City of St. Joseph v. Geiwitz

• Decision Date: 21 February 1899
• Court: Missouri Supreme Court
• Parties: CITY OF ST. JOSEPH v. GEIWITZ et al.

49 S.W. 1000

148 Mo. 210

CITY OF ST. JOSEPH v. GEIWITZ et al.

Supreme Court of Missouri, Division No. 2.

February 21, 1899.

DUE PROCESS OF LAW — EMINENT DOMAIN — NOTICE — JURY TRIAL — DAMAGES.

1. Act March 28, 1893 (Laws 1893, p. 62), for condemnation of property for city use, does not violate the provision of Const. art. 2, § 30, as not due process of law, because making no provision for notice of when the commissioners would view the premises and pass on the question of damages, but compelling the property owners to take cognizance of all acts taken in the proceedings after service of summons.

2. Report of commissioners on damages and benefits in condemnation proceedings may be confirmed in part.

3. In the absence of constitutional or statutory provision therefor, there is no right to trial by jury in condemnation proceedings.

4. One whose land is condemned for a street is not entitled to be paid the value of the land, and damages to the remainder of the tract, irrespective of benefits.

Appeal from circuit court, Buchanan county; H. M. Ramey, Judge.

Proceeding by the city of St. Joseph to condemn land for a street. Exceptions of Gottlieb Geiwitz and another (two of the defendants) to the report of the commissioners were overruled, and the motion for a new trial denied, and they appeal. Affirmed.

This is a proceeding instituted by the city of St. Joseph, a city of the second class, under the provisions of an act of the general assembly of the state of Missouri entitled, "An act in relation to the condemnation of private property for public use in cities of the second class," approved March 28, 1893 (Laws 1893, p. 62), for the purpose of opening and extending Seventeenth street, in that city. After passing an ordinance in pursuance of the act, the city presented its petition to one of the judges of the circuit court of Buchanan county, in vacation; and thereupon a summons was issued, which was duly served, notifying defendants that, on a day therein named, commissioners would be appointed to assess the damages and benefits to their property which was sought to be condemned for, or damaged by reason of, the extension of said street. The commissioners were duly appointed, and made their assessment and return, without notice to the property owners, or without giving them any opportunity to be heard before them. By this report the damages and benefits were assessed in gross to each individual owner, but afterwards an amended report was filed, making the assessments separately. To this amended report defendants Gottlieb Geiwitz and Emeline E. Loan filed exceptions. The exceptions were overruled, and the report of the commissioners approved. After unsuccessful motion for a new trial, Geiwitz and Loan bring the case to this court by appeal.

John Doniphan and Jas. F. Pitt, for appellants. Casteel & Haynes, for respondent.

BURGESS, J. (after stating the facts).

While it is stated in the brief presented on the part of the defendant Loan that but two grounds are insisted upon for a reversal of the judgment, namely, that the act of 1893 is unconstitutional; and, second, that the commissioners proceeded without giving the defendants an opportunity to be heard on the question of damages, they are substantially but one and the same question, — that is, that the law is unconstitutional, because it makes no provision for notice and hearing before the commissioners, and therefore is taking private property for public use without due process of law, within the meaning of section 30, art. 2, Const. Mo. After the service of the summons issued upon the petition...