91 Mo. 54 | Mo. | 1886
The plaintiff is a city of the fourth class, under the general laws of this state. The mayor and aldermen passed an ordinance establishing an alley in block twenty-three, on property owned by defendant, in the rear of a row of business houses fronting upon one of the streets. The ordinance declares that the property taken “ shall thereafter be and remain a public alley, in all respects, in the city of Savannah.” Commissioners were appointed to assess damages to defendant for the property ; and to their report he filed exceptions, in the circuit court, under the provisions of section 4940, Revised Statutes. On trial, the circuit court instructed the jury that, whether the contemplated use was really a public use, was a question for them to determine, and for their guidance, various instructions were given' in that behalf ; verdict for defendant.
The only matter which we need consider is, whether this question should have been submitted to the jury at all. Section 20, article 2, constitution of 1875, provides “that, whenever an attempt is made to take private property for a use alleged to be public, the question
Now the constitutional provision of this state, before quoted, makes it the duty of the courts to determine whether the use be a public use, or not, without any regard to a legislative assertion upon the subject. They are freed from the influence of any expressed judgment of the legislature in that behalf, and enjoined to determine the question, wholly regardless of what that branch of the state government asserted upon the subject. The method, however, by which the courts determine whether the use is a public use, remains the same as before. Neither the constitution, nor any statute, requires that question to be submitted to a jury. The courts will decide the question without the aid of a jury. In most cases there is, and can be, no fact for the jury to determine. Statutes often require a finding by the court or commissioners, that the proposed improvement is necessary for the public convenience ; but that is another and a different question from the one whether the use is really public. In the present case, the mayor and aldermen have ample power, by ordinance, to establish flew streets and alleys and to cause property to be condemned therefor. The alley in question is opened, as the ordinance says, for the purpose of grading and improving the same, and is to be and remain a public alley, in all respects. All this is done at the public expense, and the alley becomes a part of the system of streets and alleys of the city. That the use is a public one is manifest on the face of the record. Bill, on Mun. Corp. [3 Ed.] sec. 595. The court should have so ruled without submitting any such issue to the jury. The use being public, the necessity of exercising the power to
The judgment is, therefore, reversed and the cause remanded.