Southern Illinois and Missouri Bridge Company v. Stone
| Decision Date | 26 February 1906 |
| Parties | SOUTHERN ILLINOIS AND MISSOURI BRIDGE COMPANY v. STONE et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Dunklin Circuit Court. -- Hon. J. L. Fort, Judge.
Affirmed.
Giboney Houck, Jno. A. Hope, M. R. Smith and Shepard Barclay for appellants.
(1) Plaintiff's petition does not state a cause of action for condemnation because, in the first place, it fails to show compliance with the Federal laws authorizing the construction of said bridge. The Federal act, of which all the courts take judicial notice, as the supreme law of the land (U. S Const., art. 6, sec. 2), prescribes a number of preliminary steps essential to the construction of the bridge. The petition should show compliance with every essential condition, which it fails to do, for instance, with the absolutely vital condition that the bridge construction be begun within one year. There is no such allegation, and the proof is exactly to the contrary. (2) The petition of plaintiff does not state a cause of action because it omits the vital and essential allegation that the property of the defendants sought to be acquired is to be taken "for public use." That omission is fatal to the proceeding. That is a jurisdictional and essential averment, wanting in this case. N. Y. Cent. Case, 5 Hun 86; Colville v Judy, 73 Mo. 651; Railroad v. Galt, 133 Ill 657; Evergreen Assn. v. Beecher, 53 Conn. 551; Const. Mo., art. 2, sec. 20; Cemetery Assn. v. Redd, 33 W.Va. 262. (3) The learned judge of the Dunklin Circuit Court had no authority to appoint commissioners in vacation, in view of the mandate of the Supreme Court in this case, which directed the circuit court to act. Said order did not give authority to a judge in vacation to proceed in the matter in question. Authority of a court does not authorize the action of a judge in vacation without express authority in the taking of private property against the owners' protest. Consent does not waive such a want of jurisdiction. Oliver v. Snider, 176 Mo. 63; Blair v. Reading, 99 Ill. 600. (4) The trial court erred in permitting (by the sixth instruction given for plaintiff) a reduction of the compensation to defendants for the taking of their land by "benefits," supposed to be conferred on "the remainder of defendants' property" by the bridge approaches. That instruction is a direct invasion of defendants' rights under the Federal and State Constitutions regarding the taking of private property for public use. (5) The instructions given for plaintiff are erroneous in stating the measure of recovery to which defendants were entitled under the Constitution and laws of the United States and Missouri. (6) There was no proof of a failure to agree as to compensation to the Finleys, defendants. That failure was a jurisdictional prerequisite to condemnation. (7) The trial court should have allowed the Cape Girardeau and Thebes Terminal Railroad to be made a party defendant, as it showed, by undisputed facts, that it had a substantial interest in the land, the subject-matter of this suit for condemnation. (8) The trial court erred in admitting in evidence, at the last trial, the order appointing commissioners and the report of the commissioners assessing damages for the taking of the land of defendants, because said matters did not "tend to prove any issues in this case," were incompetent and irrelevant. The report of the commissioners (which assessed the value of the land sought to be condemned at $ 8,120.00), was an item of evidence for the plaintiff which was highly prejudicial in character, totally incompetent, and not defensible on any theory we know of.
S. H. West and W. H. Miller for respondent; Alex. G. Cochran of counsel.
(1) At the very threshold respondent invokes the doctrine of stare decisis, et non quieta movere, "Stand by precedents and not disturb what is settled." "Once a point of law is finally settled by a decision, that decision rules like cases subsequently arising." "When a court has once laid down a principle of law applicable to a certain state of facts, for the sake of the stability and certainty of the law it will apply that principle to all future cases where the facts are substantially the same." Moore v. Albany, 96 N.Y. 410. Forwarding Co. v. Mahaffey, 36 Kan. 157. The above is especially true where the law has been settled as a rule of property and titles have been acquired on the strength thereof. Reed v. Owenby, 44 Mo. 206; Hine v. Courtes, 44 Mo. 206; Dunklin county v. Chouteau, 120 Mo. 593; Wilson v. Beckwith, 140 Mo. 301; State v. Thayer, 158 Mo. 58; City of Sedalia v. Gold, 91 Mo.App. 38; Sappington v. Oeschli, 49 Mo. 244; Bank v. Douglas County, 146 Mo. 42; Potter v. McDowell, 43 Mo. 93. (2) Respondent asserts now that in the absence even of a specific direction the law as laid down by the majority opinion in the case is the law that will govern this court in passing upon this appeal. Poulsen v. Portland, 21 L.R.A. 677; Corey v. West, 165 Mo. 452; Lawson v. Spencer, 90 Mo.App. 514; Overall v. Ellis, 38 Mo. 209; Bank v. Taylor, 62 Mo. 338; Keith v. Keith, 97 Mo. 225; Chapman v. Railroad, 146 Mo. 481; Fink v. Ins. Co., 66 Mo.App. 531; Dillon v. Railroad, 71 Mo.App. 631; State ex rel. v. Edwards, 144 Mo. 670; Tourville v. Railroad, 148 Mo. 623; Riley v. Sherwood, 155 Mo. 37. (3) There is no conflict between the instructions given on behalf of plaintiff and on behalf of defendant in this case. Instructions numbered 3, 4, 5 and 6 given at the request of plaintiff have met the direct approval of the Supreme Court of this State. Railroad v. Stock Yards, 120 Mo. 541; Railroad v. Knapp, Stout & Co., 160 Mo. 396. All of these instructions are literal copies of those approved in the Stock Yards case, supra. Instruction numbered 5 was again copied in case of Railroad v. Knapp, Stout & Co., supra, and there again met with distinct approval. Instruction numbered 1, asked on behalf of the objectors, is the same as instruction number 4, asked by plaintiff. In this case the trial court was most liberal, indeed, in its rulings upon the testimony offered by the objectors.
OPINION
In Banc
This case was before this court on a former appeal, 174 Mo. 1, wherein a full and fair statement of the facts in the case, as disclosed by the record, was given. The case was then before us on plaintiff's appeal. The judgment of the court below was reversed and the cause remanded, with directions to the court to appoint a commission, as the law required, for the purpose of assessing the damages to the defendant, the said commission to forthwith report its finding to the circuit court in which the proceeding was pending, to the end that the bridge company might take possession of the property and proceed with its work. This commission, acting in accordance with the directions of the court, viewed the property sought to be condemned, and on the 10th day of April, 1903, filed its report, whereby it assessed the damages of defendant at $ 8,120. This sum was immediately deposited by the plaintiff with the clerk of the circuit court of Dunklin county, and thereupon plaintiff entered into possession of the premises and, in pursuance of the order and judgment of this court and the report of the commissioners, expended a very large sum of money. In due time defendants filed their exceptions to the commissioners' report and, before the trial, filed what they termed an amended answer, in which substantially the same grounds are urged as in the original answer and as shown by the exceptions to the commissioners' report. Upon trial of the issues presented, the jury returned into court a verdict in favor of defendant for the sum of $ 10,000. A judgment of condemnation was entered accordingly, and plaintiff immediately deposited a further sum of $ 1,880 with the clerk of the circuit court of Dunklin county, making a total of $ 10,000, and in addition thereto paid all the costs which had accrued in said cause up to and including that transaction. The defendants, on behalf of the Cape Girardeau and Thebes Bridge Terminal Company, immediately filed a motion in the circuit court of Dunklin county, asking an order directing the sum of money so deposited with the clerk to be paid over to it, which motion was granted and the order entered of record. From the judgment of condemnation thus entered this appeal is now prosecuted on behalf of the defendants to this court, in which it is sought to review not only the proceedings of the court on the last trial in the assessment of damages, but the entire proceedings from the inception to the close of the case.
This plaintiff contends now that if there ever was a Federal question involved in this case it was involved as much in the former appeal as it is now, and the defendants having failed to take any steps to have these questions reviewed by a Federal tribunal cannot now do so, because all of the matters and things therein contained are res adjudicata, and under no circumstances can be re-opened in the same case. Plaintiff further contends that the only questions open to review on this appeal are those raised on the trial in the circuit court on the question of damages, as all the other questions involved were adjudicated on the former appeal.
There was much testimony adduced on the question of values, as bearing on the amount of damages to which defendants were entitled on account of the condemnation of their property.
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