State v. Seehorn

Decision Date26 November 1912
PartiesSTATE ex rel. GRAHAM et al. v. SEEHORN, Judge.
CourtMissouri Supreme Court

Graves and Woodson, JJ., dissenting.

In Banc. Original prohibition proceeding by the State, on the relation of George S. Graham and others, against Thomas J. Seehorn, Judge of the Circuit Court of Jackson County. On demurrer to the return. Preliminary rule quashed and writ denied.

Douglass & Watson, Ball & Ryland, and E. J. White, all of Kansas City, for relators. A. F. Evans, John G. Schaich, Hunt C. Moore, A. F. Smith, John G. Park, and Jay M. Lee, all of Kansas City, for respondent. C. S. McLane, W. C. Culbertson, and R. W. Crimm, all of Kansas City, amici curiæ.

KENNISH, J.

This is an original proceeding by prohibition. The relators are owners of real estate in a proposed benefit district in a certain condemnation proceeding in Kansas City. Respondent is judge of division No. 3 of the circuit court of Jackson county, in which division the said condemnation proceeding is now pending. The purpose of this suit is that respondent, as judge of said court, may be prohibited by the writ of this court from further holding cognizance of said condemnation proceeding. A preliminary rule in prohibition was granted upon the filing of the petition. In due time respondent filed his return thereto, and relators filed a demurrer to the return. Upon the issues of law thus presented the case stands before us for decision.

There is a companion case to the case in hand, entitled State ex rel. Tuller et al. v. Seehorn, 151 S. W. 724, now under submission in this court. It was brought at the same time, arises out of the same litigation nisi, and is against the same respondent; but the relators therein are the owners of the property sought to be taken for public use in said condemnation proceedings, and they ask this court to issue its writ of prohibition against the respondent upon grounds different from and antagonistic to those relied upon by relators in this case.

The facts admitted by the pleadings herein, and as gathered from the petition and return, are substantially as follows:

In June, 1909, ordinance 3,209 was enacted by the common council of Kansas City, for the purpose of widening and improving Sixth street between Broadway and Bluff streets, and to that end providing for the condemnation of the necessary adjacent property; also creating a benefit district and fixing the limits thereof, in which, for benefits received, the property should be subject to the payment of special tax assessments to meet the cost of the proposed improvement. The municipal court, after a plat of the property to be taken had been delivered to the clerk thereof, made an order directed to "all persons whom it may concern," appointing a day and place for impaneling a jury to ascertain the compensation for the property to be taken and to make assessments to pay the same, as required by section 2 of article 6 of the charter of said city. A copy of the order was published in the proper newspaper, and the parties owning real estate proposed to be taken were duly served with a copy of said order. In accordance with the order and notice a jury was impaneled, and, after hearing the evidence and viewing the property, it returned a verdict fixing and allowing the compensation for the property to be taken, assessing against the city the amount of the benefits to the city and to the public, and assessing against the several lots and parcels of property within the benefit district the balance of said compensation, as a special tax and assessment, according to the benefits received. The verdict was confirmed by the common council, judgment rendered thereon by the municipal court, and, no appeal having been taken therefrom, the verdict was sent to the office of the city treasurer for the collection of such special assessments, and more than one-half of the total amount so assessed was paid.

Some of the owners of property in the benefit district refused to pay their assessments and brought an injunction suit against the city to restrain and enjoin the collection of said assessments, upon the ground that the notice of the order for the impaneling of the jury by the municipal court had not been published as required by the provisions of the charter, and upon the further ground that the municipal court was without jurisdiction to proceed under ordinance 3,209, and that the proceedings in said municipal court were null and void. Upon the assumption that the publication of said order was defective and the subsequent proceedings invalid, another ordinance, 6,686, was introduced in the common council for the purpose of repealing ordinance 3,209 and beginning the proceedings for the proposed improvement anew. Thereupon the owners of the property to be taken, and for which compensation had been allowed pursuant to ordinance 3,209, and which was also proposed to be taken under ordinance 6,686, brought an injunction suit against the city to restrain and enjoin the officers thereof from repealing said ordinance 3,209, upon the ground that compensation had been awarded for the property so taken and that, as the verdict and judgment therefor was unappealed from, the same had become a final judgment under which rights had become vested and which could not be set aside or annulled by enactment of the common council. Both injunction suits were heard before respondent at the same time, and the issues were found in favor of the plaintiffs in each case. In the injunction suit brought by the property owners of the benefit district who had refused to pay their assessments (relators herein), the court in its decree, after finding that "said proceedings, verdict, confirmation thereof, and judgment is, as to these plaintiffs and each of them and as to their respective properties, null and void," proceeded as follows: "It is therefore considered, ordered, adjudged, and decreed that said verdict, judgment, and proceedings, in so far as they affect or purport to affect plaintiffs or any of them or any of their said several properties, be and the same are hereby annulled and for naught held; that the several assessments against the respective properties aforesaid of the plaintiffs and each of them be and the same are hereby set aside and annulled; that defendants Kansas City, M. A. Flynn, city clerk, U. S. Weary, clerk of said municipal court, and the officers and agents of said city, be and they are each of them perpetually restrained and enjoined from making out, certifying, or attesting any tax bills against the several properties of the plaintiffs or any of them under and by virtue of said assessments; and that plaintiffs have and recover of and from defendant Kansas City the costs herein expended and have execution therefor." No appeal was taken from the judgment and decree in either of said injunction suits.

Section 23 of article 6 of the charter of Kansas City, under which said condemnation proceedings were being prosecuted, is as follows: "When by reason of any error, defect or omission in any proceedings, or in the verdict or judgment therein that may be instituted under the provisions of this article, a portion of the private property sought to be taken, or some interest therein, cannot be acquired, or an assessment is made against private property which cannot be enforced or collected, or when, by reason of any such defect, private property in the benefit district is omitted, the city may, by ordinance, institute, carry on and maintain supplemental proceedings to acquire the right and title to such property or interest therein intended to be taken by the first proceeding, but which cannot on account of such defect, error or omission, be acquired thereunder, or to properly assess against any piece or parcel of private property against which an assessment was in the first proceeding erroneously made or omitted to be made, the proper amount such private property, exclusive of the improvements thereon, is benefited by the proposed improvement to be determined by the verdict of the jury in such supplemental proceedings; and the original assessment may be revived, corrected, increased or diminished as may be necessary or equitable under the provisions of this article for the original proceedings. Such supplemental proceedings shall be instituted and conducted as to the particular piece or pieces of private property sought to be acquired or...

To continue reading

Request your trial
46 cases
  • Turner v. Kansas City
    • United States
    • Missouri Supreme Court
    • December 3, 1945
    ... ... 743; Hayes v. Poplar Bluff, 173 S.W. 676; Glencoe Lime, etc., Co. v. St. Louis, 108 S.W. (2d) 143. (2) Cities are creatures of the state. They have no powers which are not derived from and subordinate to the state. All such powers must come from either a constitutional or legislative ... Court en Banc again had trouble with what constituted municipal and governmental powers in 1912 in State ex rel. Graham v. Seehorn, 246 Mo. 541, 151 ... ...
  • Coleman v. Kansas City, 39027.
    • United States
    • Missouri Supreme Court
    • July 3, 1944
    ... ... Sec. 10, Art. X, Mo. Const.; 1 McQuillin on Municipal Corp. (2 Ed.), p. 592; State ex rel. Carpenter v. St. Louis, 318 Mo. l.c. 894, 2 S.W. (2d) 713; Kansas City v. J.I. Case Threshing Machine Co., 87 S.W. (2d) l.c. 205, 337 Mo ... 466; Brunn v. Kansas City, 216 Mo. l.c. 117, 116 S.W. 446; State ex rel. v. Lucas, 317 Mo. 225, 296 S.W. 781; State ex rel. v. Seehorn, 246 Mo. 541, 151 S.W. 716; Land v. Boruff, 295 Mo. 28; Kansas City v. Case Threshing Mach. Co., 87 S.W. (2d) l.c. 201, 337 Mo. 913. (7) Said ... ...
  • Turner v. Kansas City
    • United States
    • Missouri Supreme Court
    • December 3, 1945
    ... ... 743; Hayes v. Poplar Bluff, 173 S.W ... 676; Glencoe Lime, etc., Co. v. St. Louis, 108 ... S.W.2d 143. (2) Cities are creatures of the state. They have ... no powers which are not derived from and subordinate to the ... state. All such powers must come from either a constitutional ... Court en Banc again had trouble with what ... constituted municipal and governmental powers in 1912 in ... State ex rel. Graham v. Seehorn ... ...
  • Coleman v. Kansas City
    • United States
    • Missouri Supreme Court
    • July 3, 1944
    ... ... collecting taxes for, municipal corporations. Sec. 10, Art ... X, Mo. Const.; 1 McQuillin on Municipal Corp. (2 Ed.), p ... 592; State ex rel. Carpenter v. St. Louis, 318 Mo ... l.c. 894, 2 S.W.2d 713; Kansas City v. J.I. Case ... Threshing Machine Co., 87 S.W.2d l.c. 205, 337 ... Kansas City, 216 Mo. l.c. 117, ... 116 S.W. 446; State ex rel. v. Lucas, 317 Mo. 225, ... 296 S.W. 781; State ex rel. v. Seehorn, 246 Mo. 541, ... 151 S.W. 716; Land v. Boruff, 295 Mo. 28; Kansas ... City v. Case Threshing Mach. Co., 87 S.W.2d l.c. 201, ... 337 Mo. 913 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT