City of Savannah v. Hancock

• Decision Date: 14 February 1887
• Citation: 3 S.W. 215,91 Mo. 54
• Parties: City of Savannah, Appellant, v. Hancock
• Court: Missouri Supreme Court

3 S.W. 215

91 Mo. 54

City of Savannah, Appellant, v. Hancock

Supreme Court of Missouri

February 14, 1887

Appeal from Andrew Circuit Court. -- Hon. H. S. Kelley, Judge.

Reversed.

David Rea for appellant.

Instruction number three should not have been given, because of the submission thereby to the jury of the question of public use and even if that question was rightly submitted, the instructions given by the court erroneously stated the law to the jury.

Giddings & Sanders for respondent.

The only power the commissioners had, under this provision of the constitution, was to assess damages, after the property had been constitutionally condemned for public use, without any right in them to condemn private property for public use. These provisions of the state constitution conclusively show that the proceedings of the board of aldermen, in condemning and seizing defendant's private property, without notice to defendant, were unconstitutional, illegal and void.

Black J. Brace, J., absent.

OPINION

Black, J.

The plaintiff is a city of the fourth class, under the general laws of this state. The mayor and aldermen passed an ordinance establishing an alley in block twenty-three, on property owned by defendant, in the rear of a row of business houses fronting upon one of the streets. The ordinance declares that the property taken "shall thereafter be and remain a public alley, in all respects, in the city of Savannah." Commissioners were appointed to assess damages to defendant for the property; and to their report he filed exceptions, in the circuit court, under the provisions of section 4940, Revised Statutes. On trial the circuit court instructed the jury that, whether the contemplated use was really a public use, was a question for them to determine, and for their guidance, various instructions were given in that behalf; verdict for defendant.

The only matter which we need consider is, whether this question should have been submitted to the jury at all. Section 20 article 2, constitution of 1875, provides "that, whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public, shall be a judicial question, and, as such, judicially determined, without regard to any legislative assertion that the use is public." As this is a new section, not found in any of the former constitutions of this state, it may be well to look to the state of the law before its adoption. In County Court of St. Louis v. Griswold, 58 Mo. 175, which was a proceeding to condemn property for a park, these propositions of law were clearly asserted: (1) that, when it was once seen that the land sought to be appropriated under the power of eminent domain is for a public use, then the legislative authority over the subject cannot be supervised or restricted by the courts; (2) that, where it is plainly seen that there is an attempt to procure the condemnation of property for private use, then the courts will declare the law void. It is, also, there said, if it is doubtful or questionable whether the use is public or not, testimony may be heard to determine the fact. These same principles of law had been previously laid down in the case of Dickey v. Tennison, 27 Mo. 373, where it is said: "As we may determine, from the act...