Kansas City v. Duncan
| Decision Date | 11 November 1896 |
| Citation | 37 S.W. 513,135 Mo. 571 |
| Parties | Kansas City v. Duncan et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Thomas R. Morrow, Esq. Special Judge.
Affirmed.
Hatch & Middlebrook for appellants.
(1) Leaving it discretionary with the circuit judge to enforce or not, at his will, the giving of personal notice to property owners is a delegation of power not warranted by the constitution of Missouri. State v. Field, 17 Mo 529. (2) This law, by giving the circuit court "an option" whether it (the court) will give personal notice or not, Remarks of Judge Harrington in Rice v. Foster, 4 Harr. 499. See, also, Parker v. Commonwealth, 6 Barr (Pa.), 510; Aurora v. U.S. 7 Cranch, 382. By analogy the same doctrine is held in Lambert v Lidwell, 62 Mo. 188. An exhaustive review of this point is found in State ex rel. Maggard v. Pond, 93 Mo. 606, where (as in all other similar decisions) the leading case of State v. Field, above quoted, is approvingly quoted, though held not applicable to the facts in 93 Mo. 606. (3) It will be noticed that there is a striking analogy between the facts in State v. Field, (17 Mo.) and the provisions of section 5, article 8, amended charter; i. e., section 5 purports to repeal or "strike out" all of old section 5 and substitute therefor the new section 5 found in the amendment, which new section virtually authorizes the circuit court in its discretion to reenact, revive, and apply old section 5, or so much thereof as provides for personal service on property owners. [Compare sec. 5, art. 8, charter of April 8, 1889, with sec. 5, art. 8, amendment of February 27, 1892, as to personal service.] (4) The law as enacted in section 5, article 8, amendment to charter, does not "operate equally on every individual in the community" in this, in one case, the individuals interested may receive personal notice of the pendency of the proceedings to take their land, in another case, under precisely the same facts, other individuals may only receive constructive service, according to the discretion or whim of the court. It all depends on how the judge may feel disposed in that respect on that day. (5) The amended city charter, section 5, article 8, 1892, conflicts with the general statute law of the state; i. e., with sections 312 and 314, Revised Statutes, 1889.
Frank F. Rozzelle and Clarence S. Palmer for respondent.
(1) The publication in the paper or papers doing the city printing was proper. The notices and advertisement referred to in section 312, Revised Statutes of 1889, are clearly those required to be made by the state law. "Due process of law" in cases arising in the exercise of the power of eminent domain is not necessarily the same as in common law action. Parties are not entitled to a common law jury. Kansas City v. Hill, 80 Mo. 523; Railroad v. Railroad, 118 Mo. 599. (2) Grading proceedings under the state law of 1885 as amended in 1887 could not be begun by summons issued by the clerk; the special terms of the statute must be complied with. Williams v. Monroe, 28 S.W. 853. (3) The jurisdiction of the court is challenged on the ground that the only notice of the proceedings was given by a notice published in a newspaper, directed, "To all persons to whom it may concern," without naming them. This is in exact conformity with the charter, section 5, article 8, charter amendments. (4) It is a general proposition of law that courts, in proceedings in personam, must acquire jurisdiction of the parties by service of process within the jurisdiction of the court. Pennoyer v. Neff, 95 U.S. 727. While some states have had legislative provisions authorizing, upon service by publication, judgments in personam, which would bind the property of the defendant within the jurisdiction of the court, such provisions have been declared unconstitutional in Pennoyer v. Neff, above cited. The same case, however, holds as to proceedings in rem service by publication is sufficient. (5) Sections 2022 and 2027, Revised Statutes, 1889, provide for publication in ordinary suits where the property to be affected is within the jurisdiction of the court, and ordinary service by summons can not be made. (6) The right of damages in cases of this kind is not a common law right of action. It was given by the constitution of 1875. Hickman v. Kansas City, 120 Mo. 110. (7) There can be no doubt, therefore, of the right of the legislature to provide proper remedy for the ascertaining of compensation of the property owner affected by the change of grade. Hickman v. Kansas City, supra, and cases cited. (8) In this case, while the legislature has not acted, the charter of Kansas City is a legislative act, and this court has just held that it is the only legislative act that has any validity in proceedings of this kind. Kansas City ex rel. v. Scarritt, 127 Mo. 642; Kansas City ex rel. v. Field, 99 Mo. 352. (9) It has been held in this state under the St. Louis charter that a provision allowing commissioners to make assessments against the owners of all property which, in their opinion, will be specially benefited by the opening is valid, even in a case where no benefit district had been prescribed and no notice given to the owners of the land to be assessed with benefits. St. Louis v. Richeson, 76 Mo. 470. (10) In Railway v. Hemphill, 31 Miss. 1, it was held that a statute authorizing a jury to assemble on the land to assess damages was sufficient notice. The text writers also lay down the same rule. Mills on Eminent Domain, sec. 98; Elliot on Roads and Streets, pp. 152, 153. (11) It has been held in this state in attachment cases that after the issue and levy of the writ, some defect in publication is not fatal. Freeman v. Thomson, 53 Mo. 183; Holland v. Adair, 55 Mo. 40; Johnson v. Gage, 57 Mo. 160.
Proceedings were instituted under the amended charter of Kansas City to grade an alley from Tenth to Eleventh streets between Wyandotte and Central streets in that city. They were conducted regularly under the charter, and the verdict and report of the commissioners were duly filed and confirmed.
To pay the amount of damages allowed by reason of the proposed grading, the commissioners assessed against Kansas City the sum of $ 1 as the amount of the benefit the city at large would receive from the proposed grading, and the balance of the sum so awarded as damages and not assessed against Kansas City, was assessed against the property in the benefit limits prescribed in the ordinance, ordering the grading, except such pieces of private property to which damages were awarded on account of such grading where the damages exceeded the benefits assessed.
Against lot 22 owned by appellants facing on said alley $ 3.92 was assessed at the trial of the cause on July 30, 1892, for the ascertaining of damages and benefits to arise from the grading of the alley. Appellants failed to appear and file any claim for damages to their property, although many of the interested property owners did.
Appellants afterward filed with division number four of the circuit court where said proceedings were pending the following motion, which being overruled, appellants prosecuted this their appeal:
There is no claim that the proceedings in question were not taken in accordance with the charter, but the provisions of the charter are challenged as being in contravention of constitutional guaranties.
Section 5 of article 8 of the amended charter, under the head of "Power to grade streets, etc.," reads:
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Schmelzer v. Kansas City
...d, of Ordinance. (5) Service by publication in proceedings like this, under the Kansas City charter, is sufficient and legal. Kansas City v. Duncan, 135 Mo. 571; Kansas v. Ward, 134 Mo. 172; Kansas City v. Mastin, 169 Mo. 80; State ex rel. v. Wilson, 216 Mo. 215; State v. Blair, 245 Mo. 680......