OPINION
FOX, J.
This
proceeding is brought to this court by appeal on the part of
Henry Bledsoe, appellant, from a judgment rendered in the
circuit court of Buchanan county, assessing damages
for injury to appellant's land abutting upon the public
road sought to be graded by this proceeding. This proceeding
is predicated upon an act of the General Assembly approved
March 26, 1903 (Laws 1903, p. 148), to empower county courts
to grade public roads and provide a method for paying damages
caused by said grading. Sections 1, 2, 3, 4, 5, 6 and 7 of
this act provide:
"Sec
1. Any county court in this State, by an order of record
shall have power to cause to be graded or otherwise improved
or repaired, all public highways or parts thereof within such
county, at such time, to such extent and of such dimensions
as shall be provided by any such order entered of record.
"Sec. 2. When any county court in this State
shall make an order of record to grade any highway or parts
thereof within such county, the county clerk of any such
county shall, at the cost of the county, cause to be
published a copy of said order, within twenty days from the
making thereof, in some newspaper printed and published in
such county, to be designated by such county court in its
said order, once a week for four successive weeks.
"Sec.
3. Within thirty days from the making of any such order, the
county surveyor shall furnish the county court, or the clerk
thereof, a map or plat containing a correct description of
the several lots or parcels of private property abutting upon
the public road proposed to be graded, together with a
profile of the said public road proposed to be graded, which
profile shall show the natural surface of said public road
and the extent of the grading proposed to be done.
"Sec.
4. The proceedings hereinafter provided for may be heard by
the circuit court in term time, or by a judge thereof in
vacation, and a complete record thereof shall be kept in
either case.
"Sec.
5. Whenever the county court or the clerk thereof shall cause
to be filed a certified copy of such order and the proof of
the publication thereof in the circuit court or with the
clerk thereof, such court or judge thereof shall fix a day
and place for assessing the damages to arise from the
proposed grading, and shall make an order reciting the order
of the county court, and said order shall be directed to all
persons to whom it may concern, without naming them,
notifying them of the places and the day fixed for the
ascertaining of damages to arise from such grading. A copy of
such order shall be published in some newspaper to be
designated by the court and of general circulation, printed
and published in the county, at least once a week, for four
successive weeks, the last insertion to be not
more than one week prior to the date fixed for said hearing;
said cause may be continued or postponed from time to time.
No notice of said proceedings shall be necessary, except as
herein provided, and proof of publication of such order may
be made by the affidavit of any editor or publisher of such
newspaper. On or before the day set for the hearing, any
person claiming damages by reason of the proposed grading may
file or cause to be filed with the clerk of said court a
description of the property claimed to be damaged, and the
interest of the claimant therein. The clerk shall note the
filing of every such claim as a part of the record in said
cause.
"Sec.
6. On the day set for hearing, if the copy of the order has
been duly published as herein required, the judge or court
shall appoint and cause to be empaneled a board of three
commissioners, who shall be distinterested freeholders, and
allowed the same fees as jurors are allowed for their
services.
"Sec.
7. The commissioners provided for in the preceding section
shall be sworn to ascertain and report the actual damages or
just compensation to be paid in each case separately under
such instructions as shall, after hearing the parties, be
given them by the judge or court. Parties interested may
submit proof to the commissioners, and said commissioners
shall examine, personally, each piece of property described
on such map or plat, and all property claimed to be damaged
by such proposed grading. The commissioners shall ascertain
and state in their report or verdict the amount of actual
damages to each piece of private property that will be
damaged by reason of the proposed grading, having due regard
to, and making just allowance for, all benefits to such piece
of property from such grading, and when the damages to any
piece of property do not exceed the benefit thereto from the
proposed grading, the commissioners shall not report any
allowance of damage to such piece. If a
majority of the commissioners cannot agree, the judge or
court may discharge them, and may proceed to impanel another
board, but the order to impanel a new board of commissioners
must be made on the day of discharging any board of
commissioners, and must name the time and place for
impaneling the new board."
Section
8 makes provisions for the verdict of the board of
commissioners being signed by a majority of them and the
delivery of such verdict or report to the judge or court on
the day fixed for such report, and this report may be set
aside by the judge or court upon his or its own motion, or on
the motion of the county, or for good cause upon the motion
of any party interested in the proceeding; and then follows a
provision for the appointment of a new board to perform the
duties prescribed by this article and the fixing of the time
and place of impaneling of a new board and the rehearing of
the whole matter. Section 9 provides that the verdict or
report shall, unless set aside, be affirmed by the court and
judgment entered thereon; that the county pay the damages
assessed therein. Then follows a provision for an appeal by
any party aggrieved by the judgment by filing
an affidavit as is required in appealing civil cases. It is
also provided by section 9 that in case of appeal the
judgment shall stand suspended until the appeal is disposed
of, and the clerk of the appellate court is required to put
the case on docket for hearing at the next term of that court
after the appeal is allowed. Following this is a provision in
the same section that no error or defect not affecting the
rights of the parties shall work a reversal of the judgment;
and that the proceedings in the case shall in all respects
not provided for in this act conform as near as may be to the
practice and procedure in civil cases.
The
abstract of record filed by appellant, which is
now before us, and it is the only abstract filed in this
cause, undertakes to recite what occurred in respect to this
proceeding in the circuit court of Buchanan county. We deem
it unnecessary to burden this opinion with a reproduction of
the entire record, but shall be content with a substantial
reference to what the record contains.
The
first entry in the circuit court is the order of publication
which recites that: "Be it remembered, on this 22d day
of October, 1903, the same being the 26th day of the regular
September term of this court, the following proceedings were
had in the matter of grading Bledsoe Hill. It appearing to
this court that heretofore, to-wit, on the 5th day of
September, 1903, the county court of Buchanan county,
Missouri, caused to be filed with the clerk of this court,
during the vacation thereof, a certified copy of the order
made by said county court in the matter of the grading of
Bledsoe Hill, together with the proof of publication of said
order of said county court." Then follows a reproduction
of the order made by the county court on the 6th day of
August, 1903, in the matter of the grading of two hills on
the public highway at H. Bledsoe's farm, in pursuance of
the provisions of sections 1, 2 and 3 of the statute as
herein indicated. In the order by the county court, which was
embraced in the order of publication, there was a provision
fixing the 23d day of November, 1903, as the day for
ascertaining the damages, if any, to arise from grading the
public road, or from that portion of it ordered to be graded
by the order of the county court, and the place fixed for the
hearing of any person interested therein was in Division No.
1 if the court was in session and if not in session before
the Hon. A. M. Woodson, judge of said court, in his chambers
in the courthouse in St. Joseph, Buchanan county, Missouri,
and the further provision that at that time and place
commissioners would be appointed as provided by
law for the purpose of ascertaining and reporting the actual
damages or just compensation, if any, on account of the
grading of the public road at the place designated in the
order. On the 23d day of November, 1903, the record discloses
that proof of the order of publication, as herein indicated,
was made, and that at that time the appellant in this cause,
Henry Bledsoe, filed a motion to dismiss this proceeding.
There is no necessity for incorporating in this opinion the
numerous grounds assigned in the motion why this proceeding
could not be maintained. It is sufficient to say that such
motion embraced every conceivable ground that could possibly
be urged why the proceeding could not be maintained. It
challenged the regularity of the proceeding as provided by
the statute, as well as the jurisdiction of the court and the
judge to proceed in the determination of the cause, and
finally assails the...
