City of Kirkwood v. Cronin
| Decision Date | 23 June 1914 |
| Citation | 168 S.W. 674,259 Mo. 207 |
| Parties | CITY OF KIRKWOOD v. M. W. CRONIN et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. G. A. Wurdeman Judge.
Reversed and remanded.
Albert Chandler for appellants.
(1) The appointment of the mayor's jury must be entered on the city records. Then it must be shown on the face of the record that notice has been served on all property owners affected. Both are parts of the record proper, and therefore jurisdictional. Tarkio v. Clark, 186 Mo. 297; Sec 5993, R. S. 1899, now 9415, R. S. 1909. (2) On appeal to the circuit court, if the record confers jurisdiction to proceed there should be a trial de novo; and therein the defendant may demand a jury. Secs. 7579, 7588, 9415, R. S. 1909; Tarkio v. Clark, 186 Mo. 292; Turlow v. Ross, 144 Mo. 240; Drainage Dist. v. Campbell, 154 Mo. 160; In re Bergers' Estate, 133 S.W. 96. (3) The court erred in refusing to receive evidence that the proceeding was not for any public purpose or use. Kansas City v. Hyde, 196 Mo. 512; Railroad v. Railroad, 94 Mo. 542. (4) The courts will take judicial notice that Kirkwood is a municipality organized under a special charter. Kirkwood v. Heege, 9 Mo.App. 576; Laws 1865, p. 415, amended Laws 1869, p. 124; Nutter v. Railroad, 22 Mo.App. 328; Stone v. Halstead, 62 Mo.App. 136. (5) Courts cannot take judicial notice of elections, and the results and regularity of elections, by which towns may attempt to reorganize. If a town asserts that it has succeeded in reorganizing under the general law it must prove it in a condemnation case. It cannot invoke a power of eminent domain granted by general law simply by assuming it. Hopkins v. Railroad, 79 Mo. 98; School Dist. v. Dorton, 125 Mo. 442-3; Felton v. Newport, 92 F.477; Johnson v. Common Council, 16 Ind. 227; Temple v. State, 15 Tex.App. 304.
Robert C. Powell for respondent.
(1) Kirkwood is, and at the time of the proceedings by the city in widening Clinton Place from Webster avenue to Taylor avenue was, a city of the fourth class. Railroad v. Kirkwood, 159 Mo. 250; State ex rel. v. Donworth, 127 Mo.App. 379; Trust Co. v. Pagenstecher, 221 Mo. 121; Kirkwood v. Allen, 138 Mo.App. 480; State ex rel. v. Byrne, 146 Mo.App. 488; Kirkwood v. Edwards, 147 Mo.App. 610; Kirkwood v. Edwards, 162 Mo.App. 580; Gratz v. Kirkwood, 165 Mo.App. 207; Heidorn v. Kirkwood, 169 Mo.App. 158. (2) The record shows that all the necessary steps required by statute were properly taken by the respondent city up to and including the decision and the report of the jury of freeholders and adoption thereof by the board of aldermen of the city of Kirkwood. Sec. 5993, R. S. 1899; Tarkio v. Clark, 186 Mo. 285. (3) That part of Sec. 5993, R. S. 1899, governing appeals to the circuit court from the decision of a jury of freeholders is void for vagueness, indefiniteness and uncertainty. State ex rel. v. Street Railway, 146 Mo. 168; Drake v. Drake, 4 Dev. 115; Ward v. Ward, 37 Tex. 392; Commonwealth v. Bank, 3 Watts & Serg. 173; Sutherland on Statutory Construction, secs. 261, 431; State ex rel. v. Ashbrook, 154 Mo. 375; State v. Whitaker, 160 Mo. 59. (4) Should this court hold, however, that that part of Sec. 5993, R. S. 1899, governing appeals to the circuit court is not void for vagueness, uncertainty and indefiniteness, the appellants lost nothing by the decision of the circuit court in finding in their favor and against the report of the jury of freeholders. If any error existed in the trial court it was harmless error so far as these appellants were concerned, and it is still possible to carry out the order made by the trial court remanding "to the mayor and board of aldermen of plaintiff city for a new inquisition of damages by another jury of freeholders to be appointed." Sec. 4177, R. S. 1899, now 8060, R. S. 1909; Sec. 659, R. S. 1899, now 1850, R. S. 1909.
Respondent, a city of the fourth class, seeks, by the exercise of the right of eminent domain (as provided in Sec. 9415, R. S. 1909), to condemn the private property of appellants and others for the purpose of widening one of the streets (Clinton Place) in said city.
The first step in this proceeding was taken June 10, 1909, when said city by ordinance provided for the widening of said street, etc. A hearing, in which appellants participated, was had before the mayor's jury, consisting of "five disinterested freeholders of the city," duly appointed by the mayor of said city as provided by the foregoing statute.
Afterwards, in August, 1909, appellants appealed from the award or decision of said jury of freeholders to the circuit court of St. Louis county.
When the case came on for hearing in the circuit court, appellants demanded a jury and trial de novo. The court refused the request for a jury and appellants excepted to the action of the court. The court heard evidence with reference to the benefits resulting to, and the damages sustained by, appellants as the owners of the land sought to be taken. Defendants offered to prove that the land was not being condemned for a public use or purpose. The court refused the offer and defendants excepted.
The judgment of the circuit court was as follows: "Now come the parties by their attorneys, and the court having heard the evidence and the arguments of counsel and being fully advised in the premises doth find that the plaintiff as a city of the fourth class instituted condemnation proceedings under section 5993, Revised Statutes of Missouri, 1899, for the purpose of widening a public street known as Clinton Place in said city, and thereby appropriating to the public use lands belonging to each of the defendants, which were properly described in the proceedings of the municipal authorities, a transcript of which proceedings is filed herein, and stands as and for the plaintiff's pleadings, the defendants having duly appealed to this court from the award of the mayor's jury of freeholders; that said award and the compensation allowed defendants thereby for the taking of the lands of defendants Cronin and McCabe, and each of them, is inadequate, unreasonable and confiscatory, and that said mayor's jury failed to allow said defendants any damages for the injury to the balance of the lots and lands of said defendants and that such lots were injuriously affected and damaged by said proceedings; wherefore, it is considered by the court that the judgment, award and finding of said mayor's jury herein be and the same is hereby set aside and for naught held and that this cause be and the same is hereby remanded to the mayor and board of aldermen of plaintiff city for a new inquisition of damages by another jury of freeholders to be appointed herein, in accordance with law, and that the defendants have and recover their costs herein, and have execution therefor."
Appellants duly perfected an appeal to this court. Such further statement of facts as shall be necessary to an understanding of the points involved will be made in the course of the opinion.
I. Appellants contend: (1) That the appointment of the mayor's jury was not entered upon the records of the city as required by section 9415, Revised Statutes 1909; (2) that the record fails to show that appellants were served with notice of the hearing before the mayor's jury.
Appellants' abstract of the record does not set forth in full the transcript of the proceedings made out and certified to by the city clerk when the case was appealed to the circuit court, but sufficient appears from the abstract to show that the appointment of the mayor's jury was made a matter of record in the city clerk's office. The city clerk's certificate to the transcript states that the transcript is "a full, true and complete transcript of the entries," etc., in said proceeding. In the transcript, so certified, is a copy of the written order of the mayor appointing the jury of freeholders which showed that it was filed with the city clerk. Furthermore the written report or decision of the freeholders' jury which is set forth in the transcript expressly recites that the "appointment of said jury of freeholders was duly entered by the city clerk, upon the records of the city under date of June 10, 1909."
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