Chicago v. Young

Decision Date18 June 1888
CourtMissouri Supreme Court
PartiesCHICAGO, R. I. & P. RY. CO. v. YOUNG et al.

Rev. St. Mo. § 6935, provides that applications for the establishment of new roads shall be made by petition, signed by at least 12 householders of the township through which the proposed road is to run, 3 of whom shall be of the immediate neighborhood. Section 6936 requires public notice of such application. Held, on certiorari to remove proceedings to open a public road from the county court to the circuit court, when it did not appear on the face of the proceedings that these sections had been complied with, that the proceedings should be quashed, the jurisdictional requisites not being affirmatively shown, although the petition stated the residence of the petitioners as complying with section 6936, and the order reciting the filing of the petition stated that due legal notice of the application had been given.

2. SAME.

Rev. St. Mo. § 6937, relating to opening public roads, recites: "The commissioner shall take the relinquishment of the right of way of all persons who may give such, and make report thereon. The commissioner shall also state in his report the names of all persons who have relinquished * * * or failed to relinquish the right of way, giving the names of both, and the reasons therefor." Held, that this contemplates a conference between the land-owners and the commissioner, which must affirmatively appear on the face of the proceedings before the county court can take jurisdiction to appoint jurors to assess damages.

Appeal from circuit court, Clinton county; GEORGE W. DUNN, Judge.

M. A. Low and Thos. E. Turney, for appellant. A. J. Althouse, for respondent.

SHERWOOD, J.

By certiorari, the Chicago, Rock Island & Pacific Railway Company brought up to the circuit court certain proceedings had in the county court for opening a public road; and, when the proceedings of the county court were thus brought up for revision, moved to quash them for reasons to be presently noticed. This motion was denied.

Whenever the proceedings of a court, summary in their nature, are had with the view to take or condemn the property of a citizen, it must affirmatively appear on the face of such proceedings that all facts necessary to confer jurisdiction existed before final action taken in the tribunal depriving the owner of his property. Such jurisdictional requisites do not affirmatively appear in the case at bar. Aside from a mere statement to that effect in the petition, (Backenstoe v. Railway Co., 86 Mo. 492; Mitchell v. Railway Co., 82 Mo. 106; King v. Railway Co., 90 Mo. 520, 3 S. W. Rep. 217,) it does not appear that 12 of the petitioners are householders of the township through which the proposed road is to run, nor that 3 of them are of the immediate neighborhood, as provided in section 6935; nor that notice of the intended application for the road had been given by hand-bills, etc., 20 days, etc., as required by section 6936. The statement in the order, reciting the fact of the filing of the petition, that due legal notice of the intended application was proved, does not meet the requirements of the statute, nor cause the necessary facts to affirmatively appear. Van Wickle v. Railroad Co., 14 N. J. Law, 162. The fact of notice having been given in the mode pointed out by the statute is as much a jurisdictional prerequisite as is the residence of the statutory number of petitioners. If either be lacking, the jurisdiction fails, and for the obvious reason that such proceedings, being in invitum, in derogation of common law and common...

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53 cases
  • State v. Shelton
    • United States
    • United States State Supreme Court of Missouri
    • March 5, 1900
    ......323, 37 S. W. 1126; State v. Dobson, 135 Mo. 1, 36 S. W. 238; State v. Slover, 113 Mo. 202, 20 S. W. 788; Railway Co. v. Young, 96 Mo. 39, 8 S. W. 776; Hannibal & St. J. R. Co. v. State Board of Equalization, 64 Mo. 294; Snoddy v. Pettis Co., 45 Mo. 361; Rector v. Price, 1 ......
  • Kansas City v. Jones Store Co.
    • United States
    • United States State Supreme Court of Missouri
    • June 3, 1930
    ......Adams. Becher v. Deuser, 169 Mo. 159; Padgitt v. Moll, 159 Mo. 143; State v. Libby, 203 Mo. 596; Young v. Young, 165 Mo. 624; Brown & Biglow v. Heier, 194 S.W. 1071; Fidelity & Deposit Co. of Maryland v. Fulsome, 193 S.W. 620; Thaler v. Niedermeyer, ... St. Louis v. Glasgow, 254 Mo. 262; Myers v. Williams, 199 Mo. App. 21, 199 S.W. 566; Schulte v. Currey, 173 Mo. App. 578; Chicago, R.I. & Pac. Ry. Co. v. Young, 96 Mo. 39; K.C. St. Joseph & C.B. Railroad Co. v. Campbell, Nelson & Co., 62 Mo. 585; Ellis v. Pac. Railroad Co., 51 ......
  • The State ex rel. Kansas & Texas Coal Railway v. Shelton
    • United States
    • United States State Supreme Court of Missouri
    • March 5, 1900
    ...... record was examined by the superior court in the same manner. as if it were being reviewed on writ of error. Railroad. v. Young, 96 Mo. 39; Farmington Co. v. Com'rs, 112 Mass. 212; Groenvelt v. Barwell, 1 Salk. 144; State ex rel. v. Powers, . 68 Mo. 320, l. c. 323; ......
  • Kansas City v. Jones Store Co.
    • United States
    • United States State Supreme Court of Missouri
    • June 3, 1930
    ...... parol testimony of R. C. Adams. Becher v. Deuser, . 169 Mo. 159; Padgitt v. Moll, 159 Mo. 143; State. v. Libby, 203 Mo. 596; Young v. Young, 165 Mo. 624; Brown & Biglow v. Heier, 194 S.W. 1071;. Fidelity & Deposit Co. of Maryland v. Fulsome, 193. S.W. 620; Thaler v. ... judice . St. Louis v. Glasgow, 254 Mo. 262;. Myers v. Williams, 199 Mo.App. 21, 199 S.W. 566;. Schulte v. Currey, 173 Mo.App. 578; Chicago, R. I. & Pac. Ry. Co. v. Young, 96 Mo. 39; K. C. St. Joseph & C. B. Railroad Co. v. Campbell, Nelson & Co., . 62 Mo. 585; Ellis v. Pac. ......
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