get along with this case." Held insufficient to avoid the necessity of specific objections to evidence and exceptions.

8. A new trial sought by a corporation on the ground of newly-discovered evidence is properly denied where there is simply the affidavit of the witness as to what he will swear to, and no affidavit of any one connected with or interested in the company.

In banc. Appeal from circuit court, Jackson county; Charles L. Dobson, Judge.

Proceedings by the city of Kansas City to condemn real estate to widen a street. From a judgment confirming the assessment of damages, the Marsh Oil Company appeals. Affirmed.

Frank Titus, for appellant. C. O. Tichenor, D. J. Haff, and C. S. Palmer, for respondent.

GANTT, J.

This is an appeal from the judgment of the circuit court of Jackson county in a proceeding instituted and prosecuted to condemn real estate to widen a street, under and by authority of article 10 of the charter of Kansas City, as amended June 6, 1895, in the manner provided by section 16 of article 9 of the constitution of Missouri, authorizing any city having a population of more than 100,000 inhabitants to frame a charter for its own government, and thereafter amend the same by a proposal therefor made by the lawmaking authority of such city, and duly published and accepted by a three-fifths vote of the qualified voters voting at a general or special election, "and not otherwise." It was begun in the circuit court of Jackson county, as provided by said charter amendment, by the filing of a certified copy of an ordinance of Kansas City, duly and legally passed, upon the recommendation of its board of park commissioners, selecting and designating certain lands for a boulevard, as shown by a map filed by the city engineer with said park commissioners. Article 10 of the charter of Kansas City, as amended, provides that, if any incorporated company shall be entitled to a trial of its claim for land condemned or damaged by a common-law jury of 12 men, it shall have the same by filing a petition therefor prior to the day set for the hearing and impaneling of a jury of freeholders. Appellant, being a corporation, demanded a jury of 12, which the court accorded to it. The jury estimated its damage at $11,000. In due time, it filed a motion for new trial and in arrest of judgment, and, after the expiration of four days, offered to file a supplementary motion for new trial, to which the city objected, but which the court permitted. Its motions were overruled, and the remainder of the case, as to other property, having been heard by the freeholders, and the verdict of the common-law jury having been adopted by said freeholders, jury, judgment of confirmation was entered May 22, 1896, and the Marsh Oil Company alone appeals to this court.

1. It is asserted with much confidence, seemingly, by counsel for defendant, that the power of eminent domain, as assumed and exercised by Kansas City in this and kindred cases, is ultra vires, and therefore without the sanction of law. If defendant is right, his discovery is quite out of the ordinary, — little less, indeed, than startling, in view of the great number of cases which have been considered by this court involving the exercise of eminent domain by the cities of St. Louis and Kansas City, because we think the two charters are strikingly alike in this feature of each. Proceeding to an examination of this contention, we find it asserted that "outside of this purported amendment (article 10) there is nothing in the charter itself warranting the exercise of the power of eminent domain by the common council," and "said amendment is void because not in harmony with and subject to the constitution and laws of Missouri." The right of eminent domain is inherent in every government. In this state it is not conferred, but is limited by the constitution. The necessity and expediency of exercising the right are political or legislative in character; its enforcement, judicial. It is not pretended that this power is inherent in a municipality created by the state. It must be conferred by the state. The city insists, however, that a municipal corporation may be constitutionally invested with the power of eminent domain, subject to constitutional restrictions; and the state may delegate to the city the power to open and establish, by compulsory acquisition or purchase, such streets or parks as the council may judge to be expedient or necessary, and to widen or extend streets already laid. Of this there can no longer be a reasonable doubt in Missouri. Has the state conferred such power upon Kansas City? Section 16 of article 9 of the constitution of Missouri of 1875 provides that "any city having a population of more than one hundred thousand inhabitants may frame a charter for its own government consistent with and subject to the constitution and laws of this state"; and, if such charter shall be adopted by four-sevenths of the qualified voters of such city at a general or special election, "it shall become the charter of such city, and supersede any existing charter and amendments thereof." By the same article of the organic law of the state, provision is made for amending said charter by a proposal therefor made by the lawmaking authorities of the city, and notice thereof, and on acceptance of such proposed amendments by three-fifths of the qualified voters of said city at a general or special election, "and not otherwise." No limitation is placed upon the character of the charter save and except that it shall always be in harmony with and subject to the constitution and laws of the state. Availing themselves of this constitutional offer, the citizens of Kansas City elected a board of 13 freeholders, which framed a charter for said city, which was adopted April 8, 1889. Section 1 of article 1 of said charter empowers said Kansas City, among other things, "to acquire and hold, by gift, devise, purchase, or by condemnation proceedings, lands and other property for public use, either within or beyond the corporate limits of said city for waterworks to supply the city with water; for gas works or other means of lighting to supply the city with light, for public parks, cemeteries, penal institutions, sewers, or for any other public use," etc. Article 7 of the charter provides in detail the method of procedure for condemning lands "for establishing and opening any public park," "or for establishing, opening, widening, extending or altering any boulevard, street, avenue, alley," etc., and providing for the hearing and determination of such cases by the mayor's court and by the circuit court on appeal. Article 10 of the charter, as amended on June 6, 1895, by the qualified voters of said city, and an act of the legislature approved March 10, 1887, provides the exclusive method of exercising this right to acquire land for boulevards and parks; so that the power to condemn lands for such purposes is plainly conferred by the constitution and the charter framed in pursuance thereof. The authorities cited by the learned counsel for defendant as to the necessity of a grant of power have no application to a city charter which derives the...

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