In re Condemnation of Independence Avenue Boulevard v. Smart

• Decision Date: 30 April 1895
• Citation: 30 S.W. 773,128 Mo. 272
• Parties: In Re Condemnation of Independence Avenue Boulevard; Kansas City v. Smart et al., Appellants
• Court: Missouri Supreme Court

30 S.W. 773

128 Mo. 272

In Re Condemnation of Independence Avenue Boulevard; Kansas City v. Smart et al., Appellants

Supreme Court of Missouri

April 30, 1895

Appeal from Jackson Circuit Court. -- Hon. M. A. Fyke, Esq., Special Judge.

James G. Smart and Lathrop, Morrow, Fox & Moore for appellants Alice M. and D. O. Smart.

(1) The court erred in denying defendant's motion to dismiss under the amendment of 1892, to section 3 of article 10 of the Kansas City charter. The common council was without authority to proceed to establishment of a boulevard until the board of park and boulevard commissioners had selected routes and streets, etc. St. Louis v. Frank, 78 Mo 41; St. Louis v. Gleason, 93 Mo. 33; Fore v Hoke, 48 Mo.App. 254; Kansas City v. Ford, 99 Mo. 91; Small v. Pennell, 31 Me. 267. (2) The court committed error in sustaining the city's motion to amend the record and in hearing parol evidence to support same. (3) An effort to agree with property owners and failure in that regard was prerequisite to condemnation for boulevard purposes. See Leslie v. St. Louis, 47 Mo. 474; Ells v. Railroad, 51 Mo. 200. (4) The condemnation proceedings can not be upheld under article 7 of the city charter, as originally framed, relating to the condemnation of private property for public use. So far as section 3 of the amendments is in conflict with article 7, it necessarily repeals it to that extent by implication. Sutherland on Statutes, sec. 137; State v. Roller, 77 Mo. 129. (5) The court erred in excluding evidence tending to show that the benefit district was unreasonably small. Corrigan v Gage, 68 Mo. 541; Kelly v. Weeks, 87 Mo. 96. (6) A description of the property to be taken was absolutely essential. See Railroad v. Munson, 57 Mich. 42; Turnpike Co. v. Hamilton, 50 Ind. 580; In re Railroad Co., 70 N.Y. 191. (7) The court erred in denying defendants' demand for a common law jury. Railroad v. Town Site Co., 103 Mo. 451; Railroad v. Cudmore, 103 Mo. 634. (8) The court erred in not holding the jury of six freeholders, and especially juror Butler, disqualified from service. (9) The court erred in admitting parol evidence as to the delivery of the map. (10) The court erred in admitting evidence as to the action of the park and boulevard commissioners. (11) The court erred in overruling defendants' motion for new trial. (12) The court erred in overruling defendants' motion in arrest of judgment.

Trimble & Braley for appellants Kate M. Tootle, F. S. Tootle and J S. Lemon, curator of Tootle estate, and the Realty Investment Company.

Affirmed.

J. B. Hamner for Wm. Vineyard, appellant.

Henry N. Ess and John Georgen for Chas. R. Lockridge, appellant.

Frank F. Rozzelle and Clarence S. Palmer for Kansas City, respondent.

(1) The common council had authority to pass the ordinance in question without any resolution of the park and boulevard commissioners. Kansas City Charter, art. 7; Foster's case, 2 Rep. 107; Potter's Dwarris on Statutes, 154-160; State ex rel. v. Walbridge, 119 Mo. 383; Anderson's Law Dictionary, 879; Manker v. Faulhaber, 94 Mo. 430. (2) If a resolution of the board of park and boulevard commissioners had been necessary, the resolution was properly passed and approved by the board of public works and was sufficiently communicated to the common council. State ex rel. v. City of Kansas, 89 Mo. 35. (3) The charter does not make an attempt to agree with the property owners, a condition precedent to the institution of condemnation proceedings. Charter Amendments, art. 10, secs. 6, 7. (4) The court admitted all proper evidence on the question as to the reasonableness of the benefit district. The benefit district was not unreasonable. Kansas City Grading Co. v. Holden, 107 Mo. 311; St. Louis v. Ranken, 96 Mo. 497. (5) First. The improvement was for public use. Kansas City v. Knotts, 78 Mo. 356; State ex rel. v. Engelmann, 106 Mo. 628; City of Savannah v. Hancock, 91 Mo. 54. Second. The necessity of the exercise of the right of eminent domain is purely a political question. The court can not pass upon it. Cooley on Taxation [2 Ed.]; 2 Dillon on Municipal Corporations, sec. 590, p. 691, 692; Mills on Eminent Domain, sec. 11; County Court v. Griswold, 58 Mo. 175; State ex rel. v. Engelmann, 106 Mo. 628; Simpson v. Kansas City, 111 Mo. 237, loc. cit. 242; City of Kansas v. Baird, 98 Mo. 215. (6) The property to be taken was sufficiently described in the ordinance. Charter, art. 7, sec. 2. (7) No formal record of the delivery of the plat to the mayor is necessary. The record shows by implication that it was delivered at the proper time, and the fact is shown by undisputed testimony. Charter, art. 7, sec. 2; Mining Co. v. Joplin, 27 S.W. 406. (8) Juror Butler was not disqualified, and appellants made no proper challenge. Thompson & Merriam on Juries; 1 Thompson on Trials, secs. 98, 114; Fillion v. State, 5 Neb. 351; McComas v. Ins. Co., 56 Mo. 573. (9) No appellant had a right to a jury of twelve men. First. Kansas City is not an "incorporated company" within the meaning of section 4, article 12, of the constitution. Cloud v. Peirce City, 86 Mo. 357. Second. The fact that some other defendant in the case was a corporation gave no right to appellants. Kansas City v. Hill, 80 Mo. 523; St. Louis v. Lanigan, 97 Mo. 175; Railroad v. Fowler, 113 Mo. 458. Third. The motion filed by appellants asked for the trial of issues, by a jury of twelve men, which are not required by section 4, article 12, to be tried by jury. Fourth. The provisions of the constitution under consideration do not apply to a case of this kind. State ex rel. v. King, 44 Mo. 283. (10) The verdict of the jury in this case is justified by the evidence and is conclusive. St. Louis v. Wetzel, 110 Mo. 260; St. Louis v. Lanigan, 97 Mo. 175; Quill v. City, 124 Ind. 292. (11) It sufficiently appears from the ordinance that the land to be taken by this proceeding is in Jackson county, Missouri. Charter of Kansas City, secs. 1, 2, p. 134; sec. 35, sec. 3, description of sixth and seventh wards; Sutherland v. Holmes, 78 Mo. 379; Long v. Wagoner, 47 Mo. 178; Howe v. Williams, 51 Mo. 252; Norfeet v. Russell, 64 Mo. 176; 12 Am. and Eng. Encyclopedia of Law, 169, et seq., and notes. (12) The case was submitted under proper instructions. Muehlhausen v. Railroad, 91 Mo. 332; Dougherty v. Railroad, 97 Mo. 647; Henry v. Railroad, 113 Mo. 525; Barry v. Railroad, 98 Mo. 62. (13) The alleged defects in the verdict are no defects at all. Taken in connection with the ordinance and plat, all the descriptions are easily understood, except where they are immaterial. Railroad v. Swan, 120 Mo. 30; Railroad v. Fowler, 113 Mo. 458; Zeibold v. Foster, 118 Mo. 349; Railroad v. Town Site Co., 103 Mo. 451.

Haff & Van Valkenburgh, also, for Kansas City, respondent.

W. C. Scarritt and John K. Griffith for respondents Scarritt et al.

Gantt, J. Brace, C. J., Sherwood, Macfarlane, Burgess and Robinson, JJ., concur; Barclay, J., dissents.

OPINION

In Banc.

Gantt J.

The Realty Investment Company, one of the appellants, has dismissed its appeal in this court.

These proceedings were commenced before the mayor of Kansas City, under ordinance 4972 of that city, approved April 7, 1893, to condemn, for the purpose of widening said street and establishing a boulevard, a strip of land ten feet wide on each side of Independence avenue from Woodland avenue on the west to Gladstone avenue on the east, excepting a short distance on the south side of the street; also a strip of land fifteen feet in width on each side of Gladstone avenue from Independence avenue to St. John avenue; thence a tract or strip of land through the Vineyard property described by straight lines and curves running northeastwardly to the west end of Scarritt avenue; and from that point east it took a strip of land fifteen feet wide on each side of Scarritt avenue to the eastern limits of the city.

At the same time, and as a part of the same ordinance, the common council determined and prescribed a benefit district, within which private property should be deemed benefited by the proposed improvement, which extended back one hundred and fifty feet from the line of the proposed boulevard.

From the verdict in the mayor's court the appellants appealed to the circuit court of Jackson county, at Kansas City. On the ninth of October, 1893, a transcript of the proceedings before the mayor was filed in the office of the circuit court, certified by the city clerk. Various changes of venue were asked for and, finally, upon the disqualification of Judge Henry, M. A. Fyke, Esq., a member of the bar, was elected special judge to try the cause.

When the cause came on for trial in the circuit court, and on the first day of November, 1893, the defendant, Alice M. Smart and D. O. Smart, filed a motion to dismiss for the following, among other, reasons, to wit:

"First. Because the record fails to show that the city engineer delivered to the mayor a statement by map, plat, or otherwise, containing a description of the property to be taken with the names of the owners thereof.

"Second. Because the record fails to show that the board of park and boulevard commissioners selected the route for the proposed boulevard.

Third. Because the ordinance under which the proceedings were had was unlawful and irregular, in that it prejudged and predetermined that the city was not to be benefited beyond the sum of $ 500."

Thereupon the city filed a motion asking leave to amend the record by filing, in addition to the original transcript already filed, a certain statement alleged to be a part of the record showing the delivery to the mayor of a statement by map or plat containing a description of the property and the names of the owners; and also asking leave to...