Householder v. City of Kansas

• Citation: 83 Mo. 488
• Parties: HOUSEHOLDER et al. v. THE CITY OF KANSAS, Appellant,
• Decision Date: 31 October 1884
• Court: United States State Supreme Court of Missouri

83 Mo. 488

HOUSEHOLDER et al.

v.THE CITY OF KANSAS, Appellant,

Supreme Court of Missouri.

October Term, 1884.

Appeal from Jackson Circuit Court.--HON. T. A. GILL, Judge.

AFFIRMED.

R. H. Field for appellant.

(1) It has been repeatedly held in this state that a municipal corporation is not liable for damages resulting from a change in the grade of its streets, unless the work was done negligently or unskilfully. Schattner v. Kansas City, 53 Mo. 162; Wegman v. Jefferson City, 61 Mo. 55. There is no such allegation in the petition and it states no cause of action unless the action is authorized by sec. 21 of art. 2 of the constitution of 1875. (2) This provision of the constitution does not justify the action. A constitutional provision which merely announces a principle and which is not self-executing per se without the aid of any legislation creates no actionable liability. Fusz v. Spaunhorst, 67 Mo. 256; French v. Teshemaker, 24 Cal. 518; Watson v. Trustees, 21 Ohio St. 667; Cooley's Con. Lim. (5 Ed.) top p. 99. Constitutional provisions are rarely sufficient to execute themselves without the aid of legislation. It is the exception and not the general rule to find them self-executing. Railroad v. Buchanan Co., 39 Mo. 485. Bowie v. Lott, 24 La. Ann. 214. The first test for determining whether a constitutional provision is self-executing or self-enforcing is, “is it in and of itself complete?” and a second test is, “will it operate in all instances and under all circumstances?” Authorities cited, supra. The provision contemplated needed legislation to make it effective. Werth v. Springfield, 78 Mo. 110; People v. Supervisors, 3 Barb. 332; Debates on Constitution, p. 83; Schedule to Constitution, § 15; Cooley's Con. Lim. (5 Ed.) 70, 71 and note to 72; Potter's Dwarris Stat. and Con. 189. If the section of the constitution cannot operate in every instance and under all circumstances, it would seem too clear for argument that it does not enforce itself. Fusz v. Spaunhorst, supra; French v. Teshemaker, supra. (3) This case is not of that class in which it can be held that because the legislature has failed to provide a remedy, that, therefore, resort to a common law action can be had. Cole v. City of Muscatine, 14 Ia. 296; Heiser v. Mayor, &c., 29 Hun. (N. Y.) 446; Moore v. White, 45 Mo. 207-8: State v. Ford, 70 Mo. 269. (4) This section is self-executing and complete when regarded as rely prohibitive, or a limitation, or as an abrogation of inconsistent laws, but no further. Oakley v. Trustees, 6 Paige Ch. (N. Y.) 262; R. R. Co. v. Owings, 15 Md. 199; Com. v. R. R. Co.,29 Pa. St. 159; Railroad Co. v. Railway Co., 69 Mo. 65; Thompson v. Railroad Co., 3 How. (Miss.) 240; Dillon Mun. Corp. (3 Ed.) 969. It was the power granted in its charter that previously gave the city immunity from liability for changing the grade of its streets. Wegman v. Jefferson City, 61 Mo. 55. If there was was no power to make the change of grade in 1882, the city officers may be liable therefor, but not the city, because it was at that time as to the city ultra vires. Rowland v. Gallatin, 75 Mo. 134; Dillon Mun. Corp. (3 Ed.) § 89. The citizen is entitled to an injunction in this class of cases. High on Injunctions, §§ 613, 1241. (5) An act of the officers of a city is not necessarily or always its act, it is only its act when the thing done is authorized and not prohibited, and done in the prescribed mode. St. Louis v. Clemens, 43 Mo. 395; Mayor, etc., Baltimore v. Porter, 18 Md. 284; Field v. City of Des Moines, 39 Ia. 575-586; Browning v. Board Commissioners, 44 Ind. 11; Harvey v. City of Rochester, 35 Barb. 177. The moment the officer does a thing prohibited or without authority, or substitutes a mode different from that prescribed, his act ceases to be the act of the city and becomes his own individual act for which he alone and not the city is liable. Cuyler v. Rochester, 12 Wend. 165; Thompson v. Boonville, 61 Mo. 282; Rowland v. Gallatin, 75 Mo. 134.

C. O. Tichenor for respondent.

(1) The recovery in this case was authorized by sec. 21 of art. 2 of the constitution of 1875. It establishes the rights of the parties. It prohibits the damaging as well as the taking of private property for public use without just compensation. The prohibition is clear, concise and imperative. It contains no exceptions. Cooley's Con. Lim., pp. 55, 58, 65; Moers v. City, 21 Pa. 200. (2) The right to compensation is given by the constitution and like any other right it cannot be taken away because of the failure of the legislature to pass a law. Goldman v. Clark, 1 Nev. 611. “The courts of justice shall be open to every person and certain remedy afforded for every injury to person, property or character, and that right and justice should be administered without sale, denial or delay.” Section 10, Article 2, Const. (3) Right of action has often been given to owner damaged by change of grade simply by a section in a charter, or by a general statute, without any constitutional provision. Stickford v. City of St. Louis, 7 Mo. App. 218; Pearce v. City of Milwaukee, 18 Wis. 428; The City v. Company, 33 Ind. 437; Aldrich v. Alderman, 12 R. I. 243; Dalzell v. City, 12 Ia. 438. (4) The constitution and the charter must be construed together. The city had exclusive charge and control over its streets and alleys. No matter how perfect the statute might be in reference to assessing the intended damages, yet an ordinance must first be passed changing the grade. It is said that if a corporation does an act which its charter gives it the power to do in an illegal manner the act itself is ultra vires. Such is not the law. Hunt v. The City, 65 Mo. 620; Broadwell v. The City, 75 Mo. 213; Welch v. The City, 73 Mo. 71; Hickerson v. The City, 58 Mo. 61; Thayer v. The City, 19 Pick. 511; Taylor v. City, 25 Minn. 129; Hempstead v. City, 52 Ia. 306; Rodgers v. Bradshaw, 20 John. 744. (5) The constitutional provision in question is an exact copy of one adopted previously to ours, in the state of Illinois. It was construed before it was borrowed by us by the Supreme Court of that state; when we took the provision we took the construction along with it. Skouton v. Wood, 57 Mo. 380; Stone v. R. R. E., 68 Ill. 394; The C. & P. R. R. v. Francis, 70 Ill. 239; The City of Elgin v. Eaton, 83 Ill. 535; Rigney v. The City of Chicago, 102 Ill. 64. Where the constitution forbids a damage to private property and points out no remedy, and no statute gives a remedy for the invasion of the right of property thus secured, the common law which gives a remedy for every wrong will furnish the appropriate action for the redress of such grievances. Johnson v. City, 16 W. Va.; Moore v. Atlanta, Cent. L. Jour., April 1883, p. 272. Courts say the damages must be real and not speculative. They lay down the measure of damages as easily as this court in Soulard v. City or Broadwell v. City, supra. See, also, Stickford v. City, 7 Mo. App. 217; Hempstead v. City, supra; Taylor v. City, supra; McCarthy v. St. Paul, 22 Minn. 529. The question involved was decided in favor of plaintiffs in Blanchard v. City of Kansas, 16 Fed. Rep. 444; McElroy v. The City of Kansas, 21 Fed. Rep. 257.

HENRY, C. J.

This suit is for the recovery of damages against the City of Kansas for an alleged injury to a lot owned by plaintiff, occasioned by a change in the grade of Delaware street, in said city. Plaintiff obtained a judgment, from which the defendant has appealed.

Prior to the adoption of the constitution of 1875, the owner had no redress for such injury to his property as is here complained of, this court having held in a line of decisions unbroken, but in one instance, that it was damnum absque injuria. In an elaborate brief the counsel for the city has made an ingenious argument in support of the proposition that section 21, article 2, of the constitution requires legislation to give it effect. That section is as follows: “Private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners, of not less than three freeholders, in such manner as may be prescribed by law, and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested.”

Prohibitory clauses in constitutions are generally self-enforcing; twenty sections of the second article of our constitution, including the one under consideration are prohibitory, and on examination all, or nearly all, of them will be found to effect their purpose without the aid of legislation. The things therein named are prohibited. A legislative enactment could not do more toward the invalidation of the prohibited acts. It might provide penalties for breaches of a prohibitory constitutional provision where the constitution itself provides none. For instance no act of the legislature could make it any more illegal to take money from the public treasury in aid of any church. The general assembly might impose a penalty or other punishment for the act of taking money from the public treasury, in aid of a church, but without any such legislation, the courts would, under section 7, article 2, of the constitution, hold the act illegal and the person so taking the money responsible for it. The case of Fusz v. Spaunhorst, 67 Mo. 256, arose under a section of the constitution which declared that it shall be a crime, the nature and punishment of which shall be prescribed by law, for any president or other officer of any banking institution to assent to the reception of deposits or the creation of debts, by such banking institution after he shall have had knowledge of the fact that it is insolvent, or in failing circumstances, and any such officer shall be individually responsible for such deposits so received and all such debts so created with his assent. Sec. 27, article 12. This court held that this...