State v. Wiethaupt

• Decision Date: 17 December 1910
• Citation: 133 S.W. 329,231 Mo. 449
• Parties: STATE ex rel. UNITED RYS. CO. et al. v. WIETHAUPT et al., Judges.
• Court: Missouri Supreme Court

133 S.W. 329

231 Mo. 449

STATE ex rel. UNITED RYS. CO. et al. v. WIETHAUPT et al., Judges.

Supreme Court of Missouri.

December 17, 1910.

1. STATUTES (§ 109)—TITLE—SUFFICIENCY.

The purpose of Const. art. 4, § 28 (Ann. St. 1906, p. 185) providing that no bill shall contain more than one subject, which shall be expressed in its title, is to prevent the public and the members of the Legislature from being misled as to the contents of a bill, and where the words in the title do not mislead as to what the bill contains, and they are not designed as a cover to incongruous legislation, the title is sufficient.

2. STATUTES (§ 110½)—TITLE—SUFFICIENCY.

The title of Laws 1909, p. 511, entitled "An act to amend" Rev. St. 1899, c. 107, art. 1, entitled "Ferries," is not so misleading as to render it obnoxious to Const. art. 4, § 28 (Ann. St. 1906, p. 185), providing that no bill shall contain more than one subject, which shall be expressed in its title, merely because chapter 107 (Ann. St. 1906, pp. 3589-3595) relates to "Fish, Protection and Preservation of," and article 1 thereof is entitled "Fish Commission," and, chapter 106 (Ann. St. 1906, pp. 3585-3588) entitled "Ferries," is not divided into articles, but relates only to the licensing and regulation of ferries.

3. STATUTES (§ 109)—TITLE—SUFFICIENCY.

The court, in determining whether the title to a bill is liable to mislead the members of the Legislature so as to make it obnoxious to Const. art. 4, § 28 (Ann. St. 1906, p. 185), providing that no bill shall contain more than one subject, which shall be expressed in its title, may trace the act in its passage through the Legislature.

4. FERRIES (§ 2)—STATUTES—WHAT CONSTITUTES A "FERRY."

The term "ferry," in Rev. St. 1899, c. 106 (Ann. St. 1906, pp. 3585-3588), entitled "Ferries," presupposes a road traveled by the public which is bisected by a water course, so

that a ferry serves the purpose of a bridge; a ferry in its general sense being a highway over narrow waters and a continuation of a highway from one side of the water over which it passes to the other, and is for the transportation of passengers, their teams, and vehicles and other property (quoting Words and Phrases, vol. 3, pp. 2749-2751).

5. STATUTES (§ 110½)—TITLE—SUFFICIENCY.

The title of Laws 1909, p. 511, entitled "An act to amend" Rev. St. 1899, c. 107, art. 1, entitled "Ferries," by adding new sections relating to the establishment of wharfs, piers, and ferry landings, is misleading because of the use of the word "ferries," thereby implying that the wharfs, piers, and ferry landings are designed to be in aid of ferries, present or future ; whereas, it is not essential to the fulfillment of the statute that there should be any ferry.

6. EMINENT DOMAIN (§ 71) — TAKING OF LAND FOR PUBLIC USE—COMPENSATION.

A statute providing for the taking of private property for public use must provide for the payment of compensation out of the public Treasury, or by special tax bills in a district specially benefited, except where the party seeking to take the land is a public utility corporation, in which case it must furnish the money, or where land is taken for a road for the benefit of the petitioner depositing in court the estimated amount of damages.

7. EMINENT DOMAIN (§ 13) — TAKING OF LAND FOR PUBLIC USE—COMPENSATION.

Private property may not be taken under the guise of a pretended public use when in fact it is only for the convenience of private persons who are willing to pay for it.

8. EMINENT DOMAIN (§ 25) — TAKING OF LAND FOR PUBLIC USE—COMPENSATION.

Laws 1909, p. 511, authorizing the establishment of wharfs, piers, and ferry landings on waters not on the premises of one person and outside the limits of a municipality, for the purpose of receiving and unloading passengers or freight, etc., violates Const. art. 2, § 20 (Ann. St. 1906, p. 146), forbidding the taking of private property for a private use, because it permits the taking of property for a use which is not a public use, on payment therefor by the parties seeking the land.

Kennish, J., dissenting.

In Banc. Prohibition by the State, on the relation of the United Railways Company and another, against John W. Wiethaupt and others, judges of the County Court of St. Louis County, to prohibit respondents from entertaining jurisdiction of a condemnation proceeding. Writ awarded.

Boyle & Priest, J. C. Kiskaddon, and T. M. Pierce, for relator United Rys. Co. Geo. W. Wolff, for relator Bluff Scenic Ry. Co. Stevens & Stevens and A. E. L. Gardner, for respondents.

GANTT, J.

This is an original proceeding in this court by which the relators ask a writ of prohibition to go to the respondents, the judges of the county court of St. Louis county, to prohibit them entertaining jurisdiction of a matter brought into that court on the petition of Jacob Studt, Jr., and others, asking that certain property of the relators be condemned and taken for a public wharf and ferry landing. The proceeding in the county court of which relators complain is founded on an act of the General Assembly entitled "An act to amend article 1, of chapter 107 of the Revised Statutes of Missouri, 1899, entitled `Ferries,' by adding six new sections thereto to be known as sections 7447a, 7447b, 7447c, 7447d, 7447e, and 7447f, relating to the establishment of wharfs, piers and ferry landings on the waters of this state whose banks are touched or bordered by the public highways of this state now or which may hereafter be established outside of incorporated cities, towns or villages, giving the county courts of said counties the right to condemn and appropriate land for such purposes." Approved June 1, 1909. Laws 1909, p. 511. Relators contend that that act is unconstitutional, being in violation of sections 20 and 30, art. 2, and section 28, art. 4 of the Constitution (Ann. St. 1906, pp. 146, 166, 185), in certain particulars stated in their petition.

The first and second sections of the act are as follows:

"Section 1. The county court of the several counties of this state shall have authority and are hereby empowered to establish public wharfs, piers and ferry landings for the use of the public on any of the waters of this state not entirely on the premises of one person, and outside of the limits of any incorporated town, city or village in this state, for the purpose of receiving and unloading passengers or freight on any public road of said county now or which may hereafter be established bounding or touching the banks of any of said waters, and for that purpose shall have the right to condemn such private property as may be necessary for the building of such wharfs, piers or ferry landings not exceeding one acre.

"Sec. 2. Upon the petition of five or more resident freeholders living in the immediate vicinity of said proposed wharf, pier or ferry landing, setting forth that they are the owners of land in the immediate vicinity of said wharf, pier or ferry landing, and that the banks of said waters are touched or bounded by a public road of said county at the point where such wharf, pier or ferry landing is sought to be established and that it is necessary in order to receive and unload freight and passengers on said public road that a public wharf, pier or ferry landing, be made at some point where the said road touches, or near the banks of said waters, fully describing the place where said wharf, pier or ferry landing, is sought to be established and the quantity of land not exceeding one acre that may be necessary for the purpose of said wharf, pier or ferry landing, and the names of the owner or owners of the land on which said wharf, pier or ferry landing is supposed to be established, the county court of the county in which said land is sought to be appropriated is situated shall make an order that the said owner or owners named in said petition shall be notified that said petition has been filed and that the same will be heard by the county court of said county on the day fixed by the court, which shall not be less than fifteen days nor more than twenty days after the filing of said petition, which notice, together with a certified copy of said petition shall be served upon the owner or owners named in said petition, of the land sought to be appropriated at least ten days before the day fixed by said court for the hearing of said petition."

Section 3 provides that on the day named the county court shall proceed to hear the evidence, and "if the court finds that said wharf, pier or ferry landing is necessary for public use as aforesaid" it shall order the county surveyor to immediately lay off the wharf, pier, or ferry landing, and if he can agree with the owners as to the price to be paid for the property taken or damages for the same he is to report it to the court, and if the owners will not agree he must so report, whereupon the county court will appoint three commissioners to assess the damages, and, when the commissioners make their award, "the county court or the petitioners, upon an order of the county court, shall immediately pay or tender to the owner or owners of the land so appropriated the amount of damages so awarded to each of said land owners, and the county shall be entitled to the immediate possession of the land condemned for the purposes aforesaid." Section 4 provides that if the owners are not satisfied with the award of the commissioners they may demand a jury to assess the damages, and thereupon a jury of six men may be impaneled "to try the question of damages." And section 5 provides that either the petitioners or the landowners may appeal to the circuit court for a trial on the question of damages, but neither the application for the jury in the county court, nor the appeal to the circuit court, shall operate as a supersedeas or prevent the county court from taking immediate possession of the land. There is no appeal allowed except on the question of damages and no provision for...