State ex rel. State Highway Comm. v. McDowell

• Decision Date: 20 May 1941
• Docket Number: No. 6284.,6284.
• Citation: 152 S.W.2d 223
• Parties: STATE OF MISSOURI, EX REL. STATE HIGHWAY COMMISSION OF MISSOURI, RELATOR, v. HONORABLE JAMES C. McDOWELL, JUDGE OF THE 28TH JUDICIAL CIRCUIT OF THE STATE OF MISSOURI, AND OF THE CIRCUIT COURT OF MISSISSIPPI COUNTY, MISSOURI, RESPONDENT.
• Court: Missouri Court of Appeals

152 S.W.2d 223

STATE OF MISSOURI, EX REL. STATE HIGHWAY COMMISSION OF MISSOURI, RELATOR, v. HONORABLE JAMES C. McDOWELL, JUDGE OF THE 28TH JUDICIAL CIRCUIT OF THE STATE OF MISSOURI, AND OF THE CIRCUIT COURT OF MISSISSIPPI COUNTY, MISSOURI, RESPONDENT.

No. 6284.

Springfield Court of Appeals, Missouri.

May 20, 1941.

Rehearing denied June 12, 1941.

Original Proceedings in Prohibition.

PROVISIONAL RULE MADE PERMANENT.

Ashby & Banta, Louis V. Stigall, Wallace Wilson and Wilkie Cunnyngham for relator.

(1) The Springfield Court of Appeals has jurisdiction of this original proceeding. (a) General jurisdiction of the Springfield Court of Appeals in such cases is given. Missouri Constitution, Amendment of 1884, Art. VI, Secs. 3, 4 and 5; Missouri Constitution, Art. VI, Sec. 12; Sec. 2071, R.S. Mo. 1939; Supreme Court Rule No. 32. (b) The respondent is unsuccessful in his attempt to oust the Springfield Court of Appeals of jurisdiction by raising a question "involving the construction of the Constitution." The decision of this court will call for no interpretation of any clause of the Constitution but requires no more than the construction of a statute. State v. Elam, 21 Mo. App. 290; Brookline Canning & Packing Co. v. Evans, 238 Mo. 599, 142 S.W. 319; Stegall v. American Pigment & Chemical Co., 263 Mo. 719, 173 S.W. 674; Bealmer v. Hartford Fire Ins. Co., 281 Mo. 495, 220 S.W. 954; McManus v. Burrows, 280 Mo. 327, 217 S.W. 512; Supreme Lodge v. Paramount Progressive Order of Moose, 322 Mo. 866, 17 S.W. (2d) 327; Bothe v. C.B. & Q.R.R. Co., 248 Mo. 36, 154 S.W. 98; Robinson v. Nick, 345 Mo. 305, 134 S.W. (2d) 112. (2) (a) Proceedings for condemnation of right-of-way for state highways are purely statutory. Courts, 21 C.J.S. 260, Sec. 170; Mo. Const., Art. II, Sec. 21; State ex rel. City of St. Louis v. Beck, 333 Mo. 1118, 63 S.W. (2d) 814; State ex rel. Pierce v. Skinker, 228 Mo. App. 928, 74 S.W. (2d) 893. [1] Condemnation for state highway right-of-way follows the "corporation condemnation" procedure — not the city procedure. City of St. Louis v. Rossi, 333 Mo. 1092, 64 S.W. (2d) 600; R.S. Mo., 1939, Sec. 8759. (b) The corporation condemnation procedure, under Art. II, Chap. 8, R.S. 1939, provides that any "new appraisement shall, at the request of either party, be made by a jury, under the supervision of the court, as in ordinary cases of inquiry of damages," if either party shall file exceptions within ten days after notice of the filing of commissioner's report. Sec. 1508, R.S. Mo. 1939; State ex rel. Union Electric v. Bruce, 334 Mo. 312, 66 S.W. (2d) 847; Rothan v. St. Louis O.H. & C. Ry. Co., 113 Mo. 132, 20 S.W. 892. [1] Any mistake, error or defect in the procedure by or before the commissioners, or in their report, can be adequately corrected (as has been repeatedly held by the Supreme Court) at the time of the jury trial "under the supervision of the court." Turlow v. Ross, 144 Mo. 234, 45 S.W. 1125; Grossman v. Patton, 186 Mo. 661, 85 S.W. 548; Chively v. Lankford, 174 Mo. 535, 74 S.W. 835. [2] The amount fixed by the commissioners should be of no assistance to the landowner in the jury trial (which has been demanded by both parties). Mo. Pac. Ry. Co. v. Roberts, 187 Mo. 309, 86 S.W. 91. [3] Condemnation is a very summary and informal action. It is intended to ascertain, in the shortest possible time, the amount which the condemnor may pay into court for the land owner, so that possession of the land can be taken and the construction of the public improvement proceed. State ex rel. Sanks v. Johnson, 138 Mo. App. 306, 121 S.W. 780; Secs. 1505, 1508, R.S. Mo. 1939; Kansas City Sub. Belt Ry. Co. v. Kansas City, St. L. & C. Ry. Co., 118 Mo. 559, 24 S.W. 478.

Haw & Haw for respondent.

(1) It is the duty of this Court to determine the question of jurisdiction before passing on the merits. 2 Houts, Missouri Pleading and Practice, sec. 489, p. 268; State ex rel. v. Kansas City Court of Appeals, 105 Mo. 299; Federal Chemical Co. v. Farmers Produce Exchange, 118 S.W. (2d) 1067; State ex rel. v. Barton, 4 S.W. (2d) 852. (2) This Court does not have jurisdiction of this proceeding. [1] Because constitutional questions are raised by the pleadings herein, and by the motion for the appointment of new commissioners, filed in the Circuit Court. 2 Houts, Missouri Pleading and Practice, sec. 484; Vol. 4, Sec. 1228; Missouri Const., Art. VI, Sec. 12; Also, Sec. 5 of Amendment of 1884; State ex rel. v. Barton, supra; State ex rel. v. Nortoni, 201 Mo. 1, 98 S.W. 554; State ex rel. v. St. Louis Court of Appeals, 97 Mo. 276; State ex rel. v. Kansas City Court of Appeals, supra; California Special Road Dist. v. Bueker, 231 S.W. 71; Ash v. City of Independence, 145 Mo. 120; Bank v. Ridge, 79 Mo. App. 26. [2] Because, as pleaded by respondent in his return, his Court has original and exclusive jurisdiction of the condemnation proceedings mentioned in relator's petition. Missouri Const., Art. VI, Sec. 22; R.S. Mo. 1939, Secs. 1504-1513. The Constitution and the statutes provide for a just assessment made by a board of commissioners composed of three freeholders. The report does not meet this requirement. If the statute relied on by relator, section 1508, can be construed as a restriction of the constitutional right to have a just award by three freeholders, then the statute is, to that extent at least, void. Grossman v. Patton, 186 Mo. 661; The Kansas City, C. & S. Ry. Co. v. Story, 96 Mo. 620; Constitution of Missouri, Art. II, Sec. 21; R.S. Mo. 1939, Sec. 1506. A trial by jury would not meet the requirement of the Constitution for an award by three freeholders. It is not a necessary qualification of a juror that he be a freeholder. R.S. Mo. 1939, Sec. 697. The order appointing commissioners was interlocutory, remains under the Circuit Court's control, and is subject to being set aside or recalled at any time before the proceedings are finally disposed of. R.S. Mo. 1939, Sec. 1238; Leavenworth Terminal Ry. Co. v. Atchison, 137 Mo. 218, 37 S.W. 913; State ex rel. v. Skinker, 74 S.W. (2d) 893, 228 Mo. App. 928; State ex rel. v. Sevier, 73 S.W. (2d) 361, 335 Mo. 269. [3] The Missouri Constitution and statutes guarantee, to every person in condemnation proceedings such as those involved, the right to have just compensation ascertained by a jury or board of commissioners of not less than three freeholders. Mo. Const., Art. II, Sec. 21; R.S. Mo. 1939, Sec. 1506; The Kansas City, C. & S. Ry. Co. v. Story, 96 Mo. 611; Grossman v. Patton, 186 Mo. 661; Shively v. Lankford, 174 Mo. 535. The report returned by the commissioners is clearly not a just assessment made by them and, therefore, is one by which the landowner has been deprived of its constitutional right. It should be set aside as to the lands in controversy. Grossman v. Patton, supra; Kingslake Drainage & Levee Dist. v. Jamison, 176 Mo. 557; The Kansas City, C. & S. Ry. Co. v. Story, 96 Mo. 611. [4] The Circuit Court of Mississippi County, Missouri, having jurisdiction of the parties and the subject matter in controversy, has original and exclusive jurisdiction, and it is both the right and the duty of respondent to make such orders as he may deem right, proper and necessary to the administration of justice. Mo. Const., Art. VI, Sec. 22, Art. II, Secs. 10, 21, 30; 14th Amendment, Constitution of the United States, Sec. 1; 21 C.J.S., p. 135, Sec. 86, pp. 136-138 Sec. 88, p. 139, Sec. 89. Every court has inherent power to control and prevent abuse of its orders, processes and procedure; to supervise its officers and subordinates, and to correct their errors and abuses, and the recognized power to investigate charges of acts having a direct tendency to obstruct or prevent the administration of justice. 21 C.J.S., p. 138, Sec. 88. [5] If the relator appealed from the condemnation suit, the jurisdiction of the appeal would be in the Supreme Court. Mo. Const., Am. of 1884, Art. VI, Sec. 5; State ex rel. v. Nortoni, 201 Mo. 1, 98 S.W. 554; State ex rel. v. Barton, supra. [6] These inherent powers of the courts cannot be usurped or destroyed by the General Assembly. Clark v. Austin (Mo.), 101 S.W. (2d) 977; Mo. Const., Art. VI, Sec. 1 (as extended by Amendment of 1884). (2) Even if no constitutional question were involved, this Court would not prohibit respondent from making the order in question here, because: [1] Since the trial court has jurisdiction, respondent has the right to exercise his own discretion and the appellate courts will not interfere with this right. Mo. Const., Art. VI, Sec. 22; State ex rel. Drainage Dist. v. Duncan, 68 S.W. (2d) 678, 334 Mo. 733; State ex rel. Hog Haven Farms v. Pearcy, 41 S.W. (2d) 403, 328 Mo. 560; State ex rel. Supreme Temple v. Cook, 136 S.W. (2d) 142; State ex rel. Central States L.I. Co. v. McElhinny, 90 S.W. (2d) 124; State ex rel. v. Skinker, 74 S.W. (2d) 893, 228 Mo. App. 928; State ex rel. v. Green, 92 S.W. (2d) 930; State ex rel. Cone v. Bruce, 55 S.W. (2d) 733, 227 Mo. App. 631; State ex rel. Bankers Life Co. v. Hendricks, 36 S.W. (2d) 409, 225 Mo. App. 337; State ex rel. Realty Co. v. Thomas, 278 Mo. 85, 211 S.W. 667. [2] The writ of prohibition is not a writ of right. Before it will be granted, it must appear both that the law sanctions it and that a sound judicial discretion commends it. Davison v. Hough, 165 Mo. 561; State ex rel. v. Duncan, 36 S.W. (2d) 679, 225 Mo. App. 393; State ex rel. v. Hall, 72 S.W. (2d) 499, 228 Mo. App. 766. [3] After notice relator participated in the hearing on the motion to appoint new commissioners, did not attack the jurisdiction of the trial court and is not entitled to a writ of prohibition. State ex rel. v. Huck, 246 S.W. 303, 296 Mo. 374; State ex rel. v. Rutledge, 56 S.W. (2d) 28, 331 Mo. 1015; 50 C.J., pp. 695-696, Sec. 98. [4]. The failure of the commissioners to return a report showing their conclusions as to a just compensation was brought about by relator, through its right of way...