Thurlow v. Ross

• Decision Date: 24 May 1898
• Citation: 144 Mo. 234,45 S.W. 1125
• Parties: THURLOW et al. v. ROSS et al.
• Court: Missouri Supreme Court

45 S.W. 1125

144 Mo. 234

THURLOW et al. v. ROSS et al.

Supreme Court of Missouri, Division No. 1.

May 24, 1898.

EMINENT DOMAIN — AUTHORITY OF COMMISSIONERS — ASSESSMENT OF DAMAGES — CONSTITUTIONAL LAW — CHANGE OF HIGHWAY.

1. Under Rev. St. 1889, § 6570, providing that, in construing statutes, words imparting joint authority to three or more persons shall be construed as authority to a majority of such persons, it is not necessary that all three members of a commission to assess damages resulting from changing the location of a highway, appointed under Laws 1893, p. 223, requiring the appointment of three disinterested freeholders, should qualify and act, and the report of two commissioners is valid.

2. Under Const. art. 2, § 21, providing that compensation for private property taken for public use shall be ascertained by a jury or board of not less than three freeholders, the legislature has the right to provide for the assessment of damages caused by the location of a highway by less than three freeholders, the law permitting an appeal from such assessment, and giving the owner the right to have his damages ascertained by a jury on appeal.

3. Laws 1893, p. 222, providing the same method of procedure for changing highways as for establishing new ones, authorizes the changing of roads on any ground for which a new road might be established.

Appeal from circuit court, Gentry county; C. A. Anthony, Judge.

Petition to the county court of Gentry county, for change of the location of a public road, by A. Thurlow and others. James F. Ross and others applied to the county court to dismiss the petition, and from an order denying this motion they appealed to the circuit court, where the motion was granted. Thurlow and others appeal. Reversed.

McCullough, Peery & Lyons, for appellants. C. H. S. Goodman and T. M. Humphrey, for respondents.

WILLIAMS, J.

This proceeding, instituted in the county court of Gentry county, under the provisions of the act of March 23, 1893, for change of a public road, by 12 freeholders of the township in which such road is located, comes here by appeal from a judgment of dismissal in the circuit court, to which the case was taken from the county court. Two grounds are assigned in the motion of the land owners to dismiss, sustained by the circuit court. One is that only two of the commissioners appointed to assess the damages qualified as such, and hence it is claimed that the proceedings are void. The other alleges that the county court had no jurisdiction, because the petitioners were attempting to establish a new road under the guise of a change of road, and the petition did not contain the necessary averments for such change. The regularity of the proceedings in other respects is unchallenged.

1. The county court, on the 6th of February, 1895, appointed, by an order of record, three disinterested freeholders, possessing the qualifications required by law, as a board of commissioners to assess the damages to the land of respondents over which the road, as changed, would be located. One of these commissioners did not act. The other two qualified, and on the 7th of May, 1895, filed a report, signed by them, stating that the landowners would sustain no damages. An application of respondents to dismiss, on the ground that one of the commissioners failed to qualify or participate in the assessment, was denied by the county court. The respondents also asked that the amount of their damages "be assessed by a jury, as provided by law." This was sustained, and six freeholders were selected and impaneled in the county court, and, after hearing the evidence of both sides, by their finding declared that respondents would sustain no damages by the proposed change of road. The county court then made an order granting the change, etc., and respondents appealed to the circuit court. Here the motion to dismiss was renewed, and it was sustained, and in this we think the court committed error.

It is true the statute (Acts 1893, p. 223, § 3) requires the county court to appoint three disinterested freeholders to act as a board of commissioners, to assess the damages resulting to the owner by reason of the location of a new road, or the change of a road, upon his land. The legislature, however, has laid down certain rules for the construction of statutes....