Bledsoe v. Stallard

• Decision Date: 08 April 1913
• Parties: BLEDSOE v. STALLARD.
• Court: Missouri Supreme Court

157 S.W. 77

BLEDSOE v. STALLARD.

Supreme Court of Missouri, Division No. 2.

April 8, 1913.

Rehearing Denied May 20, 1913.

1. CONSTITUTIONAL LAW (§ 281) — EMINENT DOMAIN (§ 182) — DUE PROCESS OF LAW — PUBLIC ROADS — CHANGE OF GRADE — NOTICE — HEARING.

Laws 1903, p. 148, providing a scheme for assessing damages which may accrue to landowners from changes in the grade of public roads declares (section 2) that the county court, after making the order to grade a public road, shall give notice of the proposed grade for four successive weeks by publication in a newspaper printed in the county. Section 3 requires that the county clerk after such publication shall file a certified copy of the order and proof of publication with the circuit court; and section 5 declares that, after the receipt of the copy of the order of the county court and proof of publication, the circuit court shall cause additional notice fixing the "day and place" where the hearing will be given to ascertain damages which will accrue from such grading, which notice shall be directed "to all whom it may concern," without naming them, and be published once a week for four successive weeks in some newspaper published in the county; the last insertion to be not more than one week before the day fixed for hearing. Held, that the two notices required to be so published were sufficient in form to notify the landowners of the particular public road which the county court was attempting to grade, and that the act was therefore not unconstitutional as depriving landowners of their property without due process of law in failing to provide sufficient notice.

2. EMINENT DOMAIN (§ 182) — TAKING AND DAMAGING PROPERTY — NOTICE — PERSONAL SERVICE.

Personal service is not necessary in proceeding to condemn land or to damage the same for a public use in order to provide due process of law.

3. EMINENT DOMAIN (§ 71) — DAMAGING PROPERTY — "JUST COMPENSATION" — STATUTES.

Laws 1903, p. 148, authorizes the assessment against counties of damages accruing to landowners by change in the grades of highways, and section 7 provides that the commissioners provided for shall be sworn to ascertain and report the actual damages or "just compensation" to be paid in each case separately under proper instructions; that they shall ascertain and state in their report the amount of actual damages to each piece of private property that will be damaged by reason of the proposed grade, having due regard to and making just allowance for all benefits to such piece of property from such grading, and when the damages do not exceed the benefits the commissioners shall not report any allowance of damage to such particular piece. Held that, since "just compensation" required by the Constitution to be paid to landowners whose property is damaged for public use is the actual damages to the property, less the benefits accruing from the public use to which it is subjected, which benefits must be special to the property damaged and not common to other lands in the neighborhood, the "just compensation" required by the Constitution was the same as that provided for in such act, and hence it would not be held unconstitutional as authorizing the taking or damaging of private property without just compensation.

4. CONSTITUTIONAL LAW (§ 48) — DETERMINATION OF CONSTITUTIONALITY.

Courts will not hold a statute unconstitutional unless it contravenes the organic law in such a manner as to leave no doubt as to its unconstitutionality; it being the duty of the court to read the Constitution into all statutes, and, if that may be done without doing violence to the word or spirit of the statute, it is constitutional.

5. EMINENT DOMAIN (§ 172) — CHANGE OF GRADE — STATUTES — JURISDICTION.

Laws 1903, p. 148, providing for the assessment against counties of damages accruing to landowners for changes in the grade of public roads and authorizing county courts to institute proceedings to change the grade of public roads, did not violate Const. art. 6, §§ 22, 36, in providing that, after the proceeding had been instituted it should be transferred to the circuit court for hearing of damages.

6. EMINENT DOMAIN (§ 306) — HIGHWAYS — CHANGE OF GRADE — TAKING AND INJURING PRIVATE PROPERTY — STATUTES.

The right to take or injure private property for public use is never transferred by the sovereign, and in this country, the state being the sovereign, the right is always reserved to the state, so that the fact that an injunction had been obtained restraining the lowering of the grade of a highway because there was no statute authorizing the taxation of consequential damages in favor of plaintiff, whose lands would be injured by changing the grade, did not prevent such change after the enactment of a proper statute providing for the award and assessment of damages.

7. EMINENT DOMAIN (§ 243) — CONCLUSIVENESS — FAILURE TO APPEAL.

Where a landowner failed to appeal from a judgment awarding damages to his property by change in the grade of a highway, all alleged errors in that proceeding were waived and could not subsequently be made the basis of an injunction suit to restrain the change of the grade.

8. HIGHWAYS (§ 113) — CHANGE OF GRADE — CONTRACT.

The fact that a highway engineer, pursuant to proceedings for the change of the grade of a highway, had made a mistake in advertising the contract to grade the road was no ground for an injunction restraining the doing of work at the instance of an abutting landowner.

Appeal from Circuit Court, Buchanan County; Henry M. Ramey, Judge, and W. D. Rusk, Special Judge.

Action by Henry Bledsoe against Lewis M. Stallard. Judgment for defendant, and plaintiff appeals. Affirmed.

Injunction to restrain defendant from lowering the grade of a public road. From a final judgment for defendant, plaintiff appeals.

The plaintiff owns some farm lands in Buchanan county, Mo., adjoining what is known as the Union Public Road. Plaintiff's dwelling house and other buildings are situated on a hill, and he contends that, if defendant is permitted to lower the grade of said road on said hill in front of plaintiff's buildings, he will be irreparably injured.

In the year 1902 the proper authorities of Buchanan county undertook to lower the grade of the aforesaid public road in front of plaintiff's property, whereupon he instituted an action against Buchanan county and the judges of the county court and surveyor of said county, in which action he obtained a final judgment restraining the defendants in that action from lowering the grade of said public road in front of his property. This injunction seems to have been granted, because at that time there was no statute in Missouri authorizing the taxation of consequential damages in favor of persons who might be injured by changing the grades of public roads in front of their lands. In the year 1903 the General Assembly enacted a law which provided a scheme for assessing against the counties the damages which may accrue to landowners from changes in the grades of public roads. Laws 1903, p. 148. After the enactment of this law, to wit, on February 26, 1907, the county court of Buchanan county caused a proceeding to be instituted to assess the damages which would accrue to plaintiff by lowering the grade of said Union Public Road in front of his lands. Defendant appeared and, by appropriate pleadings and proceedings, resisted that action, alleging, among other defenses, that the act of 1903 was unconstitutional. That case proceeded to final judgment and resulted in the damage to plaintiff Bledsoe's land being assessed at $500, from which judgment he (Bledsoe) attempted to appeal to this court, but his appeal was not taken within the time required by law and was dismissed (222 Mo. 604, 120 S. W. 1184), thereby leaving the judgment of the circuit court in full force. The appellant (Bledsoe) refused to accept the $500 damages awarded to him, and on the 29th day of November, 1909, the defendant (Stallard), acting as highway engineer of Buchanan county, having advertised to let a contract for lowering the grade of the public road in front of plaintiff's property, he brought the present action of injunction, the chief object of which is to test the constitutionality of the act of 1903, under which the damages were assessed.

In the present action the plaintiff (Bledsoe) challenges the constitutionality of the act of 1903 on the same grounds which he unsuccessfully interposed in the proceeding to assess his damages, to wit:

(1) That the act of 1903 deprives plaintiff of his property without due process of law, contrary to section 30, art. 2, of the Constitution of Missouri, and section 1 of the fourteenth amendment to the Constitution of the United States.

(2) That it violates section 21 of article 2 of the Constitution of Missouri in that it prescribes a method whereby private property may be damaged without just compensation.

(3) That it violates sections 22 and 36 of article 6 of the Constitution of Missouri in that it provides for instituting the proceeding to assess damages in the county court and then transferring the same to the circuit court.

(4) That it further violates sections 22 and 36 of article 6 of the Constitution of Missouri in that it authorizes the county court to set aside the judgments of the circuit court in cases where the award of damages is unsatisfactory to the county court. Respondent insists that, all these constitutional questions having been interposed by plaintiff (Bledsoe) in the proceeding to lower the grade of the public road and assess the damages which will accrue to plaintiff from such change of grade, the judgment in said former proceeding is res adjudicata in this action.

Passing over, without deciding, this issue of res adjudicata, we will attend to the constitutional questions which plaintiff sought to raise in the former proceeding. If the law be constitutional, then the former judgment must needs be a...