State ex rel. Cape Girardeau v. Engelman

• Decision Date: 16 November 1891
• Citation: 17 S.W. 759,106 Mo. 628
• Parties: The State ex rel. Cape Girardeau v. Engelmann
• Court: Missouri Supreme Court

17 S.W. 759

106 Mo. 628

The State ex rel. Cape Girardeau v. Engelmann

Supreme Court of Missouri, Second Division

November 16, 1891

Peremptory writ awarded.

S. M Green for relator.

(1) The respondent admits the allegations in the writ contained to-wit, "that the jury was summoned for the purpose of assessing damages and benefits; he refused to impanel and swear said jury, and overruled relator's application for condemnation of the realty herein as provided by law." It was his duty to proceed to condemnation. Sess. Acts, 1872 p. 328, secs. 1-7, art. 7. (2) Where cities have special charters with power to condemn real estate for public purposes, such law governs exclusively. Plum v. City of Kansas, 101 Mo. 525; Stewart v. White, 98 Mo. 226; City of Kansas v. Baird, 98 Mo. 215; City of Springfield v. Whitlock, 34 Mo.App. 643; City of Kansas v. Ford, 99 Mo. 91. (3) In this case appeal will not lie until the judgment be rendered on the verdict of the jury. Acts, 1872, secs. 4, 5, art. 7, pp. 340, 341. And will lie only when taken within the time and in the manner prescribed by law. Green v. Castello, 35 Mo.App. 127; 24 Mo.App. 555-567. Will not lie before action of the court on report of commissioners. City of St. Louis v. Thomas, 100 Mo. 223. Will not lie from decision of the trial court which does not involve a final disposition of the case, nor from interlocutory judgments, nor unless verdict rendered. Railroad v. Railroad, 94 Mo. 535; City of Kansas v. Ford, 99 Mo. 91. Appeal will not lie even for costs without final disposition. Lore v. Newton, 26 Mo.App. 11; Beck v. Seal. 37 Mo.App. 567; Holdridge v. Marsh, 28 Mo. App, 283. Even filing bond in appellate court will not give that court jurisdiction when that court had none. St. Louis v. Thomas, 100 Mo. 223. There must be a final judgment, before appeal. Hobart v. McNamara, 13 Mo.App. 578; State v. Sutterfield, 54 Mo. 391; Bank v. Reilly, 8 Mo.App. 544; Mfg. Co. v. Thomas, 10 Mo.App. 457, and numerous cases. If not taken in time should be stricken from docket. Cassell v. Cassell, 77 Mo. 371; Swank v. Swank, 85 Mo. 198; Meyers v. Meyers, 19 Mo.App. 140, and numerous cases. Appeals from recorders' court must be tried de novo, but there must be something to appeal from, as in conviction in misdemeanors, and not in condemnation proceedings. Acts, 1872, sec. 18, art. 4, p. 338; St. Charles v. Stewart, 49 Mo. 132. (4) Mandamus will lie to require inferior courts to proceed, but will not require them to proceed in a particular way where the act involves judicial discretion; in merely ministerial acts the rule is otherwise. This proposition is universally conceded and elementary. Tappan, High and Dillon. This court has original jurisdiction in mandamus, and may issue alternative writs in vacation. State v. Tracy, 94 Mo. 219; State v. Weeks, 93 Mo. 499. This rule is one of expediency. The superintending control of the supreme court is as broad as the exigency of the case demands. State ex rel. v. Phillips, 97 Mo.

OPINION

Mandamus.

Macfarlane J.

An alternative writ was issued, on the petition of relator, and a return thereto is made by respondent. Upon the alternative writ and the return thereto, relator asks that the writ be made absolute. The case is thus to be determined upon the record.

It appears that Cape Girardeau is a city duly incorporated and exercising its rights and powers under an act of the general assembly of the state, approved March 29, 1872. That among others of its corporate powers is that of opening and extending, within its limits, streets and avenues for public use. Article 7 of the charter delegates to the city the power to condemn land for public streets, and points out the proceedings necessary to accomplish that end. The mayor and city council are required to determine the necessity for the proposed streets, and to provide by ordinance for opening or extending them. The proceedings for the assessment of damages and benefits are required to be conducted before the recorder who appoints commissioners, receives their verdict, and who is required, if the verdict be not set aside, "to render judgment on said verdict condemning the property and assessing the damages."

Under article 4, section 18, of the charter, the recorder is given the "same jurisdiction as justices of the peace within the limits of the city in state cases;" and "exclusive jurisdiction over all cases arising under any ordinance of the city, subject, however, to an appeal in all cases to the Cape Girardeau court of common pleas, which appeals shall lie upon the conditions imposed by the laws of the state."

An ordinance was duly passed by the mayor and council of the city, directing proceedings to be instituted for extending an alley, for public use, through the lands of private persons. Proceedings were thereupon instituted before respondent, who was recorder of said city, and due notice was given to the persons whose lands were to be affected by the proposed improvement. No question is raised as to the regularity of the proceedings to this point. When the cause came on for hearing before the recorder, and prior to the appointment of commissioners, the record shows the proceedings to have been as follows:

"Now again on this the twenty-fourth day of June, 1891, came the parties herein by their attorneys, and the recorder, being fully advised in regard to the judicial question in the cause heretofore submitted and taken under advisement, doth find that defendants are owners of the ground described in plaintiff's petition, sought to be condemned for the opening of an alley; and that it is expedient and necessary and for the public use to have said alley as specified in said petition opened and ground condemned; and that a jury be impaneled to view said ground and assess the damages and benefits. Thereupon, the defendants, by their attorneys, present an affidavit for an appeal in the cause, which having been seen and heard by the recorder, it is ordered that an appeal in this cause be granted to the Cape Girardeau court of common pleas, and that further proceedings in regard to the assessment of damages and benefits be suspended."

It appears further that a transcript and the papers in the cause were certified to said court of common pleas, and the recorder refused to proceed further in the matter. The purpose to be attained by this writ of mandamus is to require the recorder to continue with the proceedings to open the street.

The controversy in this case seems to grow out of the different views entertained by the parties respecting the duty of the recorder in determining the judicial question, as to whether the street is to be opened for a public use; and whether a judicial finding that it is so would be such a determination of the proceeding as would authorize an appeal.

I. It may be suggested here that the "necessity, expediency or propriety of exercising eminent domain, and the extent and manner of its exercise, are questions of general public policy, and belong to the legislative department." Lewis on Eminent Dom., sec. 162; Dickey v. Tennison, 27 Mo. 373; County Court v. Griswold, 58 Mo. 175. The exercise of the power, in the matter of opening and extending streets, and the right to determine their necessity, have been delegated to the mayor and council of the city, and over them the recorder has no control. The ordinance of the city providing for the opening of the alley in question was conclusive as to the public necessity. City of Kansas v. Baird, 98 Mo. 215, 11 S.W. 243.

II. The judicial question for the determination...