St. Joseph v. Geiwitz
| Decision Date | 21 February 1899 |
| Citation | 49 S.W. 1000,148 Mo. 210 |
| Parties | St. Joseph v. Geiwitz et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. H. M. Ramey, Judge.
Affirmed.
John Doniphan for appellant Geiwitz.
(1) It was error to affirm part and reject part of the commissioners' report. Railroad v. King, 58 Mo 491. The award allows $ 173.30 as value of the defendant's property taken, damages at $ 100 and charged him with benefits at $ 183.30. The evidence shows the value of the property taken at over $ 2,000, while the damages were about as much as the benefit. (2) Defendant was entitled to a jury of twelve men. Railroad v. Strong, 96 Mo. 611; Railroad v. Miller, 106 Mo. 458; Railroad v Randolph Town Co., 103 Mo. 451; Railroad v Alroth, 13 Mo.App. 91. (3) In assessing benefits, the court in fact held that the five acre tract of defendant Loan, with streets on three sides of it, should pay benefits on a theory as to its value, when platted in small lots. (4) We claim that defendant should be paid for the value of lands taken, irrespective of benefits. Since 1857 the courts of Missouri have followed the opinion of the majority in the case of Newby v. Platte Co., 25 Mo. 258. Judge Leonard in delivering the opinion held that the State had power to assess benefits against the property taken, on account of the power of taxation. We scarcely think that could be held under a strict construction of the present constitution. In that case, Judge Scott dissented, and in several cases since dissenting opinions have been filed, and several decisions rendered without a full court. Since that time many States have formed constitutions requiring the property taken to be paid for, and several have so held from constitutions reading like section 21, article 2, of the Missouri Constitution of 1875. Carpenter v. Jennings, 77 Ill. 250; Iswom v. Railroad, 36 Miss. 300; Elizabethtown v. Helm, 8 Bush. 681; Worfolk v. Railroad, 2 Swan. 422; Harris v. Mason, 57 Texas, 477; Whitehead v. Railroad, 28 Ark. 450; Cleveland v. Wick, 18 Ohio St. 303.
Jas. F. Pitt for appellant Loan.
(1) No other ordinance is contemplated by the act, except that the council may, by section 4 of the act, provide by ordinance for the collection of benefit assessments. The regulation of that matter, aside from the initial step, is all that the act relegates to the legislative discretion of the common council. (2) The central thought of the act of '93 is that the notice to the property owner to appear at the appointment of commissioners brings him into court, and into the proceeding, for all purposes. Not only is this the sole notice prescribed, but the departure from precedent, especially as found in the law for condemnation in railroad cases, shows that this one notice was deemed all sufficient. So that upon inspection of the act of '93 it is plain that the legislature contemplated no hearing to the owner except before the judge, first at the appointment of the commission and second upon exceptions, and that this single notice was sufficient to protect the rights he had, however inconvenient it might be without further notice to watch for the filing of the report and get his exceptions in within the ten days prescribed. The act not only fails to provide for any notice or method of trial before the commission, but by its terms points out that they shall proceed without a hearing. (3) Statutes authorizing the exercise of the power of eminent domain are to be strictly construed, they must provide for a hearing, and the courts are not at liberty to supply their defects. Lewis on Em. Dom., sec. 368; Lowry v. Rainwater, 70 Mo. 159; Clark v. Mitchell, 64 Mo. 577; Cooley's Const. Lim. (6 Ed.), 651; St. Louis v. Ranken, 96 Mo. 507; Williams v. Monroe, 125 Mo. 587; People v. Tollman, 36 Barb. 222. (4) No authority can be found to the effect that notice in the one case will answer for notice in the other. All the authorities require the tribunal to give a hearing, whether the owner may have a voice in its appointment or not. Lewis on Em. Dom., sec. 366; St. Louis v. Ranken, 96 Mo. 497; Stuart v. Palmer, 74 N.Y. 183; Paulsen v. Portland, 149 U.S. 30. (5) The Constitution does not contemplate that either a commission or jury shall proceed without a hearing, and the fact that the commission in this case did so proceed must operate a reversal.
Casteel & Haynes for respondent.
(1) Acts of the Legislature are presumed to be constitutional and it is only when they manifestly infringe on some provision of the Constitution that they can be declared void for that reason. State v. Able, 65 Mo. 357; Phillips v. Railroad, 86 Mo. 540. (2) And in case of doubt every possible presumption, not directly inconsistent with the language and subject, is to be made in favor of the constitutionality of the act. Stephens v. Bank, 43 Mo. 385; State v. Railroad, 48 Mo. 468; St. Joseph v. Crowther, 142 Mo. 155. (3) And, further, all courts presume that the acts of the Legislature are constitutional and the burden is upon him who alleges the contrary to prove it beyond a doubt. State v. Addington, 77 Mo. 110. (4) When the summons provided for is served on a property owner, then he must take cognizance of all succeeding acts of the commissioners. In other words the party is in court for all purposes until the final disposition of the case. (5) As far back as the 25 Mo., at page 535, in the case of Louisiana & Frankford Plank Road Co. v. Pickett, it was held that in assessing damages a common law jury was not required by the Constitution. St. Joseph v. Crowther, 142 Mo. loc. cit. 161. (6) Appellant Geiwitz complains of the action of the court in affirming a part of the report of commissioners. Wherein he was injured by the action of the court does not appear. In fact there is no pretext that he was injured. The act of '93 makes it the duty of the commissioners to assess the value of each piece of property separately that is proposed to be taken for the improvement, together with the damages and benefits arising from the improvement, so that the court may readily find that the commissioners have been just as to a part.
This is a proceeding instituted by the city of St. Joseph, a city of the second class, under the provisions of an act of the General Assembly of the State of Missouri, entitled "An act in relation to the condemnation of private property for public use in cities of the second class," approved March 28, 1893 (Laws of 1893, p. 62), for the purpose of opening and extending Seventeenth street in that city.
After passing an ordinance in pursuance of the act, the city presented its petition to one of the judges of the circuit court of Buchanan county, in vacation, and thereupon a summons was issued which was duly served, notifying defendants that on a day therein named commissioners would be appointed to assess the damages and benefits to their property which was sought to be condemned for, or damaged by reason of, the extension of said street. The commissioners were duly appointed, and made their assessment and return without notice to the property owners, or without giving them any opportunity to be heard before them. By this report the damages and benefits were assessed in gross to each individual owner, but afterwards an amended report was filed making the assessments separately. To this amended report defendants Gottlieb Geiwitz and Emeline E. Loan filed exceptions. The exceptions were overruled and the report of the commissioners approved. After unsuccessful motion for a new trial Geiwitz and Loan bring ...
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