State ex rel. State Highway Com'n v. Rascher

• Decision Date: 06 April 1943
• Docket Number: 38227
• Citation: 169 S.W.2d 941,350 Mo. 1138
• Parties: State of Missouri at the relation of State Highway Commission of Missouri, Respondent, v. Joseph F. Rascher and Teresa Rascher, Appellants
• Court: Missouri Supreme Court

169 S.W.2d 941

350 Mo. 1138

State of Missouri at the relation of State Highway Commission of Missouri, Respondent, v. Joseph F. Rascher and Teresa Rascher, Appellants

No. 38227

Supreme Court of Missouri

April 6, 1943

Appeal from Chariton Circuit Court; Hon. G. Derk Green Judge.

Affirmed.

Gilbert Lamb for appellants.

(1) The court was without authority and jurisdiction to entertain or sustain respondent's motion to retax costs because the same was not filed within four days after the rendition of the judgment taxing all costs against respondent. Clancy v. Herman C. G. Luyties Real Estate Co., 10 S.W.2d 914; Graden v. Patrick, 162 S.W.2d 287. (2) Entering the judgment May 20, 1942, taxing one-half of the costs accruing on a trial of the exceptions to the commissioners' report violated appellants' rights and guaranty under Section 21 of Article 2 of the Constitution of Missouri, thereby denying them of just compensation for their private property taken for a public use. Lewis Eminent Domain, sec. 589; 20 C. J. p. 1220, sec. 581; Epling v. Dickson, 48 N.E. 1001; Brainard v. State, 74 Misc. 100, 131 N.Y.S. 221; Stolze v. Milwaukee, etc., R. Co., 88 N.W. 919; Burrill v. Martin, 12 Me. 345; City, etc., San Francisco v. Collins, 33 P. 56; Land & Canal Co. v Hartman, 29 P. 378; In re N. Y. W. S. & B. R. Co., 94 N.Y. 287.

Raymond G. Barnett and Ralph M. Eubanks for respondent.

(1) In a state highway condemnation proceeding the trial court may in its discretion assess the costs of a jury trial upon either or both of the parties thereto. Secs. 1509, 8759, R. S. 1939; Chicago, S. F. & C. Ry. Co. v. Elliott, 117 Mo. 549, 24 S.W. 53; City of Cape Girardeau v. Hunze, 314 Mo. 438, 284 S.W. 471; Texas Empire Pipe Line Co. v. Stewart, 35 S.W.2d 627; State ex rel. v. Jones, 15 S.W.2d 338; State ex rel. v. Haid, 59 S.W.2d 1057; Manley v. State Highway Comm., 82 S.W.2d 619. (2) The trial court in a state highway condemnation case may modify its judgment assessing the costs of a jury trial during the same term at which a judgment on the verdict was rendered. Ewart v. Peniston, 233 Mo. 695, 136 S.W. 422; Reid v. Moulton, 210 S.W. 34; Brugge v. State Bank of Wellston, 74 S.W.2d 835; Savings Trust Co. of St. Louis v. Skain, 131 S.W.2d 566.

OPINION

Gantt, J.

Action in condemnation. Statutory commissioners assessed the landowners' damages at $ 350.00 for land appropriated by the Highway Department for public use. The land is located along U.S. Route 24, and in Chariton County. On the report of the commissioners, the Highway Department paid the $ 350.00 to the circuit clerk, who delivered the same to the landowners. The Highway Department also paid the clerk the costs "up to and including the filing and copying the report of the commissioners." On exceptions filed by both the Highway Department and the landowners to the report of the commissioners, a trial before the court and a jury resulted in a verdict assessing the landowners' damages at $ 214.04. Thereupon judgment was entered in favor of the Highway Department for $ 135.96, the difference between the award of the commission and the verdict of the jury. As a part of the judgment, the costs of the trial in the circuit court on the exceptions were taxed against the Highway Department. Thereafter and more than four days after the judgment on the verdict was entered but during the same term of court, the Highway Department filed a motion to retax the costs. The motion was sustained during the same term of court and judgment entered taxing the costs of the trial on the exceptions equally against the Highway Department and the landowners. The landowners' motion for a new trial on the retaxing of said costs was overruled, and in due course the landowners appealed. The appeal only challenges the action of the trial court on the taxation of the costs.

I. The landowners contend that the court was without authority to entertain the motion to retax the costs because it was not filed within four days after judgment on the verdict.

The said motion was without force and effect as a motion in the case. It would not have carried the question over to the next term of court. Even so, the court had authority on its own motion to modify that part of the judgment taxing costs during the same term of court. In effect, the action of the court in sustaining the motion was a retaxation of the costs on the court's own motion. In other words, the motion to retax the costs directed the court's attention to the question of taxation of costs which caused the court to reconsider the question and rule the same on its own motion. [Ewart v. Peniston, 233 Mo. 695, l. c. 712, 136 S.W. 422; Reid v. Moulton, 210 S.W. 34, 36; Brugge et al. v. Bank of Wellston, 74 S.W.2d 835, 841; Savings Trust Co. v. Skain, 345 Mo. 46, 131 S.W.2d 566, 574; Houts on Mo. Pleading & Practice, Vol. III, p. 81.]

The landowners cite Clancy v. Herman, C. G. Luyties, R. E. Co., 321 Mo. 282, 10 S.W.2d 914, 915, and Graden v. Patrick, 162 S.W.2d 287, 289. Those cases are not in point. The Graden case only gave consideration to a motion to tax costs which was filed within four days after judgment on the verdict. The Clancy case only gave consideration to the failure to file the motion to tax costs within four days after judgment on the verdict that the question might be presented to the appellate court for review. In the instant case, on the court entering judgment on its own motion retaxing the costs, the landowners filed a motion for a new trial, which was overruled, and in due course they appealed.

II. The landowners also contend that "any law or statute having for its purpose the taxing of any part of the reasonable costs incurred in ascertaining the damages to which a landowner is entitled in a condemnation proceeding, such as this, and any attempt to enforce such law by a judgment of a court, violates his rights under Section 21 of Article II of the Constitution of Missouri, which guarantees the property owner just compensation for his private lands taken for a public use." In other words, they argue that the taxing of costs against them reduced the damages awarded by the court and jury, and for that reason violated the "just compensation" provision of the constitution. The challenged statute follows:

"The cost of the proceeding to appropriate the right of way shall be paid by the company seeking the appropriation, up to and including the filing and copying of the report of the commissioners; and the court, as to any costs made by subsequent litigation, may make such order as in its discretion may be deemed just. . . ." (Sec. 1509, R. S. 1939).

The constitutional provision for consideration follows:

"That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury, or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law; and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested. . . ." (Sec. 21, Art. II, Const. of Mo.).

In prescribing the manner of ascertaining "just compensation," the legislature provided for the appointment of three commissioners to assess the damages. (Sec. 1506, R. S. 1939.) In doing so it complied with Sec. 21, Art. II of the constitution. It should be noted that this provision of the constitution is self-enforcing. Furthermore, the landowner has no constitutional right to a trial by jury in condemnation cases. Thus it appears that the legislature could have made no further provision with reference to the matter. However, it has the inherent power of eminent domain subject to constitutional limitations. In the exercise of that power, it further provided that on exceptions filed by either party, the court may, at the request of either party, order a new appraisement "by a jury, under the supervision of the court, as in ordinary cases of inquiry of damages." Of course, a trial by the court and a jury necessarily creates costs.

In the instant case the landowners rejected the damages awarded by the commissioners. They voluntarily entered the field of speculation and thereby sought to increase the damages awarded as "just compensation" under the constitution and statute enacted in compliance therewith. In doing so they exercised their right under the statute to litigate the question "as in ordinary cases of inquiry of damages." In other words, they rejected a method provided by the constitution and statute enacted in compliance therewith for determining the question of "just...