Union Depot Co. v. Frederick

• Decision Date: 25 March 1893
• Citation: 21 S.W. 1130
• Parties: UNION DEPOT CO. v. FREDERICK et al.
• Court: Missouri Supreme Court

21 S.W. 1130

UNION DEPOT CO. v. FREDERICK et al.

Supreme Court of Missouri.

March 25, 1893.

For majority opinion, see 21 S. W. Rep. 1118.

BURGESS, J., (dissenting.)

I regret that I cannot concur in the majority opinion in this case, and in addition to what has been said by Sherwood, J., in his dissenting opinion, to which I agree, I desire to give some additional reasons, which seem to me conclusive. It has been uniformly held by this court that in condemnation proceedings, being in derogation of common-law right, the utmost strictness is required in order to give them validity; and that, unless it appear from the face of the proceedings that every essential prerequisite of the statute conferring the authority be complied with, every step will be coram non judice. Ells v. Railroad Co., 51 Mo. 200; Cunningham v. Railroad Co., 61 Mo. 33; Blize v. Castlio, 8 Mo. App. 290; Anderson v. Pemberton, 89 Mo. 67, 1 S. W. Rep. 216. In the case of Fore v. Hoke, 48 Mo. App. 254, it was recently held by the St. Louis court of appeals, Thompson J., delivering the opinion of the court, that a judgment of condemnation is void if the record fails to show affirmatively that the commissioners appointed to assess damages were freeholders resident of the county, as required by the statute, but merely showed that the commissioners were householders resident in the county. The proceedings to condemn the property of defendants were under Gen. St. 1865, c. 66, p. 351 et seq; and, although they owned separate and distinct interests therein, damages were assessed in a lump, and not according, as I contend, to the express provisions of the statute. Section 1 of said statute provides that three disinterested commissioners shall be appointed to assess the damages which such owners may severally sustain in consequence of the establishment, erection, etc., while section 5 provides that "any number of owners, residents in the same county or circuit, may be joined in one petition, and the damages to each shall be separately assessed, by the same commissioners." In the absence of any assessment by the commissioners of the damages to each one of the parties whose property was sought to be condemned, how are such damages to be ascertained? Not by the court, because no such power is conferred upon it in cases of this kind. Suppose the commissioners had made no report or no assessment at all, the court or judge could have done nothing less than have appointed other commissioners. The...