In re Grossman

• Decision Date: 21 February 1905
• Citation: 85 S.W. 548,186 Mo. 661
• Parties: In Re C. S. GROSSMAN et al. v. PATTON et al., Appellants
• Court: Missouri Supreme Court

85 S.W. 548

186 Mo. 661

In Re C. S. GROSSMAN et al. v. PATTON et al., Appellants

Supreme Court of Missouri, Second Division

February 21, 1905

Appeal from Carroll Circuit Court. -- Hon. Jno. P. Butler, Judge.

Affirmed.

Jas. F Graham and Conkling & Rea for appellants.

(1) The record of the township board must show affirmatively that the commissioners were freeholders. An omission in this respect violates an express provision of the Constitution. Art. 2 sec. 21, Const.; sec. 10345, R. S. 1899. The terms "freeholder" and "householder" are not synonymous. "A freeholder is a person who possesses a freehold estate in land." Black's Law Dictionary Anderson's Law Dictionary; Fore v. Hoke, 48 Mo.App. 261. "A householder is the occupier of a house; one who keeps house with his family; the head or master of a family; one who has a household; the head of a household." Black's Law Dictionary; Anderson's Law Dictionary. "It is plain from these definitions that a person may be a householder without being a freeholder." Fore v. Hoke, 48 Mo.App. 261; Shively v. Lankford, 174 Mo. 535. (2) All jurisdictional steps must affirmatively appear on the face of the record. That the assessment of damages shall be made by freeholders is a jurisdictional requirement. The record of this case, both before the township board and in the county court, shows affirmatively that this requirement was ignored. Hence, neither the county court nor the township board had jurisdiction to establish this road, and the entire proceeding should have been quashed. State ex rel. v. St. Louis, 1 Mo.App. 503; Springfield v. Whitlock, 34 Mo.App. 649; Fore v. Hoke, 48 Mo.App. 254; Jones v. Zink, 65 Mo.App. 409; Ellis v. Railroad, 51 Mo. 200; Whitley v. Platte County, 73 Mo. 30; Railroad v. Young, 96 Mo. 39; Railroad v. Lewright, 113 Mo. 660; School District v. Dorton, 125 Mo. 439; Spurlock v. Dorman, 81 S.W. 412. (3) Since the proceedings in the county court were held to be invalid, all costs therein should have been taxed against petitioners. Appellants were certainly the prevailing party as to the proceedings in the county court. R. S. 1899, sec. 1547; Hawkins v. Nowland, 53 Mo. 328; Dupont v. McLaran, 61 Mo. 502; State ex rel. v. Hanley, 76 Mo.App. 631; Jones v. Yore, 142 Mo. 49; Wischmeyer v. Richardson, 153 Mo. 559; State ex rel. v. Wilson, 174 Mo. 509.

Lozier & Morris for respondents.

(1) All the facts conferring jurisdiction on the joint township boards to establish the proposed public road affirmatively appear on the face of the proceedings. The formality, sufficiency and validity of the proceedings up to the time of the appointment of the commissioners are not questioned by appellants. A subsequent irregularity in the proceedings before the township board or in the county court would not have the effect of depriving such tribunals of jurisdiction, or warrant a quashing of the entire proceedings. R. S. 1899, secs. 10342, 10344, 10350; Seafield v. Bohne, 169 Mo. 537; Nickerson v. Lynch, 135 Mo. 471; Sutton v. Cole, 155 Mo. 213; Sappington v. Lenz, 53 Mo.App. 44; Collins v. Kamman, 55 Mo.App. 464; State v. Schneider, 47 Mo.App. 669; Zimmerman v. Snowden, 88 Mo. 218; Adams v. Cowles, 95 Mo. 507; Cloud v. Pierce City, 86 Mo. 357; Crow v. Meyerseick, 88 Mo. 415; Whitley v. Platte County, 73 Mo. 32; Daugherty v. Brown, 91 Mo. 26; Lingo v. Burford, 112 Mo. 149; Zeibold v. Foster, 118 Mo. 349; Trimble v. Elkins, 88 Mo.App. 229. (2) While under section 21, article 2, of the Constitution, the damages sustained by appellants by reason of the appropriation of their land for road purposes must be ascertained by a jury or board of not less than three freeholders, still it is not necessary that such damages, in the first instance, be assessed by freeholders. It is sufficient if, at some stage of the proceedings, the damages be so assessed. On appeal to the county court the damage may thus be ascertained. Shively v. Lankford, 174 Mo. 535; Turlow v. Ross, 144 Mo. 234; Railroad v. Miller, 106 Mo. 458; Railroad v. Bates, 109 Mo. 53; Railroad v. Story, 96 Mo. 611; State ex rel. v. Withrow, 133 Mo. 500; Railroad v. Town Site Co., 103 Mo. 470; Rothan v. Railroad, 113 Mo. 132; Mills on Eminent Domain (2 Ed.), sec. 91; Lewis on Eminent Domain, sec. 312. (3) Section 21, article 2, of the Constitution, is self-enforcing. It requires no legislation to give it effect. And although section 10352, Revised Statutes 1899, did not specifically provide for ascertaining damages by a jury or board of not less than three freeholders, on appeal, yet on demand either party is entitled to such trial, and in this case the appellants may yet have their damages assessed in accordance with said constitutional provision. Householder v. City of Kansas, 83 Mo. 488; Blanchard v. City of Kansas, 16 F. 144; McElroy v. City of Kansas, 21 F. 275; Hickman v. City of Kansas, 120 Mo. 110; Railroad v. Strong, 90 Mo. 611; State ex rel. v. Dearring, 173 Mo. 507. (4) The circuit court has a superintending control over the county court and in proceedings of this character the circuit court can nullify any unauthorized or irregular action of the county court and require the latter tribunal to observe the proper procedure. R. S. 1899, sec. 1674; Drainage and Levee District v. Jamison, 176 Mo. 557; Laws 1903, p. 275. (5) The circuit court did not err in refusing to tax the costs of the proceeding in the county court against respondents. Walton v. Walton, 19 Mo. 667; Neal v. Smith, 22 Mo. 349; Bender v. Zimmerman, 135 Mo. 53; Turner v. Johnson, 95 Mo. 431.

OPINION

GANTT, J.

This is a proceeding to condemn certain real estate in Carroll county for a public road. The proposed road is on a township line, and it is assumed by counsel on both sides that township organization had been adopted and was in force in Carroll county. This further appears from the fact that the proposed road is on a township line, and under and by virtue of section 10350, Revised Statutes 1899, the petition was presented to a joint meeting of the township boards of both townships. Respondents are the petitioners for the road, and the appellants filed a remonstrance against the road, over one mile of said proposed road being on their lands.

A hearing was had, the petition granted, and a survey ordered. On July 26, 1901, the surveyor's report was filed, and the joint board found that the appellants had failed to relinquish the right-of-way over their lands, and that they and petitioners could not agree with them as to the damages sustained. There-upon, the joint board appointed Wm. A. Audsley, Noah Huntzinger and J. F. Warnock "whom the joint board finds from the evidence and witnesses produced to be disinterested resident householders," as commissioners to assess the damages. On August 7, 1901, the commissioners' report was filed and approved. They allowed appellants $ 4.50 damages in the aggregate. This amount was tendered and refused, and the road ordered opened. It is conceded by appellants that all the proceedings before the joint board were regular and in due form, save and except that the commissioners were not bound to be freeholders as required by section 21 of article 2 of the Constitution of Missouri, 1875. It should be noted that in the report filed August 7, 1901, the commissioners recite they were householders, but there is no finding by the joint board that they were freeholders, and there is nothing in the record to show that they were freeholders when appointed, or on August 5, 1901, when their report shows they estimated the damages.

From the order approving the report the appellants appealed to the county court. At the November term, 1901, of the county court the case was tried de novo in the county court. Appellants demanded a jury to assess their damages, which was refused. They then filed a motion to dismiss, because of the invalidity of the proceedings before the board, which was overruled. They next asked to have the damages ascertained by a jury or board of commissioners, who should be freeholders, as required by section 21 of article 2 of the Constitution of this State, which was denied them.

Thereupon the county court proceeded to hear the cause and affirmed the judgment of the joint township board, and reassessed the same damages as found by the commissioners, without the aid of a jury. The appellants then appealed to the circuit court.

"At the April term, 1902, of the Carroll Circuit Court, appellants duly filed a motion to quash all proceedings herein and to dismiss this cause for the following reasons:

"1. Because the original assessment of damages was made by commissioners found to be 'householders' instead of freeholders as required by the Constitution.

"2. Because in the county court the damages were ascertained by the judges thereof, instead of by a jury or board of commissioners of freeholders, as provided by the Constitution.

"3. Because neither the township board nor the county court had jurisdiction to make any order or judgment condemning appellants' lands or opening said road.

"Upon hearing this motion, the circuit court quashed the proceedings before the county court, but sustained the proceedings before the township board, and remanded the cause to the county court for a new trial by constitutional methods.

"As the proceedings before the county court were held to be illegal, appellants next moved the circuit court to tax against the petitioners all costs accrued in both courts. The motion was sustained as to the costs in the circuit court, but overruled as to the costs accrued in the county court.

"In due time, appellants filed their motion for rehearing, again urging the motion to quash, the invalidity of the proceedings before the township board, and duly complaining of the court's said ruling...