City of Tarkio v. Clark
| Decision Date | 15 February 1905 |
| Parties | CITY OF TARKIO v. CLARK, Appellant |
| Court | Missouri Supreme Court |
Appeal from Atchison Circuit Court. -- Hon. Gallatin Craig, Judge.
Reversed.
Hunt & Bailey for appellant.
(1) The charter and ordinances of a city stand in the same relation to each other as the constitution and statutes of a State. And the same rules are applicable in the one case as in the other in determining a conflict between the charter and ordinance. In other words, the charter of a city is its constitution. Quinette v. St. Louis, 76 Mo. 402; Kansas City v. Hallett, 59 Mo.App. 160. (2) Section 5993, Revised Statutes 1899, is unconstitutional and violates section 21 of article 2 of the Constitution, in this, that no provision is made, in said section or in said article five of said act, for the payment of the damages. Constitution, art 2, sec. 21; Newby v. Platte County, 25 Mo. 258; Provott v. Railroad, 57 Mo. 256. (3) It nowhere appears on the face of the proceedings that the corporation or the jury assessing the damages, or the city council of Tarkio, or the circuit court, had jurisdiction of this case. (a) The jurisdictional points are these: first, it must be shown on the face of the proceedings that the five jurors appointed by the mayor are disinterested freeholders of the city; second, that said jury acted under oath, faithfully and impartially to make the assessment to them submitted; third that said jury "shall estimate the amount which other persons, owning adjacent property within the limits as hereinafter provided, will be benefited;" fourth, that five days' personal notice shall be given to each of the owners of property lying within the limits; fifth, "the city authorities shall, before appointment of said jury of freeholders, define by ordinance the limits within which private property is deemed benefited by said change enlargement or improvement." This is mandatory. These are the five requisites of the statute, not one of which has been complied with, nor does it appear anywhere on the face of the proceedings that there was even an attempt to comply with any one of them. (b) The jury in their report wind up their finding in this language: "As to other property-owners adjacent to said street, we find that no damages be done by the opening of said street." The statute says they "shall make to the person or persons whose property shall be taken or injured thereby adequate compensation." This finding by the jury is entirely insufficient and the whole proceedings are of no effect. Jamison v. Springfield, 58 Mo. 224; Kansas City v. Bird, 98 Mo. 215; Kansas City v. Morton, 117 Mo. 446. (c) The statute must be strictly complied with. There is no attempt to comply with the statute. Westport v. Jackson, 69 Mo.App. 157; State ex rel. v. School Dist., 79 Mo.App. 103; Orich School Dist. v. Diston, 125 Mo. 439; Independence v. Gates, 110 Mo. 386; Westport v. Smith, 68 Mo.App. 67. (d) Every matter to confer jurisdiction must affirmatively appear upon the face of the proceedings; otherwise they will be void. Fore v. Hoke, 48 Mo.App. 254; Railroad v. Lewright, 113 Mo. 660. (e) The essential steps pointed out by the statute must be strictly pursued, and it must affirmatively appear from the records that all such steps have been taken. Fore v. Hoke, 48 Mo.App. 254; Taylor v. Todd, 48 Mo.App. 550. (f) Since a citizen is entitled, as an individual right, to the enjoyment of his property and the disposal of it on his own terms, and the exercise of the right of eminent domain is in derogation of these rights, and can be justified only on the ground of necessity, the power depriving him of it, even with payment at an estimated fixed price by others, is most extraordinary, and the right should be construed with great strictness. Ellis v. Railroad, 51 Mo. 200; State v. Farrell, 36 Mo.App. 282; Refinery Co. v. Elevator Co., 82 Mo. 121; Thompson v. Railroad, 110 Mo. 147; Railroad v. Clark, 119 Mo. 357. (g) And the statute authorizing it must be strictly adhered to, and every prerequisite to the exercise of the jurisdiction must be observed. Leslie v. St. Louis, 47 Mo. 476; Refinery Co. v. Elevator Co., supra; St. Louis v. Gleason, 89 Mo. 67; St. Louis v. Gleason, 93 Mo. 33; State v. Farrell, 36 Mo.App. 282; Fore v. Hoke, supra. (h) The exercise of eminent domain by cities is not regulated by the code practice in this State, but by special provisions of charter. Kansas City v. Oil Co., 140 Mo. 458; State ex rel. v. School District, 79 Mo.App. 103. (4) (a) It must appear on the face of the proceedings that the jury appointed to assess damages are freeholders of the city. It does not so appear in these proceedings. Fore v. Hoke, 48 Mo.App. 254; State v. St. Louis, 1 Mo.App. 503. (b) It nowhere appears that the jury appointed to assess benefits acted under oath, or that they returned their finding under oath. Cory v. Railroad, 100 Mo. 282. (c) The jury assessed no damages to other persons owning adjacent property. They assessed no benefits to those within the prescribed limit. (d) The city authorities did not define by ordinance, before the jury was appointed, the limits within which private property is deemed benefited. This is mandatory. Railroad v. Railroad, 138 Mo. 591; Kansas City v. Reed, 98 Mo. 215; Sedalia v. Gallie, 49 Mo.App. 392; Cooley's Const. Lim. (2 Ed.), sec. 563. (5) The resolution attempted to be passed by the city council of Tarkio, and found in the proceedings, is a nullity. It is nowhere shown that it was passed with the formalities of an ordinance, or signed by the mayor, or yeas and nays called. It is void and out of this case. Wheeler v. Poplar Bluff, 149 Mo. 45; Westport v. Martin, 62 Mo.App. 647; Eichenlaub v. St. Joseph, 113 Mo. 395; Graham v. Carondelet, 33 Mo. 262. (6) Cities of the fourth class can act only by ordinance. Secs. 5955, 5956 and 5957, R. S. 1899; Hisey v. Charleston, 62 Mo.App. 381; Cape Girardeau v. Fongue, 30 Mo.App. 551; Poplar Bluff v. Hoag, 62 Mo.App. 672; Springfield v. Knott, 49 Mo.App. 612. (7) It is for the courts to determine the validity of an ordinance. Railroad v. Springfield, 85 Mo. 674; Cape Girardeau v. Riley, 72 Mo. 220. A defective ordinance can not be cured by resolutions, however solemnly passed; by the return of the award of the jury; by the journals; or otherwise. It takes an ordinance to cure the defect. St. Joseph v. Wilshire, 47 Mo.App. 125; Bayha v. Taylor, 36 Mo.App. 427.
William R. Little for respondent.
(1) The city council has power to create, open and improve any street, avenue, alley or any other public highway within the corporate limits of the city. Sec. 5990, R. S. 1899. (2) Sections 5990 and 5993, Revised Statutes 1899, are constitutional. Barber Asphalt Paving Co. v. French, 158 Mo. 534. (3) The city council could take private property for public use, either by ordinance or resolution, upon proper compensation to the owner. Secs. 5989 and 5993, R. S. 1899; 158 Mo. 534; 107 Mo. 203. (4) The granting of any power to a municipal corporation carries with it the authority to put that power into effect. If the charter provides for the payment of damages assessed by a jury of freeholders for private property taken for public use, the council will have the right to pass an ordinance appropriating money to pay such damages, even though the charter does not expressly confer such power. Ex parte Marmaduke, 91 Mo. 251; State ex rel. v. Railroad, 164 Mo. 208. (5) The same rule applies to the construction of ordinances as to legislative acts. The ordinance must be construed altogether, and when that is done it becomes plain that the council intended to extend First street east to the corporate limits of the city. The title sets out such fact and cures the defect in the section 2 of the ordinance. St. Joseph v. Porter, 29 Mo.App. 605; State ex rel. v. Hostetter, 137 Mo. 636; Andrew Co. ex rel. v. Shell, 135 Mo. 31. (6) The forms prescribed by law for the passage of statutes are directory, if there is no provision making the statute void, if the said forms are not complied with (Railroad v. Governor, 23 Mo. 253), and the same principle applies to the acts of a municipal corporation. Hence, the resolution adopted by the city council for opening the street in controversy is a sufficient basis to sustain the verdict and judgment in this case. St. Louis v. Foster, 52 Mo. 513; Cape Girardeau v. Riley, 52 Mo. 424. (7) The exercise of the right of eminent domain by cities of the fourth class is not governed by the code but by the statute or charter conferring the power to exercise the right. The record need only show those facts which the statute makes mandatory. The provision that the jury appointed to assess damages shall be freeholders, or shall be sworn before entering on their duties, is not mandatory, and if such facts do not appear in the record, the law presumes that they existed. Kansas City v. Marsh Oil Co., 140 Mo. 458; secs. 5993 and 5990, R. S. 1899; Byne v. Carson, 70 Mo.App. 126; State v. Baty, 166 Mo. 561; Johnson v. Hutchison, 81 Mo.App. 299. (8) The report of the jury of freeholders shows that all parties concerned were served with notice to appear before them and be heard. Defendant Clark waived any defect in the notice to him by appearing before the jury and testifying in the cause. Barnett v. Lynch, 3 Mo. 369; Rice v. Railroad, 3 Mo.App. 27.
Respondent, a city of the fourth class, seeks by condemnation proceedings under the exercise of the right of eminent domain, to extend one of its thoroughfares (First street) by virtue of sections 5990 and 5993, Revised Statutes 1899.
Appellant Clark, owning land taken by the proceedings, appealed to the circuit court of Atchison county from the award of the mayor's jury, and, appearing...
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