Kansas City v. Marsh Oil Company

• Decision Date: 06 July 1897
• Citation: 41 S.W. 943,140 Mo. 458
• Parties: Kansas City v. Marsh Oil Company, Appellant
• Court: Missouri Supreme Court

41 S.W. 943

140 Mo. 458

Kansas City v. Marsh Oil Company, Appellant

Supreme Court of Missouri

July 6, 1897

Appeal from Jackson Circuit Court. -- Hon. Charles L. Dobson, Judge.

Affirmed.

Frank Titus for appellant.

(1) The legislative power in Missouri is vested in the General Assembly, and can not be delegated to or exercised by the people. State ex rel. Maggard v. Pond, 93 Mo. 632; State v. Field, 17 Mo. 529; Lammert v Lidwell, 62 Mo. 191; State ex rel. v. Francis, 95 Mo. 49; State v. City of Orange, 36 A. 707. (2) Kansas City is not a "political subdivision" of this State, as is the city of St. Louis. Kansas City v Neal, 122 Mo. 232; St. Louis v. Robinson, 55 Mo.App. 246; St. Charles v. Hackman, 133 Mo. 641. (3) The "powers" of cities in Missouri must be defined by general law. Const. Mo., art. 9, sec. 7. (4) The constitutional privilege of creating a charter for the administration of the purely local affairs of its inhabitants excludes Kansas City from the exercise of that law-making power vested in the legislature alone. Kansas City v Neal, 122 Mo. 234; State ex rel. v. St. Louis County Court, 34 Mo. 546; Reardon v. St. Louis County, 36 Mo. 560; Jefferson Co. v. St. Louis Co., 113 Mo. 619. (5) The unlimited and unrestrained power of eminent domain is neither essential to nor inherent in a municipal corporation. Davies v. Los Angeles, 86 Cal. 37; Lewis, Em. Domain, sec. 240; Minturn v. Larue, 23 Howard, 435; St. Louis v. Bell Telephone Co., 96 Mo. 623; Railroad v. Canal Com., 21 Pa. St. 9; Allen v. Jones, 47 Ind. 439. (6) The act must be considered as altogether ultra vires and therefore void. Cooley, Const. Lim. [5 Ed.] 211; Tacoma Gas Co. v. City, 44 P. 655; Ottawa v. Cary, 108 U.S. 110; Black on Interpretation of Law, 317; Paine v. Spratley, 5 Kan. 525; Black, Const. Law, 381; Touchard v. Touchard, 5 Cal. 307; Meriwether v. Garrett, 102 U.S. 511; Philadelphia v. Fox, 64 Pa. St. 169. (7) All statutes authorizing the appropriation of private property for public use must be strictly construed. Thompson v. Railroad, 110 Mo. 153; Railroad v. Clark, 119 Mo. 357. (8) The legislature alone has the power to determine when the power of eminent domain shall be called into exercise. Stamford Water Co. v. Stanley, 39 Hun. 428; Stockton County v. Stockton, 41 Cal. 188; Smeaton v. Martin, 57 Wis. 372; Olmstead v. Morris Aqueduct, 46 N. J. Law, 499; Dingley v. Boston, 100 Mass. 558; Varick v. Smith, 5 Paige, 137. (9) It is ultra vires on the part of the people of Kansas City to enact a valid law regulating the practice, procedure and jurisdiction of circuit courts in judicial proceedings affecting citizens of the State; changing the methods established by general law of obtaining, rendering, and enforcing judgments; changing the law relative to real estate and the title thereto, as is attempted by the charter amendment. Snoddy v. Bolen, 122 Mo. 479; Thomas v. Hunt, 134 Mo. 392; R. S. 1889, sec. 8833; State ex rel. v. Field, 99 Mo. 352; Kansas City v. Scarritt, 127 Mo. 642; Council v. Fowler, 25 S.W. 900; St. Louis v. Allen, 13 Mo. 400; Morrison v. Bachert, 112 Pa. St. 329; Town v. Baylies, 19 Iowa 43; Strange v. Dubuque, 62 Iowa 305; Hixon v. Burson, 43 N.W. 1000; Chalfant v. Edwards, 33 N.W. 1048; Gas Co. v. Electric Co., 44 P. 655; State v. Court, 34 P. 1072; State ex rel. v. Davis, 44 N.E. 511; Hill v. Memphis, 134 U.S. 203; Brenhan v. Bank, 144 U.S. 173; State v. Walsh, 136 Mo. 400; Commonwealth v. Turner, 1 Cush. 495; Williams v. Davison, 43 Tex. 34; Mather v. Ottawa, 114 Ill. 664; Philadelphia v. Fox, 64 Pa. St. 169; Ottawa v. Carey, 108 U.S. 110; Hodges v. Buffalo, 2 Denio, 110.

C. O. Tichenor for respondent.

(1) If a party can have imaginary rulings and imaginary exceptions thereto, such exceptions must be saved by a bill of exceptions. Nichols v. Stevens, 123 Mo. 119; State v. Smith, 114 Mo. 407; Bray v. Kremp, 113 Mo. 552. (2) The eleventh ground for a new trial is this: "Because of newly discovered evidence regarding values of land testified to by witnesses." It was put in the motion after it was filed, and after the four days had passed. The court had no power to grant this privilege. State v. Brooks, 92 Mo. 5; State v. Dusenberry, 112 Mo. 277. (3) Counsel claims, as we understand his "brochure" on eminent domain, that Kansas City under its charter is without this right. If so, St. Louis is and has been since October, 1876, in the same helpless condition. Lecomb v. Railroad, 23 Wall. 118; U. S. v. Railroad, 17 Wall. 329; St. Louis v. Boffinger, 19 Mo. 13; Taylor v. City, 22 Mo. 105. (4) That Kansas City has this right, this court has declared time and again in well considered cases. Kansas City v. Vineyard, 128 Mo. 75; Kansas City v. Smart, 128 Mo. 291. (5) This is a matter which must be regulated by the charter itself. Kansas City ex rel. v. Scarritt, 127 Mo. 651; Kansas City v. Ward, 35 S.W. 600. (6) It is said that the charter of Kansas City seeks to regulate the practice of the courts. This is not so. Musick v. Railroad, 114 Mo. 309; City of Edina v. Shoot, 129 Mo. 354; City v. Butterfield, 89 Mo. 646; Leonard v. Sparks, 117 Mo. 108.

D. J. Haff and C. S. Palmer also for respondent.

(1) The power of eminent domain, as assumed and exercised by respondent, Kansas City in this case, is conferred by its charter under authority of article 9 of the Constitution of the State of Missouri and the enabling act of the legislature passed in pursuance thereof, and is not ultra vires. Laws of Missouri 1887, p. 42; Charter of Kansas City 1889, article 1, sec. 1; article 8 entire; article 10, sec. 7; amended article 10, sec. 7, of Charter of Kansas City, adopted June 6, 1895. (2) The amended article 10 of the charter is not open to the objection that it "regulates the practice, procedure and jurisdiction of circuit courts in judicial proceedings affecting the balance of the State," or changes "the methods established by the general law of obtaining, rendering and enforcing judgments, and changing the law relative to real estate and the title thereto," as contended by appellant. It simply confers a special jurisdiction upon the circuit court of Jackson county for a specific municipal purpose, which is a power fairly within the general grant of power to Kansas City to create for itself a charter conferred upon the city by section 16, of article 9, of the Constitution. City of St. Louis v. Gleason, 93 Mo. 33; Kansas City v. Ward, 35 S.W. 600; State ex rel. v. Field, 99 Mo. 352; Kansas City v. Scarritt, 127 Mo. 642.

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

OPINION

In Banc.

Gantt J.

-- This is an appeal from the judgment of the circuit court of Jackson county in a proceeding instituted and prosecuted to condemn real estate to widen a street, under and by authority of article 10 of the charter of Kansas City, as amended June 6, 1895, in the manner provided by section 16, of article 9, of the Constitution of Missouri, authorizing any city having a population of more than one hundred thousand inhabitants to frame a charter for its own government, and thereafter amend the same by a proposal therefor made by the law making authority of such city, and duly published and accepted by a three fifths vote of the qualified voters voting at a general or special election "and not otherwise."

It was begun in the circuit court of Jackson county as provided by said charter amendment, by the filing of a certified copy of an ordinance of Kansas City, duly and legally passed, upon the recommendation of its board of park commissioners, selecting and designating certain lands for a boulevard as shown by a map filed by the city engineer with said park commissioners.

Article 10 of the charter of Kansas City, as amended, provides that if any incorporated company shall be entitled to a trial of its claim for land condemned or damaged by a common law jury of twelve men, it shall have the same by filing a petition therefor prior to the day set for the hearing and impaneling of a jury of freeholders. Appellant being a corporation demanded a jury of twelve which the court accorded to it. The jury estimated its damage at $ 11,000. In due time it filed a motion for new trial and in arrest of judgment and after the expiration of four days offered to file a supplementary motion for new trial to which the city objected, but which the court permitted. Its motions were overruled, and the remainder of the case as to other property having been heard by the freeholders and the verdict of the common law jury having been adopted by said freeholders' jury, judgment of confirmation was entered May 22, 1896, and the Marsh Oil Company alone appeals to this court.

I. It is asserted, with much confidence, seemingly, by counsel for defendant, that the power of eminent domain as assumed and exercised by Kansas City in this and kindred cases is ultra vires, and therefore without the sanction of law. If defendant is right, his discovery is quite out of the ordinary, little less indeed than startling, in view of the great number of cases which have been considered by this court involving the exercise of eminent domain by the cities of St. Louis and Kansas City, because we think the two charters are strikingly alike in this feature of each.

Proceeding to an examination of this contention we find it asserted that "outside of this purported amendment (article 10) there is nothing in the charter itself warranting the exercise of the power of eminent domain by the common council," and "said amendment is void because not "in harmony with and subject to the Constitution and laws of Missouri."

The right of eminent domain is inherent in every government. In this State it is not conferred, but is limited by the Constitution. The...