State v. Seehorn

• Decision Date: 26 November 1912
• Citation: 151 S.W. 724,246 Mo. 568
• Parties: STATE ex rel. TULLER et al. v. SEEHORN, Judge.
• Court: Missouri Supreme Court

151 S.W. 724

246 Mo. 568

STATE ex rel. TULLER et al. v. SEEHORN, Judge.

Supreme Court of Missouri.

November 26, 1912.

1. EMINENT DOMAIN (§ 256) — PROCEEDINGS — RIGHT TO APPEAL.

Under Kansas City Charter, art. 6, § 6, providing that, in proceedings to acquire property for street purposes, any person interested in the property taken or assessed for benefits may appeal from the municipal court to the circuit court, and section 23, authorizing supplemental proceedings to assess property against which an assessment was erroneously made or omitted in the original proceedings, and providing that the supplemental proceeding shall be instituted and conducted as to the piece or pieces of property sought to be acquired or assessed in like manner and with like effect as in the original proceedings, a person interested has a right of appeal in a supplemental proceeding the same as in the original proceeding.

2. STATUTES (§ 181) — CONSTRUCTION — INTENTION OF LEGISLATURE.

The primary rule in construing statutes is to ascertain and give effect to the intent.

3. MUNICIPAL CORPORATIONS (§ 495) — PUBLIC IMPROVEMENTS — ASSESSMENT OF BENEFITS — JURISDICTION.

Under Kansas City Charter, art. 6, § 23, authorizing supplemental proceedings to assess property benefited by a public improvement against which an assessment was erroneously made or omitted in the original proceeding, and section 6, authorizing an appeal to the circuit court where the cause shall be tried de novo, neither the municipal court nor the circuit court in the supplemental proceeding has any jurisdiction over benefits or damages to property, properly included in the verdict in the original proceeding, when that verdict and the judgment thereon had not been appealed from, in view of the provision of the charter that the common council may repeal the ordinance for an improvement at any time before any of the parties assessed with benefits have paid the amount assessed, which excludes the right to repeal the ordinance after such payment, article 6, § 4, providing that no assessment shall be affected or interfered with because any other assessments are invalid in whole or in part, and also providing for a reduction of the assessments where they exceed the compensation allowed, section 8, authorizing the board of public works to pay the damages awarded and take possession of the property before collecting the assessments for benefits, section 5, providing that, if the property to be taken is owned by a corporation, it may file a petition for a jury trial, in which event the case must be transferred to the circuit court, and section 13, providing for payment out of the city treasury of any deficiency through a failure to collect assessments, especially as those whose property is properly included in the first verdict are not required to be notified to appear in the supplemental proceeding.

4. EMINENT DOMAIN (§ 177) — NECESSARY PARTIES.

The owners of property benefited by a proposed public improvement are not necessary parties to a proceeding by the city to acquire the property necessary for such improvement; the only necessary parties being the city and the owner of the property taken.

5. PROHIBITION (§ 10) — GROUNDS — JURISDICTION.

Prohibition will lie to prevent the exercise of judicial power by a court having no jurisdiction to exercise any authority or where the court is exceeding its jurisdiction in a case rightfully before it.

6. PROHIBITION (§ 10) — GROUNDS — JURISDICTION.

Where the circuit court, on appeal in a supplemental proceeding to assess property benefited by a public improvement, was about to assume jurisdiction over the assessment on property properly included in the verdict in the original proceeding, the owner of which appeared specially for the purpose of challenging its jurisdiction, the judge of that court would be restrained by prohibition from exercising jurisdiction thereover.

In Banc. Original prohibition proceeding by the State, on the relation of Bert H. Tuller and others, against Thomas J. Seehorn, Judge of the Circuit Court of Jackson County. On demurrer to the return. Preliminary rule made absolute.

C. S. McLane, W. C. Culbertson, and R. W. Crimm, all of Kansas City, for relators A. F. Evans, John G. Park, Hunt C. Moore, John G. Schaich, Jay M. Lee, and A. F. Smith, all of Kansas City, for respondent.

KENNISH, J.

Relators filed their petition in this court praying the issuance of a writ of prohibition against the respondent as judge of division No. 3 of the circuit court of Jackson county. The cause sought to be prohibited is a condemnation proceeding now pending in said division No. 3, in which the property of relators is proposed to be taken for public use in widening Sixth street, between Broadway and Bluff streets, in Kansas City. A preliminary writ was issued upon the filing of the petition, and in due time respondent filed his return. Relators filed a demurrer to the return, and upon the issues of law thus raised the case was argued and submitted for decision.

The case of State ex rel. Graham et al. v. Seehorn, Respondent, 151 S. W. 716, decided at the present term of this court, but not yet officially published, is a companion case and almost identical in its facts with the facts pleaded and admitted in this case. A full statement of the facts will be found in the Graham Case, and it is not deemed necessary to repeat them at length herein.

Briefly, the important facts necessary to an understanding of this case are the following: A condemnation proceeding was instituted by ordinance 3,209, passed by the common council of Kansas City, in which the property of the relators was proposed to be taken for the widening of a public street, and a benefit district created for the purpose of providing the necessary compensation to be paid for the property so taken, by making the several tracts and parcels of property therein subject to tax assessments for special benefits received by reason of the proposed improvement. The proceedings regularly progressed until, under the provisions of the charter, an order was required to be made by the municipal court, giving notice of the pendency of the proceedings, and of the impaneling of a jury, at the time and place named, to fix the compensation for the property to be taken and to assess benefits against the property within the benefit district. The order was duly made and published in the proper newspaper and a copy thereof served upon each of the owners of the property to be taken. Personal service of the order was not required upon the owners of the property within the benefit district.

In compliance with the order and the provisions of the charter, the jury returned their verdict, in which compensation for the property condemned was awarded in the total sum of over $168,000. The city was assessed with its proportional part of the benefits received, and each tract of property in the benefit district was also assessed its proportional part, according to the benefits received. The verdict was confirmed by the council and judgment thereon rendered by the municipal court. No appeal having been taken within the time allowed, a copy of the verdict was delivered to the city treasurer, and more than half of the benefits assessed were paid before any question was raised as to the validity of the proceedings. It was then discovered that the order of the municipal court for the impaneling of the jury was not published as required by the charter, and that by reason of such defect the collection of the unpaid assessments could not be enforced. An injunction suit, brought by the property owners who refused to pay their assessments, was tried, and with the result that the municipal officers were enjoined from enforcing the collection of such assessments. Thereupon an ordinance was introduced in the common council for the purpose of repealing the original ordinance under which the proceedings had thus far been conducted, with a view of beginning new proceedings for the proposed improvement. Relators herein, owners of the property proposed to be taken, brought an injunction suit to enjoin the passage of said ordinance, upon the ground that a final judgment had been rendered, fixing the damages for the property to be taken, which judgment was unappealed from and under which rights had become vested. This suit was tried, and the injunction was granted as prayed for.

Section 23 of article 6 of the charter of said city provides that the city may carry on and maintain supplemental proceedings to properly assess any property in the benefit district "against which an assessment was in the first proceeding erroneously made or omitted to be made," and that "such supplemental proceedings shall be instituted and conducted as to the particular piece or pieces of private property sought to be included or assessed, in like manner and with like effect as in the original proceedings, and shall be known and described as supplemental proceedings for the purposes specified in the original ordinance." Pursuant to the provisions of said section 23, ordinance 7,539 was introduced in the common council for the purpose of levying assessments of benefits against property within the benefit district, as fixed by the original ordinance, and "against which an assessment was in the first proceeding erroneously made or which was omitted to be made." Due notice was given, a jury impaneled, and a verdict returned to the municipal court. This verdict purported to assess the total amount of compensation as found by the jury in the original proceedings to be paid to the owners of the property to be taken or damaged, and also assessed benefits against all of the tracts or parcels of land in the benefit district, including as well the tracts and parcels, the assessments upon which, under the original proceedings, had been paid to the city treasurer, as the tracts and parcels upon which payment of the assessments had been...