Kansas City v. Mastin
| Citation | 68 S.W. 1037,169 Mo. 80 |
| Parties | KANSAS CITY v. MASTIN et al., Appellants |
| Decision Date | 04 June 1902 |
| Court | United States State Supreme Court of Missouri |
Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.
Affirmed.
R. H Field for appellants.
(1) (a) The provision in section 11 of the park law of Kansas City for the published notice "To whom it may concern," that a jury is to be impaneled "for the ascertaining of the compensation to be paid for the property to be taken or damaged and the amount of benefit, if any, to be assessed therefor," does not require any affirmation or fair implication that all or any lands in the benefit district are actually or especially benefited, or that a judgment establishing a lien against the same for benefit in any sum is to be rendered in such proceeding. It therefore conceals from the interested property-owner more than it notifies him of the real purposes of the proceeding. Such a meager requirement of notice of what is proposed to be done compared to what is authorized to be done therein in the proceeding is not due process of law, and violates the fourteenth amendment to the Constitution of the United States. Billingham Bay & Co. v. New Whatcom, 172 U.S. 318; Reynolds v. Stockton, 140 U.S. 254; Munday v. Vail, 34 N. J. L. 422; Windsor v. McVey, 93 U.S. 283; Brown on Jurisdiction (2 Ed.), sec. 2 a; Williamson v. Childres, 25 Miss. 78; Louisville v. Cochrane, 82 Ky. 15; Burnell v. Thompson, 12 Bush (Ky.) 116; Nabors v. Governor, 3 Stewart & P. (Ala.) 15; Broughton v. Pres. of Bank, 6 Porter (Ala.) 48; Babb v. Underwood, 42 Mo. 483. (b) The requirement that the owner of lands assessed with benefits, on notice by publication shall, within four days' time after the verdict, present all objections to the illegal actions and omissions of the court and jury, whether any such actions or omissions occur in or out of the court, or be known or made known to the property-owner within such time or not, and that, too, whether the proceeding itself be known to the property-owner at that time or not, is a taking of private property without due process of law, and violates the fourteenth amendment to the Constitution of the United States. For this reason the park law of Kansas City, under which this proceeding was instituted, is void. Roller v. Holly, 176 U.S. 398; Hayes v. Douglas Co., 92 Wis. 445; Cooley on Const. Lim., p. 505; Paul v. Detroit, 32 Mich. 109; Railroad v. Mayor, 96 Ga. 680. (2) Article 10 of the city charter violates sections 16 and 17 of article 9 of the State Constitution, because it creates a third house of legislation for Kansas City, in vesting controlling power in the board of park commissioners over the common council. Dissenting opinion in Kansas City v. Bacon, 147 Mo. 301; Commissioners of Wyandotte Co. v. Abbott, 52 Kan. 158. (3) The files in this proceeding do not sustain the record, which recites, that the park board caused the ordinance ordering the condemnation in the circuit court to be filed. On the contrary, the petition instituting the proceeding shows that the ordinance was filed in the name of Kansas City, Missouri, by the city counselor and the attorney for the park board. The circuit court was, therefore, without jurisdiction in this proceeding. (4) The record nowhere recites that the newspaper, in which was published the order of notice in this proceeding, was the newspaper under contract with the judge of the circuit court of Jackson county, for the publication of all notices and orders of publication, and which included the order of notice in question. Sec. 4692, R. S. 1899. The record, therefore, does not show jurisdiction of the circuit court in this proceeding. (5) The proceedings in question are void because there is no statement, in the ordinance filed or elsewhere in the record, showing that the board of park commissioners ever devised and adopted a system of parks, parkways, etc., in Kansas City, Missouri. Sec. 5, art. 10, Kansas City charter; State ex rel. v. Curtis, 86 Wis. 140; In re Blodgett, 52 How. Pr. (N. Y.) 120; Matter of Prot. Ep. Church, 45 N.Y. 178; St. Louis v. Gleason, 93 Mo. 33; Donnell v. Co. Commissioners, 87 Maine 233; Whitehead v. Denver, 13 Colo.App. 134. (6) It does not appear in this proceeding that the common council of Kansas City deemed best to provide for the establishment and acquisition of the lands for the proposed parkway by condemnation. This jurisdictional fact not expressly appearing, the judgment appealed from was unauthorized, and should be reversed. Donnell v. County Commissioners, 87 Maine 225-6; Railroad v. Englewood, 62 N. J. L. 188; State ex rel. v. Curtis, supra; In re Montgomery, 48 F. 896; Whitehead v. Denver, supra; St. Louis v. Gleason, supra; Anderson v. Pemberton, 89 Mo. 65; Sangford v. Few, 146 Mo. 143. (7) The recitals in the judgment show and sanction a dismissal of the proceedings as to the lands of the Belt Railway Company and except such lands from the judgment, though these lands were ordered taken by the ordinance. The judgment upon this and other extraneous matter is illegal and void and for which it must be reversed. Lewis on Em. Dom. (2 Ed.), sec. 505; Kansas City v. Smart, 128 Mo. 294. (8) (a) The recorded acts of the court of receiving the verdict of the jury, computing and stating their time and allowance of service and then permitting them to leave the court and separate on June 8, 1901, without any order to again return or continue as a jury in the proceeding, amounted to a full discharge of the jury from the case on that day. Snell v. Navigation Co., 30 Maine 337; Settle v. Allison, 8 Ga. 201. (b) The verdict of the jury had to stand as made by the jury. The court's action in making the changes therein was unauthorized and illegal. The court's only power was to render a judgment in exact accordance with the verdict by the jury, else to set the verdict aside and grant a new trial. Dyor v. Coombs, 65 Mo.App. 148; Paulson v. Collins, 18 Id. 583; Fine v. Ladd, 29 Oregon 533; Ayers v. Chicago, 149 Ill. 262.
R. E. Ball and C. S. Palmer for respondent.
(1) Many of the questions raised by the brief of appellants, in fact all of them but one, are, in our judgment, finally passed upon and adjudicated in the following decisions Kansas City v. Field, 99 Mo. 352; Kansas City v. Scarritt, 127 Mo. 642; Kansas City v. Ward, 134 Mo. 172; Kansas City v. Duncan, 135 Mo. 571; Kansas City v. Marsh Oil Co., 140 Mo. 458; Kansas City v. Bacon, 147 Mo. 259; Kansas City v. Bacon & Munroe, 157 Mo. 450. The appellants ignore these decisions. They do not recognize that any such opinions were ever rendered by this court. They do not ask to have these decisions overruled as being wrong. They contend as strenuously for propositions of law which this court had pointedly held to be unsound, as they would or could if the court had never passed upon them at all. (2) The two motions to change the record entries of June 8 and September 14 were properly overruled. We have stated, and appellants' brief bears us out in so stating, that the purpose and object of these motions was to have the record show an order of final discharge of the jury on June 8, so that appellants could then make the technical contention that the court had not complied with the charter and had ordered the final discharge of the jury before reviewing the verdict, as the charter required. Appellants could not make this contention on the record as it stood, and so they must needs have it put in such shape as to enable them to do it. To accomplish this they must contend that the court and its clerk did not know what the proceedings of the court were on June 8, and they must have one of the jurors come in and tell the court by his affidavit that the record was false; that neither the judge nor the clerk knew what transpired on June 8; that the judge had violated the law and had, in fact, made an order of final discharge on that date. This is too preposterous to discuss. (3) The notice published was sufficient and in accordance with the charter. Kansas City v. Duncan, supra; Billingham Bay & Co. v. New Whatcom, 172 U.S. 314. (4) Article 10 of the city charter is not unconstitutional as creating a third house of legislation. The proposition that this article is unconstitutional is advanced in disregard of the pointed decision of the court in Kansas City v. Bacon, 147 Mo. 259. (5) The jurisdiction of the circuit court is shown by the records. Appellants claim that the filings do not sustain the recitals of the record. They claim that the record recital stating that the board of park commissioners caused a certified copy of the condemnation ordinance to be filed, was false. On what principle can this court accept the assertions of appellants as to what the filings show? (6) The publication in the paper doing the city printing was the only lawful publication, and the general statute as to judicial notices has no application. Kansas City v. Marsh Oil Co., 140 Mo. 472. (7) The fact that section 5 of article 10 of the charter makes it the duty of the park board to devise and adopt a system of parks and boulevards is not a jurisdictional fact that must appear in every condemnation ordinance. It might just as well be contended that because section 8 makes it the duty of the board to provide at least one park in each park district, any ordinance of condemnation is void if it fails to recite the jurisdictional fact that the board had done so. Section 10 shows what the condemnation ordinance must contain, and the ordinance in question completely conforms to the law. If appellants' argument were sustained, the board never could have begun any proceedings, because it was jurisdictional that everything should have been done before anything was done. (8) That the common council "deemed best" to acquire these lands by...
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