Bledsoe v. Stallard

• Decision Date: 20 May 1913
• Citation: 157 S.W. 77,250 Mo. 154
• Parties: HENRY BLEDSOE, Appellant, v. LEWIS M. STALLARD
• Court: Missouri Supreme Court

157 S.W. 77

250 Mo. 154

HENRY BLEDSOE, Appellant, v. LEWIS M. STALLARD

Supreme Court of Missouri, Second Division

May 20, 1913

Appeal from Buchanan Circuit Court. -- Hon. Lucian J. Eastin, Judge.

Affirmed.

James W. Boyd for appellant.

(1) Private property cannot be taken or damaged for public use without a literal compliance with the State Constitution, and all statutory requirements. Leslie v. St. Louis, 47 Mo. 474; Ells v. Railroad, 51 Mo. 200; Anderson v. Pemberton, 89 Mo. 61; Williams v. Kirby, 169 Mo. 628. (2) The county court never had any jurisdiction to make any order concerning the grading of Bledsoe Hill; 1 unless it complied with the requirements of the Act of March 26, 1903; 2, even had it complied with the requirements of said act it had been permanently enjoined from making any order in reference to the grading of said Bledsoe Hill. The temporary writ which was then made perpetual and absolute was to the effect that the defendants, be, and each of them are enjoined and restrained from grading said road where said road runs on, along and adjoining plaintiff's premises until further order of said court. (3) There is no claim made by the respondent, nor can there be any made, that said county court on February 26, 1907, made any order which complied with said section 1 of said act. The alleged order of said date does not pretend to fix any time or any extent or any dimensions. In order that the county court might assume jurisdiction, if we are to go by the statute, it is imperative upon it to fix the time, because the said section says that the court may make an order requiring a public highway to be graded at such time and to such extent as shall be provided by such order entered of record. No time was ever fixed. The county court had no right to make this order unless it had the right to repeal the said section. It could not acquire jurisdiction by ignoring the requirements of this section and it never did acquire jurisdiction because it did not comply with this section, or any part of this Act of March 26, 1903. Neither the circuit court, nor any other court could obtain any jurisdiction in regard to the attempt to grade Bledsoe Hill unless the county court in the first instance complied with the first section of said act. After its failure so to comply with the first section of said act, the county court had no jurisdiction, and no other court could have jurisdiction. (4) The said Act of March 26, 1903, was unconstitutional and never had any force or effect in this State. Constitution, art. 2, sec. 30, and art. 6, secs. 22 and 36; Hulett v. Railroad, 145 Mo. 25; State ex inf. v. Loan & Investment Assn., 142 Mo. 325; State ex inf. v. Kramer, 150 Mo. 89; Turner v. Gregory, 151 Mo. 105; In re Bledsoe Hill, 200 Mo. 630. (a) It undertakes to damage private property for public use without due process of law. The order of the county court which is intended to give the circuit court jurisdiction, was made without any notice; and no notice is by the act required to be served on the party whose land is to be damaged. (b) The act attempts to confer jurisdiction on the circuit court to try the case, and compels it, if the report of the commissioners is confirmed, to enter judgment against the county; and gives the county the right of appeal from this final judgment. It then undertakes to give the county court the right to rescind the order -- that is, to set aside the final judgment of the circuit court. Secs. 3, 9, 11 and 12. The Legislature has no power to authorize the county court to set aside a final judgment of the circuit court. The authority of the circuit court is fixed by the Constitution, art. 6, secs. 22-36. (c) This act fails to provide for any notice to the parties interested as to when and where they may submit proof to the commissioners. To proceed without notice, or to pass a law without a provision as to how or when a notice may be given, is to violate rights guaranteed by our Constitution. (d) The Constitution provides that private property shall not be taken for public use without "just compensation." "Just compensation" is not "compensation abated by the benefits common to the lands in the general community." Any abatement must arise only from benefits peculiar to the land damaged. Railroad v. Baker, 102 Mo. 553; Bennett v. Woody, 137 Mo. 377; Railroad v. Knapp-Stout & Co., 160 Mo. 396; St. Joseph v. Crowther, 142 Mo. 155. (5) The contention here is that the county court never had jurisdiction, the circuit court never had jurisdiction, no notice was ever given for the letting of the said contract to grade Bledsoe Hill, no contract was ever let legally for that purpose, no bond was ever given for grading Bledsoe Hill, and that the pretended effort to grade Bledsoe Hill was without authority of law, null and void and vicious as to said Henry Bledsoe.

C. C. Ferrell for respondent; Duncan & Utz of counsel.

The record in the cause in which appellant's damages for the proposed grading were assessed, shows that appellant had his day in court and contested every point he has sought to raise in this proceeding. That being true, the law is that the judgment rendered by the court having jurisdiction of the parties and the subject-matter, unless reversed or annulled in some proper proceeding, is not open to contradiction or impeachment, in respect to its validity, verity, or binding effect, by the parties or privies in any collateral action or proceeding. 23 Cyc. 1055. This rule applies to collateral impeachment of judgments, decrees or orders made by courts of competent jurisdiction in all kinds of judicial proceedings, such as decrees in equity, judgment or decrees in rem, eminent domain proceedings, etc. Lovitt v. Russell, 138 Mo. 474; Ellis v. Railroad, 51 Mo. 203; Sedalia v. Railroad, 17 Mo.App. 105.

BROWN, P. J. Faris and Walker, JJ., concur.

OPINION

BROWN, P. J.

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, Missouri, 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 land-owners 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, 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, article 2, of the Constitution of Missouri, and section 1 of the Fourteenth Amendment to the Constitution of the United States.

(2) That is 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...