St. Joseph & I.R. Co. v. Shambaugh

• Decision Date: 09 November 1891
• Parties: The St. Joseph & Iowa Railroad Company, Appellant and Respondent, v. Shambaugh
• Court: Missouri Supreme Court

17 S.W. 581

106 Mo. 557

The St. Joseph & Iowa Railroad Company, Appellant and Respondent, v. Shambaugh

Supreme Court of Missouri, First Division

November 9, 1891

Appeal from DeKalb Circuit Court. -- Hon. O. M. Spencer, Judge.

Affirmed.

Stephen S. Brown for St. Joseph & Iowa Railroad Company, appellant.

It was proper for the St. Joseph & Iowa Railroad Company, in appropriating lands for its right of way, to proceed in the manner provided by its charter, which is a special proceeding before the judge, and does not admit of a jury. Railroad v. Morton, 20 Mo. 70; S. C., 27 Mo. 317; Railroad v Rowland, 29 Mo. 337; Lindell's Adm'r v Railroad, 36 Mo. 543; Railroad v. Gott, 25 Mo 540; Lewis on Eminent Domain, sec. 248; Corey v. Railroad, 100 Mo. 282. And the provisions of the charter, with respect to such proceedings, were neither repealed nor modified by the constitution of 1875. Haeussler v. Greer, 78 Mo. 188; Const. of Mo., art. 12, secs. 4, 21; Laws of Mo., 1873, p. 24; Cooley on Const. Lim. [4 Ed.] 185; [1 Ed.] 152; Lewis on Eminent Domain, sec. 248; State v. Clark, 25 N. J. L. 54; State v. Trenton, 36 N. J. L. 189; St. Louis v. Alexander, 23 Mo. 483; Peters v. Renick, 37 Mo. 597; Vastine v. Court, 38 Mo. 529; State ex rel. v. Macon Co., 41 Mo. 453; St. Louis v. Ins. Co., 47 Mo. 146; Railroad v. Cass Co., 53 Mo. 17; Smith v. Clark Co., 54 Mo. 58; Scotland Co. v. Railroad, 65 Mo. 123; Railroad v. St. Louis, 66 Mo. 228; State v. Green, 87 Mo. 583; Ottawa v. La Salle, 12 Ill. 340; Laws of Mo. 1853, sec. 4, p. 322.

S. H. Corn for Shambaugh, respondent.

(1) After overruling defendant's exceptions to the viewers' report, it was not error for the court to hold that the amount of compensation to be paid defendant for the appropriation of his land must be ascertained by a jury. Const. of Mo., art. 12 sec. 4; Railroad v. Story, 96 Mo. 611. (2) Sections 8, 9 and 10 of the act entitled an "Act to incorporate the Louisiana & Columbia Railroad Company," approved January 27, 1837, being inconsistent with section 4 of article 12 of the constitution, were rendered inoperative by that instrument. Const. 1875, schedule, sec. 1; Cooley's Const. Lim. [5 Ed.] 46; Smith's Const. Con. (1848), secs. 398, 399, pp. 570-1; Ex parte Marmaduke, 91 Mo. 265, and citations; State ex rel. v. Straat, 41 Mo. 58; Railroad v. County Court, 39 Mo. 485; Bank v. Anderson, 1 Mo. 244; Drehman v. Stifel, 41 Mo. 144; State to use v. Gatzweiler, 49 Mo. 17. (3) The mode of procedure for the enforcement of rights and prevention of wrong is always within the control of the state and may be changed at any time. State v. Railroad, 60 Mo. 143; State ex rel. v. Garroutte, 67 Mo. 445; State v. Roller, 77 Mo. 120, cases cited, p. 129; Ins. Co. v. Hill, 86 Mo. 466, cases cited, p. 472; State ex rel. v. Hager, 91 Mo. 452, cases cited, p. 456; University v. Rowse, 42 Mo. 308; Price v. Ins. Co., 3 Mo.App. 262; State v. Mathews, 44 Mo. 523; State v. King, 44 Mo. 283.

S. H. Corn for Shambaugh, appellant.

(1) The plaintiff never had any existence as a corporation. City of Hopkins v. Railroad, 79 Mo. 100; Butler v. Robinson, 75 Mo. 192; Railroad v. Sullivant, 5 Ohio St. 276; Richardson v. Pitts, 71 Mo. 128; Mining Co. v. Richards, 95 Mo. 110; Glenn v. Bergman, 20 Mo.App. 346; Railroad v. Young, 96 Mo. 41, and cases cited; Gray v. Bank, 3 Mass. 364; Burt v. Farrar, 24 Barb. 518; Railroad v. Preston, 35 Iowa 115; Railroad v. Hines, 8 Cush. 110; Mining Co. v. Woodbury, 14 Col. 424; Hunt v. Salisbury, 55 Mo. 310; Harris v. McGregor, 29 Cal. 125. (2) The act of March 19, 1866 (Sess. Acts, 1865-6, p. 222), is not such a recognition of the existence of the St. Joseph & Iowa Railroad Company as a corporation, as will dispense with proof of compliance with the things made by the act of 1857 conditions precedent to its organic existence and the vesting of the corporate franchises therein enumerated. 1 Redf. on Railways [4 Ed.] sec. 18, p. 67; 1 Wood on Ry. Law, p. 22, sec. 11, and cases cited under note 1, p. 23; 31 Barb. 258. (3) The act of March 19, 1866, never became operative. State v. Dawson, 16 Ind. 40; Bridge Co. v. Bridge Co., 7 Pick. 344; Owen v. Railroad, 83 Mo. 460. (4) If it be held, however, that the plaintiff had legal corporate existence at the time these proceedings were begun, its power to take land for the use of its road had ceased to exist before the beginning of these proceedings (Peavy v. Railroad, 30 Me. 498; Railroad v. Railroad, 31 N. J. 207; Railroad v. St. Louis, 66 Mo. 250), and the legislature could not restore its powers. Const. 1865, art. 8, sec. 2; Ellis v. Railroad, 51 Mo. 200; Cunningham v. Railroad, 61 Mo. 33; St. Louis v. Franks, 78 Mo. 41; St. Louis v. Gleason, 93 Mo. 33; Railroad v. Young, 96 Mo. 41. (5) These proceedings are void because they were not in conformity with article 6, chapter 21, Revised Statutes, 1879. State ex rel. v. Railroad, 62 Mo. 143; Railroad v. University, 52 Wis. 537; Porter v. Mariner, 50 Mo. 364; Ins. Co. v. Hill, 86 Mo. 472, and cases cited. (6) The land was taken without due process of law. No notice was given the land-owner of the time and place, when and where the petition would be heard. Without such notice the whole proceedings are void. Boonville v. Omrod's Adm'r, 26 Mo. 193; Moses v. Dock Co., 84 Mo. 242; Rutherford's Case, 72 Pa. 82; Railroad v. Commissioners, 51 Me. 36; Harris v. Hardman, 14 Howard, 340; Bostwick v. Isbell, 41 Conn. 305. (7) The court erred in giving instruction, numbered 1, for the plaintiff. The opening of gates or bars at farm crossings is an element of damage which the jury ought to consider. Mills on Em. Domain, secs. 166, 189; Railroad v. Story, 96 Mo. 622; Railroad v. Doran, 17 Minn. 188; 2 Wood on Railway Law, 919.

Brown & Craig for St. Joseph & Iowa Railroad Company, respondent.

(1) The legal existence of the St. Joseph & Iowa Railroad Company has been established in this case as fully as the corporation or its officers and directors would be required to establish it if called upon by the state to show by what warrant they exercised its corporate franchises. First. In such a case it is only necessary for the company or persons charged with the illegal exercise of corporate franchises to show the commencement of a legal existence under a valid charter, and from this the law will presume their continued existence down to the filing of the information. For this purpose the legislative act of incorporation is sufficient. Attorney General v. Bank, 2 Doug. 358. So that, when the St. Joseph & Iowa Railroad Company is found exercising the franchises granted by the act of 1857, the courts will presume that its corporate existence began with the passage of that act and has continued uninterruptedly ever since. Second. The constitution of 1865 does not restrict or limit the power of the legislature to amend the charters of existing corporations of this character. It only forbids the creation of such corporations by special acts. Constitution of Missouri, 1865, art. 8, secs. 1, 2, 4; State ex rel. v. Railroad, 48 Mo. 468; State ex rel. v. Coffee, 59 Mo. 59. Third. "No court is authorized to declare an act of the legislature void without being able to point out some specific clause of the constitution to which it is repugnant." Court v. Griswold, 58 Mo. 175; Hamilton v. County Court, 15 Mo. 3. Fourth. The constitution of 1865 does not prohibit the legislature from amending by special enactments the special charters of corporations already in existence. "No rule of construction is better established, both as principle and authority, than thatacts of the legislature are presumed to be constitutional, until the contrary is clearly shown." State ex rel. v. Pond, 93 Mo. 606; Kelly v. Meeks, 87 Mo. 396; State ex rel. v. Laughlin, 75 Mo. 148; State v. Able, 65 Mo. 362; Stevens v. Bank, 43 Mo. 385; State ex rel. v. Railroad, 48 Mo. 468; Court v. Griswold, 58 Mo. 175. And the court will, in every instance, regard the act to be investigated as prima facie constitutional. State v. Addington, 77 Mo. 110, 117. "If evidence was required, it must be supposed that it was before the legislature when the act was passed." Cooley, Const. Lim. [4 Ed.] p. 225; Lusher v. Scites, 4. W.Va. 11; DeCamp v. Eveland, 19 Barb. 81; Rumsey v. People, 19 N.Y. 41. (2) "In proceedings where the question, whether a corporation exists or not, arises collaterally, the courts will not permit its corporate character to be questioned. If it appear to be acting under color of law, and recognized by the state as such, such a question should be raised by the state itself by quo warrantoro other direct proceeding. And the rule would not be different if the constitution itself prescribed the manner of incorporation." St. Louis v. Shields, 62 Mo. 247; Church v. Tobbein, 82 Mo. 418; Railroad v. St. Louis, 66 Mo. 228; Cooley's Const. Lim. [4 Ed.] 312; [1 Ed.] 254; Church v. Pickett, 19 N.Y. 482. And this rule applies to proceedings for the condemnation of lands for railroad and other public purposes. Dock Co. v. Railroad, 32 N.J.Eq. 755; Reisner v. Strong, 24 Kas. 410; Brown v. Railroad, 125 Ill. 600; Henry v. Railroad, 121 Ill. 264; Attorney General v. Stevens, 1 N.J.Eq. 369; Ward v. Railroad, 119 Ill. 287. (3) Notice to the land-owner of the time and place of making application to the judge for the appointment of viewers was not required.

OPINION

Black, J.

The plaintiff railroad company commenced this proceeding on August 5, 1885, to condemn property for a right of way. The circuit judge by a vacation order appointed viewers to assess damages, no notice of the application having been given. The viewers, however, gave defendant notice of the time when they would view the property and make the assessment. To their report the defendant filed exceptions...