State v. City of Kansas

• Decision Date: 01 April 1886
• Citation: 89 Mo. 34,14 S.W. 515
• Court: Missouri Supreme Court
• Parties: STATE ex rel. CHICAGO, B. & Q. R. Co. v. CITY OF KANSAS.<SMALL><SUP>1</SUP></SMALL>

14 S.W. 515

89 Mo. 34

STATE ex rel. CHICAGO, B. & Q. R. Co. v. CITY OF KANSAS.¹

Supreme Court of Missouri.

April Term, 1886.

MUNICIPAL CORPORATIONS — ASSESSMENT — EMINENT DOMAIN — ORDER OF PUBLICATION — AMENDMENT.

1. On certiorari to review proceedings opening a street, and condemning property therefor, where the transcript shows orders of publication published in certain papers, it may be amended by filing as part thereof a certificate showing that the city printing was duly awarded to those papers.

2. A tract of more than five acres added to the city of Kansas by Acts Mo. 1873, p. 280, may be assessed for benefits on condemnation of a part for opening a street, though section 3 provides that after three years that portion of the city brought by the act within its limits shall, "for all purposes of general and special taxation," be treated the same as other parts of the city, "provided, however, that no subdivision of over five acres shall be subject to such taxation."

3. The provisions of Acts Mo. 1875, pp. 244-249, authorizing special benefits to be set off against damages assessed for land taken by the city of Kansas to open a street, are not in conflict with Const. Mo. 1873, art. 2, § 21, providing that "private

property shall not be taken or damaged for public use without just compensation," and "that, until the same shall be paid to the owner or into court for him," the property shall not be disturbed nor the proprietary rights of the owner therein divested.

HENRY, C. J., dissenting.

Appeal from circuit court, Jackson county; F. M. BLACK, Judge.

Strong & Mosman and White & Spencer, for appellant. Ed. L. Scarritt and W. A. Alderson, for respondent.

NORTON, J.

This is a proceeding by certiorari, instituted by plaintiff in the circuit court of Jackson county, calling in question the regularity and validity of the action of defendants, in opening and extending Genessee street, in Kansas City. The circuit court ruled in favor of defendants, and rendered judgment quashing the writ, from which the plaintiff appeals. It appears from the record that in 1879 Bartlett, Coolidge & Foster owned a tract of land which had been brought within the city limits, by virtue of an amendment of the charter of Kansas City, enacted in 1873. This tract of land contained more than five acres, and was undivided. In 1880 these parties conveyed this land to plaintiff, who, in 1883, commenced this proceeding. It further appears that a portion of this land was condemned, and taken, in 1879, for said Genessee street; that the damage for the taking was assessed at the sum of $1,500, and the benefits were assessed against that portion of the land not taken at the like sum of $1,500.

Authority for taking property for street purposes in Kansas City, as well as authority for assessing benefits to pay for such improvements against property especially benefited by such improvements, is conferred upon the city by article 7, Acts 1875, pp. 244-249. Without entering into detail, and following, step by step, the proceedings taken to open said street, it will be sufficient to say that the record brought up to the circuit court by the certiorari shows a substantial, if not a literal, compliance with the sections of the article of the charter above referred to, and we shall content ourselves with only noticing such objections made by the plaintiff, which, if well taken, would invalidate the proceeding. It appears that defendant, in answer to the certiorari, filed a transcript relating to the opening of said street, and condemnation of property for that purpose, among which were orders of publication, published in the English language by the Mail Publishing Company, and in the German language by Werese & Lamp. Subsequently to the filing of this transcript, defendant asked leave to amend or perfect it by filing, as a part of the same proceedings, a certificate showing that the contract for doing the city printing was awarded to the above-named parties. The leave was granted over the plaintiff's objection, and this action of the court is complained of as being erroneous. While recognizing the correctness of the rule, as announced in Hannibal, etc., R. Co. v. Board, 64 Mo. 294, that the writ of certiorari brings up for review only such facts as appear on the face of the record, we are not able to see how it has been infringed in this instance, when, by leave of court, an amendment of the record was allowed, showing the existence of a fact actually appearing upon the record, but which had been omitted from the record as filed. The power of the court to grant such leave as was granted in this case is expressly affirmed in State v. City of St. Louis, 67 Mo. 113. The tract of land now owned by plaintiff, at the time a portion of it was taken for Genessee street, contained more than five acres, and was brought within the city limits by an act of the legislature, (Acts 1873, p. 280;) and it is insisted by plaintiff that it could not be subjected to any assessment for benefits to pay for local improvements. This claim is based on the third section of said act, which provides as follows: "Upon all property made taxable by law for state purposes, within all that portion of the city brought, by this act, within the limits of the city, and which, prior to the passage of this act, was not embraced in said limits, the common council shall have power to levy a tax of one per centum per annum for...