Kansas City v. St. Louis & Kansas City Land Co.

• Decision Date: 02 July 1914
• Docket Number: No. 18080.,18080.
• Citation: 169 S.W. 62,260 Mo. 395
• Parties: KANSAS CITY v. ST. LOUIS & KANSAS CITY LAND CO. et al.
• Court: Missouri Supreme Court

169 S.W. 62

260 Mo. 395

KANSAS CITY v. ST. LOUIS & KANSAS CITY LAND CO. et al.

No. 18080.

Supreme Court of Missouri.

July 2, 1914.

Rehearing Denied July 14, 1914.

1. JUDGMENT (§ 713)—RES JUDICATA—JURISDICTION —CONDEMNATION PROCEEDINGS.

The adjudication in two prohibition suits brought to stop the trial in condemnation proceedings that the trial court had jurisdiction were res judicata on a subsequent appeal in the condemnation proceedings.

2. COURTS (§ 188)—JURISDICTION—MUNICIPAL COURT—CONDEMNATION PROCEEDINGS.

The municipal court of Kansas City may assume jurisdiction of proceedings to condemn property for widening a street.

3. CONSTITUTIONAL LAW (§ 48)—CONSTITUTIONAL QUESTIONS—DETERMINATION.

A statute will be declared unconstitutional only when it appears beyond a reasonable doubt that it conflicts, and cannot be reconciled, with the Constitution.

4. CONSTITUTIONAL LAW (§§ 228, 281)—EMINENT DOMAIN (§ 167) — DUE PROCESS— EQUAL PROTECTION — CONDEMNATION PROCEEDINGS.

That lot owners whose properties were assessed for benefits from the widening of a street were not afforded an opportunity to be heard on the question of damages was not a violation of the constitutional guaranties of due process and equal protection of the law, where none of their property was condemned.

5. EMINENT DOMAIN (§ 167)—COMPENSATION — ASSESSMENT — CURATIVE CHARTER PROVISIONS —CONSTRUCTION.

Kansas City charter, art. 6, § 23, relating to supplemental proceedings to cure errors, defects, and omissions in the original condemnation proceedings, applied to an assessment of lots within the district and owned by persons who repudiated the original proceedings to condemn property and assess benefits for widening a street.

6. EMINENT DOMAIN (§ 169)—COMPENSATION — ASSESSMENT — ORDINANCES — CONDITIONS PRECEDENT.

An ordinance providing that all private property within described limits "is hereby taken and condemned for public use," and that "the amount allowed for private property taken shall be wholly raised by special assessment made against the property described in the next succeeding section in accordance with article 6 of the charter of Kansas City, Missouri," was not void on its face, as requiring that the amount allowed for private property be raised wholly by special assessment against the property described in the benefit district, especially where the quoted recitals were unnecessary under the charter, and the charter was followed and the city was assessed its charter share, and

no injury was done to the lot owners because of the objectionable language.

7. EMINENT DOMAIN (§ 185)—COMPENSATION —ASSESSMENT—APPEARANCE.

Where persons whose property is assessed for the benefits of widening a street appear in response to an order of publication in supplemental proceedings to cure errors in proceedings to condemn land and assess the benefits, they ordinarily waive their right to object to the form of such order.

8. EMINENT DOMAIN (§ 169)—COMPENSATION —ASSESSMENT—SUPPLEMENTAL ORDINANCE.

A supplemental ordinance in supplemental proceedings, pursuant to Kansas City Charter, art. 6, § 23, to cure defects in the original proceedings to condemn land and assess benefits for widening a street, need not definitely describe each particular tract erroneously omitted or assessed in the original proceeding, but it is sufficient to define the limits of the benefit district.

9. EMINENT DOMAIN (§ 243)—JUDGMENT—RES JUDICATA.

A judgment in proceedings to condemn land and assess benefits for widening a street was not res judicata on the question of liability of certain land for assessment of benefits, so as to bar supplemental proceedings brought pursuant to Kansas City Charter, art. 6, § 23, authorizing such proceedings to cure errors, defects, and omissions in the original proceedings, though the original verdict stated that as to land lying within the benefit district "not hereinbefore mentioned and described we assess no benefits," where such land was erroneously omitted.

In Banc. Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Condemnation proceedings by Kansas City against St. Louis & Kansas City Land Company and others. From the judgment, defendants appeal. Affirmed.

White & Lyons, Warner, Dean, McLeod & Langworthy, Sebree, Conrad & Wendorff, Ball & Ryland, Kenneth McC. De Weese, Watson, Watson & Alford, Cowherd, Ingraham, Durham & Morse, and Scarritt, Scarritt, Jones & Miller, all of Kansas City, for appellants. A. F. Evans, City Counselor, of Kansas City (Jay M. Lee and J. C. Petherbridge, Asst. City Counselors, both of Kansas City), for respondent.

LAMM, C. J.

This is an appeal by corporate owners of property in Kansas City whose parcels were assessed to pay benefits to meet an award of damages to other persons whose property was taken or damaged in a proceeding to widen a street. Kansas City in 1909 undertook to open and widen Sixth street from the east line of Bluff to the west line of Broadway by condemning 40 feet of private property on the south side of the street; Sixth street leading from the bottoms up town and being the main traveled thoroughfare for heavy hauling between the two. The authority for this proceeding was ordinance No. 3209, and, as there are several ordinances in the record, we will call this the "original ordinance" passim. Under this original ordinance and in supposed compliance with charter provisions (article 6, 1908), condemnation proceedings were instituted in a court known as the "municipal court," and ripened into judgment whereby damages were awarded for the land taken in the rise of $166,000, and the same amount was assessed against the city and over 13,000 different tracts owned by individuals and corporations, lying within a benefit district prescribed by said original ordinance. No appeal from this judgment was taken either by any landowner whose property was condemned nor by any landowner whose property was assessed with benefits. On that judgment the city collected of those benefit assessments the rise of $89,000 to pay said award of damages. Presently, and with matters in this fix, a certain railroad company, the Union Pacific, discovered the service on owners whose parcels were subject to assessment of benefits was defective, and brought its suit in equity in the circuit court of Jackson county against Kansas City and its officers, among them one Flynn. The life of the bill was injunctive relief in its favor (as an owner of property within the benefit district and which was assessed with benefits) against such assessment of benefits in the condemnation judgment under the original ordinance. Other parties in like fix (say, two or three) intervened. As there are several suits mentioned in this record, we will call this the "Flynn suit" to identify it. The Flynn suit ripened into a decree in favor of plaintiffs and interveners. It is sufficient to say of the Flynn suit that the condemnation judgment under the original ordinance was not assailed for lack of jurisdiction in the municipal court to hear any condemnation proceedings and assess any benefits to pay damages awarded therein (a newly discovered theory, now pressed), but, in substance, that case proceeded on the theory that plaintiff had no notice of the proceeding, and hence the judgment as to it was void. The chancellor found a lack of notice and process (the order of publication required by the charter was not published a sufficient time), and that the several assessments made against plaintiff's and interveners' properties were void because of such lack of service. Hence the municipal court had acquired no jurisdiction of them. The scope and object of the decree in the Flynn Case are indicated by the following excerpt:

"It is therefore considered, ordered, adjudged, and decreed by the court that said assessments, in so far as they effect (sic) or purport to effect (sic) plaintiffs or any of them or any of their several properties, be and the same are hereby annulled and for naught held; that the several assessments against the respective properties aforesaid of the plaintiffs and each of them be and the same are hereby set aside and annulled; the defendant, Kansas City, M. A. Flynn, city clerk, U. L. Weary, clerk of said municipal court, and the officers and agents of said city, be and they are each of them perpetually restrained and enjoined from making out, certifying, or attesting any tax bills against the several properties of the plaintiffs or any of them under and by virtue of said assessments, and that plaintiffs have and recover from the defendant, Kansas City, the costs herein expended and have execution therefor."

Neither side took an appeal from the Flynn decree, and it remained operative as a perpetual injunction against collecting such unpaid assessments.

With things in this fix, it seems that Kansas City attempted to repeal the original ordinance presumably for the purpose of abandoning the proceeding and returning to those paying assessments the amounts so paid. But the city was reckoning without its host; for, pending such repeal measure, another injunction suit was brought in the Jackson circuit court; this time against the city and in favor of those property owners whose lands had been condemned under the original ordinance and who had been awarded damages, to wit, one Tuller and others. These new suitors—Tuller and others—took the position in their bill that on recognized equitable principles the city, under its charter, could not repeal the original ordinance and abandon such condemnation proceedings so far as those persons were concerned whose property had been taken or damaged and to whom damages had been awarded by the judgment, where (as here) benefits had been assessed and in part paid, and where (as here) such property owners had appeared, tried out the issue as to them, and recovered their damages, and where (as here) the judgment was not appealed from. We will call this case the ...