Turlow v. Ross

• Decision Date: 24 May 1898
• Parties: Turlow et al., Appellants, v. Ross et al
• Court: Missouri Supreme Court

45 S.W. 1125

144 Mo. 234

Turlow et al., Appellants, v. Ross et al

Supreme Court of Missouri, First Division

May 24, 1898

Appeal from Gentry Circuit Court. -- Hon. C. A. Anthony, Judge.

Reversed and remanded.

McCullough Peery & Lyons for appellants.

(1) The report of the commissioners appointed to assess damages signed by a majority of them was legal and valid. Sess. Acts 1893, p. 223, sec. 3; R. S. 1889, sec. 6570; Moore v Wingate, 53 Mo. 398; Johnson v. Beasley, 65 Mo. 250; Quayle v. Railroad, 63 Mo. 473. (2) The defendants, under the circumstances disclosed by this record, will not be heard to say that their compensation has not been ascertained by a jury or board of commissioners of not less than three freeholders. That the constitutional provision has been complied with, and that the defendants by entering into the trial before the jury in the county court and then appealing from that verdict, have waived all irregularities in the report of commissioners, even if there were such, is established by the following authorities: Sedalia v. Railroad, 17 Mo.App. 105; In re Essex Avenue, 121 Mo. 98; Long v. Talley, 91 Mo. 305; Sutherland v. Holmes, 78 Mo. 399; Mills on Em. Dom., sec. 251; Leonard v. Sparks, 117 Mo. 103. A party may waive his constitutional right to have a jury trial. Merrill v. St. Louis, 83 Mo. 244; In re Essex Avenue, 121 Mo. 98; Railroad v. Town Site Co., 103 Mo. 469; O'Day v. Conn, 131 Mo. 325; Rothen v. Railroad, 113 Mo. 138. One jury trial is all a party is entitled to. Dill. Mun. Corp., sec. 439; State ex rel. v. Allen, 45 Mo.App. 567; Marshall v. Standard, 24 Mo.App. 193; Cooley, Const. Lim., p. 410. (3) The record shows, as above stated, that these defendants in their exceptions filed in the county court, prayed that their damages be assessed by a jury, as provided by law. The road law provides that this jury shall consist of six freeholders. The defendants entered into that trial without objection and appealed from the judgment. The former report of the commissioners was by these proceedings set aside, and thereafter became unimportant for any purpose in the case. (4) The jurisdictional steps and facts in a proceeding of this kind have been distinctly pointed out in a very similar case, and a comparison of the record in this case with the one considered in that, will show that the circuit court erred in dismissing the proceeding. Zeibold v. Foster, 118 Mo. 354.

C. H. S. Goodman and T. M. Humphrey for respondents.

(1) This is a proceeding in invitum for the condemnation and appropriation of private property for public use, and all the requirements of the law must be strictly complied with, and unless this be done the proceedings will be held wholly insufficient to vest the title to the real estate in the public. Ells v. Railroad, 51 Mo. 200; Cunningham v. Railroad, 61 Mo. 33; Lind v. Clemens, 44 Mo. 540; Leslie v. St. Louis, 44 Mo. 479; State ex rel. v. St. Louis, 67 Mo. 113; School District v. Dorton, 125 Mo. 439; Anderson v. Pemberton, 89 Mo. 61; Kansas City v. Ford, 99 Mo. 91; Railroad v. Young, 96 Mo. 39. (2) It is true that the statute provides that the report may be signed by a majority of the commissioners, but this implies that such number must qualify as will admit of a majority. "The rule permitting a majority to act implies that a full board, as required by law, is actually in existence. Thus, where by law a board can not consist of less than three members, and only two qualify, the two can not act, for there is then no board of which the two would constitute a majority." Mech. on Public Officers, sec. 575. (3) So far as our research discloses this point has not been the subject of adjudication by the appellate courts of this State, but has been the subject of decision by courts of last resort in other jurisdictions. Schenck v. Peay & Bliss, 1 Wool. C. C. (U.S.) 175; 2 Kent's Com., 293, note a, 633; Com. v. Com'rs, 9 Watts, 466; Green v. Miller, 6 Johns. 39; Kirk v. Ball, 12 Eng. Law and Eq., 385; Crocker v. Crane, 21 Wend. 211; Dougherty v. Hope, 1 Coms. 79; Downing v. Rugar, 21 Wend. 178; Perry v. Tynen, 22 Barb. 140; Williamsburg v. Lord, 51 Mo. 599; Ells v. Railroad, 51 Mo. 200. (4) Respondents further contend that the judgments of the Gentry circuit court was right, for the reason that there is no statute in this State authorizing the proceedings instituted by the plaintiffs. Revised Statutes 1889, section 7818, provides for a change of road where a landowner desires to inclose or cultivate land through which the road may run, but the petition must contain the necessary averments to bring it within the purview of the statute. This was expressly so held in Wilson v. Berkstresser, 45 Mo. 283. It will be seen that the legislature has omitted to specify in said act of 1893 under what circumstances a road may be changed, so that its provisions can only apply to changes of roads in cases already specified in the statute.

OPINION

Williams, J.

This proceeding, instituted in the county court of Gentry county, under the provisions of the act of March 18, 1893, for change of a public road, by twelve 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 landowners 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 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 sixth 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 others qualified, and on the seventh 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. In this we think the court committed error.

It is true the statute (Acts 1893, p. 223, sec. 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. Section 6570, Revised Statutes 1889, declares that "the construction of all statutes of this State shall be by the following additional rules, unless such construction be plainly repugnant to the intent of the legislature, or of the context of the same statute. . . . Second, words importing joint authority to three or more persons shall be construed as authority to a majority of such persons, unless otherwise declared in the law giving such authority." There is nothing in the road law, under which the county court was acting, indicating an intent that all the commissioners must qualify and act. Upon the contrary, it is declared that "the report of said board of commissioners, when signed by a majority of them shall be taken and considered as the report of all." (Sec. 3, acts 1893, p. 223.) This court said in Quayle v. Railroad, 63 Mo. 465: "What is the joint authority conferred upon the three...