Houts v. McCluney

• Decision Date: 01 December 1890
• Parties: Houts v. McCluney, Administrator, Appellant
• Court: Missouri Supreme Court

14 S.W. 766

102 Mo. 13

Houts v. McCluney, Administrator, Appellant

Supreme Court of Missouri

December 1, 1890

Appeal from Johnson Circuit Court. -- Hon. Chas. W. Sloan, Judge.

Reversed.

Samuel P. Sparks and Henry Neill for appellant.

(1) Private property cannot be taken or damaged for public use without just compensation. Const., art. 2, sec. 21; Const U.S. art. 5. (2) Private property is taken for a public use when it is appropriated to the common use of the public at large. Owners of Ground v. Mayor of Albany, 15 Wend 374. (3) The words "public use" in the constitutional provisions, supra, mean a use which concerns the whole community as distinguished from a particular individual or a particular number of individuals. Gilner v. Throckmorton, 18 Cal. 229. (4) At common law, as well as under our statute concerning coroners, the coroner holding an inquest super visum corporis is in the performance of functions judicial in their character. Boislinere v Commissioners, 32 Mo. 375; People v. Divine, 44 Cal. 452; 1 Black. Com., p. 348, book 1; 2 Black. Com., p. 274, book 4. (5) The holding of the inquest was a proceeding for the public use, judicial in character, for the detection and punishment of crime; and sections 5134 and 5158, Revised Statutes, 1879, clearly invaded the wholesome constitutional provisions, supra, in so far as they sought to take private property to pay the expenses thereof.

OPINION

Black, J.

-- This case originated in the probate court of Johnson county. It was tried anew on appeal in the circuit court. The material agreed facts are these:

F. M. Prussing, who was a well-known citizen of Warrensburg, was murdered at night in February, 1887, by persons unknown, while going from his store to his residence. The plaintiff, who was a justice of the peace, acting as coroner, held an inquest over the body of the deceased. The demand constituting the foundation of this action, and which was allowed against the Prussing estate, by the probate court and again by the circuit court, is a bill of costs amounting to $ 116.85 "for holding inquest." The bill is not itemized; but we understand it to include fees due the coroner, witnesses, jurors and constable, and nothing more. The coroner held the inquest of his own motion, and not by request of the widow, heirs or any person interested in the estate.

The agreed facts show that the costs sued for did not arise under circumstances contemplated in section 5158, Revised Statutes, 1879; hence that section has nothing to do with the determination of this case.

The plaintiff has filed no brief, and we suppose the clause of the statute relied upon as making the estate liable for these costs is that part of section 5154, which is in these words: "If any person over whose body an inquest shall be held shall have any estate, the costs and expenses of inquest and burial shall be paid out of his estate; but where there is no person liable and able to pay such expenses they shall be allowed by the county court, out of the county treasury." Defendant says this statute is unconstitutional, because it appropriates private property to public use without compensation. The first inquiry is, what are the costs which this statute undertakes to make a charge upon the estate? Are they such as are claimed by the plaintiff?

The first section of the act of February 3, 1847 (Acts of 1847, p. 59), for the first time made it the duty of the coroner to procure a coffin, and cause the dead body to be buried, when there is no relative or friend willing to perform that duty; and the county court is required to make him a reasonable allowance for his expenses in burying the body. The fourth section of that act contains the clause before quoted. These two sections have been continued down through the revisions of 1855, 1865, and are sections 5150 and 5154 of the Revised Statutes, 1879.

There is nothing in the Revised Statutes of 1845 which attempts to make a charge against the estate of a deceased person for holding an inquest over the body. On the contrary section 15 of chapter 84 makes it the duty of the coroner "to present to the county court a certified statement of all the costs and expenses of said inquest, including his own fees, the fees of jurors, witnesses, constable and others entitled to fees, for which the county is liable; and the county court shall...