In re Condemnation Proceedings v. Mansfield

• Decision Date: 03 March 1947
• Docket Number: No. 20879.,20879.
• Citation: 201 S.W.2d 434
• Parties: IN RE CONDEMNATION PROCEEDINGS IN EAST PARK DISTRICT, ETC., KANSAS CITY, MISSOURI, RESPONDENT v. BRICE J. MANSFIELD, APPELLANT.
• Court: Missouri Court of Appeals

201 S.W.2d 434

IN RE CONDEMNATION PROCEEDINGS IN EAST PARK DISTRICT, ETC., KANSAS CITY, MISSOURI, RESPONDENT v. BRICE J. MANSFIELD, APPELLANT.

No. 20879.

Kansas City Court of Appeals. Missouri.

Opinion delivered March 3, 1947.

Appeal from Circuit Court of Jackson County. — Hon. Allen C. Southern, Judge.

APPEAL DISMISSED.

R.J. Smith for appellant.

(1) Before passage of 1943 Session Act, the following Sections of 1939 Revised Statutes, required jury of: Three commissioners: 1504-12; 5381-2-4; 6771-4-5; 7232-8; 7373; 7484-90; 8558-9-61; 8632-5; 8987; 9187; 9266; 10348; 13717; 14154; 15275-6. Six commissioners: 6293; 6386; 6396; 6441; 12759. Twelve commissioners: 7491; 10286-291. (2) In determining meaning of statute, historical conditions leading to its passage may be considered. Coates & Hopkins R. Co. v. K.C. Terminal R. Co., 328 Mo. 1118, 43 S.W. 2d 817; Cummins v. K.C. Public Service Co., 334 Mo. 672, 66 S.W. 2d 920; State ex rel. Klein v. Hughes, 351 Mo. 651, 173 S.W. 2d 877; American Bridge Co. v. Smith, 352 Mo. 616, 179 S.W. 2d 12; Rust v. Dental Board, 348 Mo. 616, 155 S.W. 2d 80. (3) Session Act of 1943 does not conflict with Kansas City Charter but is contemplated and provided for in express words. Spitcaufsky v. Hatten, 182 S.W. 2d 86, 106, 107; Charter of Kansas City, Sec. 128, Art. VI; 32 C.J.S., p. 1152; Elsner v. Supreme Lodge K. & L. H., 98 Mo. 640, 644; In re Thompson, 271 Pa. 225; State v. Reisman, 225 App. 637, 37 S.W. 2d 675, 677; Cummins v. K.C. Pub. Service Co., 334 Mo. 672, 66 S.W. 2d 920, 925. (4) Any delay in filing of motion for trial by jury of twelve men was because of conduct of respondent.

David M. Proctor, City Counselor, Benj. M. Powers, for respondent.

(1) The condemnation of property is a matter of local concern and is governed by the charter of Kansas City and not by the state statute. State ex rel. Kansas City v. Field, 99 Mo. 352, 12 S.W. 802; Kansas City v. Scarritt, 127 Mo. 642, 30 S.W. 111; Kansas City v. Marsh Oil Company, 140 Mo. 458, 41 S.W. 943; Kansas City v. Vineyard, 128 Mo. 75, 30 S.W. 326; Kansas City v. Ward, 134 Mo. 172, 35 S.W. 600; Brunn v. Kansas City, 216 Mo. 108, 115 S.W. 446; State ex rel. Kansas City v. Lucas, 317 Mo. 255, 296 S.W. 781; Kansas City v. Bacon, 147 Mo. 259, 48 S.W. 860; Kansas City v. Boruff, 295 Mo. 28, 243 S.W. 167; State ex rel. Graham v. Seehorn, 246 Mo. 541, 151 S.W. 716; In re East Bottoms Drainage and Levee District, 2539 S.W. 89; Tremayne v. St. Louis, 320 Mo. 120, 6 S.W. 2d 935; State ex rel. St. Louis v. O'Malley, 122 S.W. 2d 940, 343 Mo. 658; Constitution of Missouri, 1875, Art. II, Sec. 21; Constitution of Missouri, 1945, Art. I, Sec. 26; Kansas City v. Smart, 128 Mo. 272, 30 S.W. 773; Charter of Kansas City, Sections 142, 147, 155, 156. (2) By its very terms, the Act of 1943 does not apply to the kind of condemnation proceeding prescribed by the Charter of Kansas City. Laws of Missouri, 1943, page 623; Charter of Kansas City, Sections 142, 144, 147, 155; State ex rel. Holden v. Gill, 84 Mo. 248; R.S. Mo., 1939, Art. II, Ch. 8; U.S. v. Hess, 70 F. 2d 142; Mallette v. U.S., 137 F. 2d 95.

George L. Stemmler and James B. Steiner, Attorneys for The City of St. Louis.

(1) The history of the enactment of the 1943 Act (p. 623) shows that it was passed to insure the right of trial by jury in Federal condemnation suits in Missouri. Title 40, U.S.C.A. Sections 257-8; New Federal Rules, Rule 81 (a) (7); United States v. Certain Lands in Jackson County, Missouri, 48 F. Supp. 588; United States v. Hess, 8 Cir., 70 F. (2d) 142, 71 F. (2d) 78; R.S. Mo., 1939 Sections 1504-1513; Mallette v. United States, 137 F. (2d) 95, 97; 1943 Statutes (Laws of Missouri, 1943, p. 623). (2) The condemnation of private property in cities under special charter, framed and adopted pursuant to constitutional authority, is a matter of local municipal concern, and is governed by said special charters, and, therefore, the 1943 State statute (p. 623) has no application in municipal condemnation suits filed by Kansas City and St. Louis in said cities; said charters are superior to the State statute, and they are in harmony with the Constitution of 1875, and the statutes of this State according to the decisions of this Court. State Constitution, 1875, Sections 16, 17, 20-23, Article IX; State Constitution, 1945, Sections 19, 18-22, 31, Article VI; Laws of Missouri, 1885, p. 47, as amended by 1887, p. 37; Laws of Missouri, 1887, p. 42; State ex rel. Kansas City v. Field, 99, Mo. 352, 355, 356, 12 S.W. 802; Kansas City v. Marsh Oil Company, 140 Mo. 458, 467-72, 41 S.W. 943; Tremayne v. City of St. Louis, 320 Mo. 120, 6 S.W. (2d) 935, 941-942; State ex rel. Graham v. Seehorn, 246 Mo. 541, 557, 151 S.W. 716; Brunn v. Kansas City, 216 Mo. 108, 117, 115 S.W. 446; Kansas City v. Bacon, 147 Mo. 259, 270-273, 48 S.W. 860; Kansas City v. Boruff, 295 Mo. 28, 44, 243 S.W. 167. (3) The constitutional provisions on eminent domain do not authorize trial by jury in condemnation proceedings except in behalf of an "incorporated company," a private corporation. Special charters have been framed and adopted in harmony therewith. 1943 Statute (Laws of Missouri, 1943, p. 623); St. Joseph v. Geiwitz, 148 Mo. 210, 216, 49 S.W. 1000; Kansas City v. Smith, 238 Mo. 323, 331, 141 S.W. 1103; Allen v. Welsh, 125 Mo. App. 278, 286, 102 S.W. 665; City of St. Louis v. Smith, 325 Mo. 471, 476-477, 30 S.W. 2d 729; United States v. Hess, 70 F. (2d) 142, 145 (3); Article II, Sections 21, 28, Constitution of Missouri, 1875; Article I, Sections 22a, 26, Constitution of Missouri, 1945; R.S. Mo., 1919, Sections 8676, 8752; now R.S. Mo., 1939, Sections 7376, 7491; Article XII, Section 4, Constitution of Missouri, 1875; Article XI, Section 4, Constitution of Missouri, 1945; Kansas City v. Vineyard, 128 Mo. 75, 30 S.W. 326; St. Louis v. Roe, 184 Mo. 324, 83 S.W. 435; Kansas City v. Marsh Oil Company, 140 Mo. 458, 473, 41 S.W. 943. (4) If the 1943 Act is intended as an amendment to charters in cities under special charter, the Act is void as applied to said cities, because a special charter can only be amended by the manner provided by the Constitution of the State. 1943 Statute (Laws of Missouri, 1943, p. 623); Kansas City ex rel. North Park District v. Scarritt, 127 Mo. 642, 653, 29 S.W. 845. (5) The charters of Kansas City and St. Louis are complete codes for the condemnation of private property in said cities. Trial by jury would virtually block the opening of alleys in St. Louis for the reason that the gross damages and gross benefits must be equal in such cases.

Tremayne v. City of St. Louis, 320 Mo. 120, 6 S.W. (2d) 935, 942-3; State ex rel. City of St. Louis v. O'Malley, 343 Mo. 658, 122 S.W. 2d 940, 944; St. Louis City Charter, Art. 21, Sections 4, 7.

BOYER, C.

Kansas City instituted this proceeding to condemn property for park purposes. The appellant as an individual, together with others, owned part of the ground to be taken and described as Tract 1 in the record. The transcript filed here, as well as appellant's brief, shows that the proceeding was duly and regularly instituted and prosecuted through the various steps of the procedure to final judgment in conformity with the plans and provisions of Kansas City's special charter for the condemnation of property for public purposes. The transcript shows that appellant appeared by counsel during the selection and qualification of a jury of six disinterested freeholders; that such jury was selected by the court; that thereafter a trial was had before such jury at which appellant also appeared by attorney. The jury returned its verdict September 17, 1945, and awarded damages to the owners of the various tracts of land to be taken and levied special assessments upon real estate to be benefited thereby. The next day the various owners of Tract 1, including appellant, filed separate motions for a new trial and a rehearing, said motions being based primarily upon the allegation that the award of damages for the taking of Tract 1 was so inadequate as to amount to confiscation. There was no claim made in either of these motions that defendants were not accorded trial by a proper jury. The motions were overruled and on December 19, 1945, the court entered its final decree and judgment confirming the verdict of the jury of freeholders. Thereafter, and on December 21, 1945, a motion was filed in behalf of Mansfield entitled: "Motion for trial of this condemnation case by a jury of 12 men." This motion recites that Mansfield was one of the defendants; that he had filed exceptions to the award of the jury of six; that said exceptions were contained in his motion for new trial and had been denied and overruled by the court and the verdict of the jury duly confirmed by the court; that under the terms and provisions of an act of the legislature found in the Laws of Missouri 1943, page 623, he is entitled to have the entire issue as to what damages should be adjudged and decreed to him as the owner of Tract 1 fixed and determined by a jury of twelve men, and prayed the court to so rule. This motion was heard and overruled on February 19, 1946, to which order defendant saved exceptions. On the following day, February 20, 1946, Mansfield filed notice of appeal to the Supreme Court from the order of the court denying him a trial by a jury of twelve men on the question of damages to be allowed. The motion is captioned: "Notice of appeal by Brice J. Mansfield, property owner, from order of court denying him a trial by a jury of 12 men on the question of damages to be allowed him for the taking of real property owned by him and described as Tract 1, in this proceeding." This notice of appeal literally and specifically shows that the appeal taken in this case was merely from the order overruling Mansfield's motion for a trial by a jury of twelve.

The case was sent to the Supreme Court where briefs were filed on behalf of appellant and on behalf of respondent,...