48 Mo. 243 (Mo. 1871), Township Board of Education of Tp. 44 v. Hackmann

Citation48 Mo. 243
Opinion JudgeCURRIER, Judge,
Party NameTOWNSHIP BOARD OF EDUCATION OF TOWNSHIP 44, RANGE 12, Respondent, v. JOHN G. HACKMANN, Appellant.
AttorneyEdwards & Son, and G. T. White, for appellant. H. B. Johnson, with A. Budd, for respondent.
CourtSupreme Court of Missouri

Page 243

48 Mo. 243 (Mo. 1871)

TOWNSHIP BOARD OF EDUCATION OF TOWNSHIP 44, RANGE 12, Respondent,

v.

JOHN G. HACKMANN, Appellant.

Supreme Court of Missouri.

July Term, 1871

Appeal from Cole Circuit Court.

Edwards & Son, and G. T. White, for appellant.

The use must be such as is public in its character, and not merely public because declared such. (East St. Louis v. St. John, 47 Ill. 90; Am. Law Reg. 56; id. 164-75; Buffalo & N.Y. R.R. Co. v. Brainard, 5 Seld. 100; 6 How. 545.) " If there is no public necessity, there is no public right, and land taken without such necessity is unlawfully taken, though paid for." (3 Pars. 542; Newby v. Platte County, 25 Mo. 258; Bennett v. Boyle, 40 Barb. 551; 1 Simmons 412; 44 Mo. 540.) No public inconvenience could have been caused by the location not being made in appellant's field, and it operating as a private mischief. ( 44 Mo. 486.)

H. B. Johnson, with A. Budd, for respondent.

I. The statutory provision (2 Wagn. Stat. 1247, § 26) authorizing the condemnation of land for public use as a site for a school-house, is constitutional. ( Curtis, Adm'r, v. Whipple, 24 Wis. 350; Williams v. School District, 33 Verm. 271; Cooley on Const. Lim. 533, and cases cited.)

II. When the use for which property is taken is of a public character, it rests with the wisdom of the Legislature to determine when and in what manner the public security requires its exercise; and with the reasonableness of the exercise of that discretion the courts will not interfere. (Williams v. School District, supra; Charles River Bridge v. Warren Bridge, 11 Pet. 420; Swan v. Williams, 2 Mich. 427; Beekman v. Sar. & S. R.R. Co., 3 Paige 73; Harris v. Thompson, 9 Barb. 350; Hartwell v. Armstrong, 19 Barb. 166.)

III. Whether in this particular case the requisite necessity existed for taking this particular piece of land, was a question of fact to be determined solely by the majority of the voters of the sub-district. (Williams v. School District, supra; Paine v. Leicester, 22 Verm. 44; West River Bridge Co. v. Dix, 16 Verm. 446.)

OPINION

CURRIER, Judge,

This was a proceeding under the statute (Wagn. Stat. 1244, 1247, §§ 12, 20; id. 327-8, §§ 3, 4) for the condemnation of land for a public school-house site. The constitutionality of the law authorizing such condemnation is called in question, and its invalidity, as in...

To continue reading

Request your trial
3 practice notes
  • 51 Mo. 520 (Mo. 1873), Middough v. St. Joseph & Denver City Railroad Co.
    • United States
    • Missouri Supreme Court of Missouri
    • Invalid date
    ...all technical objections to the petition, and the court has jurisdiction of the defendant, ( Township Board of Education vs. Hackman, 48 Mo. 243; Pickering vs. The Mississippi V. N. T. Co., 47 Mo. 457; Thos. R. Fuggle, Admr., vs. Wm. R. Hobbs, 42 Mo. 537.) Doniphan and Baldwin, for Responde......
  • 252 S.W. 404 (Mo. 1923), In re Proceeding to Restrict use of Property Along Gladstone Boulevard
    • United States
    • Missouri Supreme Court of Missouri
    • May 22, 1923
    ...Co. v. Schwarzenbach, 150 N.Y. 76; 1 Lewis, Eminent Domain (3 Ed.) sec. 254, p. 504; 20 C. J. 558, sec. 40; Township Board v. Hackmann, 48 Mo. 243; County Court v. Griswold, 58 Mo. 176; Parker v. Commonwealth, 178 Mass. 199; Laws 1921, pp. 177, 178, 481, 510. (2) If the purpose and object b......
  • 104 N.W. 454 (Iowa 1905), Sisson v. Board of Sup'rs of Buena Vista County
    • United States
    • Iowa Supreme Court of Iowa
    • July 13, 1905
    ...of influence, more or less marked, upon private rights and property interests. Bankhead v. Brown, supra. Township, etc., v. Hackmann, 48 Mo. 243. Perhaps no nearer approach to accuracy in the way of a general statement can be had than to say that the mandate of the Constitution will be sati......
3 cases
  • 51 Mo. 520 (Mo. 1873), Middough v. St. Joseph & Denver City Railroad Co.
    • United States
    • Missouri Supreme Court of Missouri
    • Invalid date
    ...all technical objections to the petition, and the court has jurisdiction of the defendant, ( Township Board of Education vs. Hackman, 48 Mo. 243; Pickering vs. The Mississippi V. N. T. Co., 47 Mo. 457; Thos. R. Fuggle, Admr., vs. Wm. R. Hobbs, 42 Mo. 537.) Doniphan and Baldwin, for Responde......
  • 252 S.W. 404 (Mo. 1923), In re Proceeding to Restrict use of Property Along Gladstone Boulevard
    • United States
    • Missouri Supreme Court of Missouri
    • May 22, 1923
    ...Co. v. Schwarzenbach, 150 N.Y. 76; 1 Lewis, Eminent Domain (3 Ed.) sec. 254, p. 504; 20 C. J. 558, sec. 40; Township Board v. Hackmann, 48 Mo. 243; County Court v. Griswold, 58 Mo. 176; Parker v. Commonwealth, 178 Mass. 199; Laws 1921, pp. 177, 178, 481, 510. (2) If the purpose and object b......
  • 104 N.W. 454 (Iowa 1905), Sisson v. Board of Sup'rs of Buena Vista County
    • United States
    • Iowa Supreme Court of Iowa
    • July 13, 1905
    ...of influence, more or less marked, upon private rights and property interests. Bankhead v. Brown, supra. Township, etc., v. Hackmann, 48 Mo. 243. Perhaps no nearer approach to accuracy in the way of a general statement can be had than to say that the mandate of the Constitution will be sati......