186 Mo. 285 | Mo. | 1905
Respondent, a city of the fourth class, seeks by condemnation proceedings under the exercise of the right of eminent domain, to extend one of its thoroughfares (First street) by virtue of sections 5990 and 5993, Revised Statutes 1899.
Appellant Clark, owning land taken by the proceedings, appealed to the circuit court of Atchison county from the award of the mayor’s jury, and, appearing for that purpose, filed a motion, bristling with points, to quash and dismiss the proceedings — raising thereby, among other questions, the constitutionality of said section 5993. Unsuccessful in his motion, he withdrew from the new inquisition of damages in that court, stood mute, and, when judgment de novo went against him, filed his unavailing motion for a new trial and appealed here without a bill of exceptions.
In this court appellant presses his constitutional point, and furthermore insists that the court below committed error in overruling his motion to quash and dismiss.
At the threshold of the case two preliminary questions confront us: first, is the constitutional point duly presented; and, second, in the absence of a hill of exceptions, can we look into the motion to quash and dismiss, or consider the error, if any, in overruling it? Of these seriatim.
A constitutional point is no such magicial “open sesame” or shibboleth as that its hare mention in a brief gives this court jurisdiction of an appeal. A constitutional point must he squarely raised below, the ruling of the trial court properly challenged thereon, exception saved and the exception preserved in the only known repository for exceptions, to-wit, a hill of exceptions, or else such constitutional point must appear imbedded in the record proper, before it can get here
Was the motion to quash the proceedings and dismiss á part of the record proper, so that, in spite of the absence of a hill of exceptions, it comes before us? We think not. The learning of the case law is against the proposition, and if litigants, lightly indulging in the daring of mere innovation at the expense of experience and discretion, choose to travel extra viam instead of safely keeping within the main-traveled roads of appellate practice, long established and well marked out, they take the chance of finding themselves out of court instead of in, at the end of their wandering. Over and over again it has been held that the whole brood of motions, interlocutory in their character, motions for a new trial and in arrest, motions to make more certain, motions to strike out, to set aside a nonsuit, to dismiss, for judgment on the pleadings, to quash executions, to quash indictments and other motions of that ilk and kidney, become a part of the record only by being preserved in a hill of exceptions. [Ryan v. Growney, 125 Mo. 474; State v. Hicks, 160 Mo. 468; Nickerson v. Peery, 163 Mo. 77; Smith v. Baer, 166 Mo. 392; Nishnabotna Drainage Dist. v. Campbell, 154 Mo. 151; Sternberg v. Levy, 159 Mo. 617; State v. Wilhoit, 142 Mo. 619; Force v. Van Patton, 149 Mo. l. c. 448.]
There is indeed an exception to the general rule, and it has accordingly been held that motions, which when served are in effect due process of law, or original and independent proceedings, are considered as pleadings and part of the record proper. [Wilson v. Railroad, 108 Mo. l. c. 602; State ex rel. v. Court of Appeals, 87 Mo. 374; Ryan v. Growney, supra.]
There is the still further exception (if exception it he called) that a demurrer, stood on, is a pleading
But appellant’s motion to quash the proceedings and dismiss does not stand on the same footing as a demurrer, or a motion which is an original and independent proceeding, or which fills the office of due process of law. We are disinclined to carve out a new exception to the general rule and thereby confuse the practice, and therefore rule that the constitutional question and the motion to quash and dismiss the proceedings are not before us.
Respondent brings here by way of an abstract all the evidence introduced in the circuit court. Appellant files a motion to strike it out. The motion is sustained. Evidence can only reach us through a bill of exceptions.
The constitutional question being out of the way and the amount of the money judgment for damages being trivial, the question presents itself: has this court jurisdiction of this appeal? Such question is not presented by the briefs, but jurisdictional questions obtrude themselves at any step or stage of a suit and will be considered sua sponte.
It has been held that the title to real estate is involved in condemnation proceedings instituted by railroads. [State ex rel. v. Rombauer, 124 Mo. 598; Railroad v. Lewright, 113 Mo. l. c. 666.] And in the establishment of public highways by counties. [Nickerson v. Lynch, 135 Mo. l. c. 475; Baubie v. Ossman, 142 Mo. 499.] And in the establishment of private ways of necessity. [Wells v. Harris, 137 Mo. l. c. 515.] And in cases involving a dedication of ground to public use. [Baker v. Squire, 143 Mo. 92.]
It remains, therefore, no ionger an open question in Missouri as to whether or not this court, because of the constitutional provision giving it appellate jurisdiction of cases involving the title to real estate, has jurisdiction of condemnation proceedings based on the ex
A petition was presented to the board of aldermen of the city of Tarkio numerously signed by citizens and praying the widening and extension of First street, and a resolution was passed by the board requiring said street to be widened and extended. Neither this petition nor this resolution is contemplated by the statutory grant of power in respondent’s charter. The resolution was not passed with the formality of an ordinance, it is not signed by the mayor and does not rise to the dignity of an ordinance.
The mayors of cities of the fourth class (section 5955) are a part of the law-making power.
Section 5979, Revised Statutes 1899, reads: “The cities coming under the provisions of this article, .in their corporate capacities are authorized and empowered to enact ordinances for the following purposes; . . . second, to open and improve streets, avenues, alleys and other highways . . .”
Section 5990 reads: 1 ‘ The board of aldermen shall have power to create, open and improve any . . . street, avenue, alley or other highway, old or new, . . . Provided, that all damages sustained by the citizens of the city or owners of the property therein shall be ascertained as prescribed in that portion of this article relating to the condemnation of private property for public use . . .”
Section 5993 (so far as pertinent to this case) reads: “Private property may be taken for public use for the purpose of establishing, opening, widening, extending or altering any street, avenue, alley . . . but in every case the city shall make to the person or persons whose property shall be taken or injured thereby adequate compensation therefor, to be deter
Reasoning by analogy we conclude that the ordinance in the case and documents, if any, called for therein, occupy the place of a petition in a road case or ordinary suit, the notice to be served personally on interested parties five days in advance of the hearing is the summons or due process of law, the report of the jury is the verdict or special finding, and they, with the appointment of the jury and its entry on the city records, constitute the record proper, together with the judgment of the circuit court.
It has been held that in a collateral attack on condemnation proceedings, where the record is silent in certain particulars, presumptions may be indulged in favor of correct action. [Leonard v. Sparks, 117 Mo. 103.] But this is a direct attack and the appellant challenges the validity of these proceedings on appeal.
It is contended by appellant, among other things, that the proceedings on their face, (1) do not show that a jury of disinterested freeholders was appointed by the mayor as provided by section 5993, (2) do not show the five days ’ notice or any notice to interested parties provided by said section, (3) do not show that a benefit district was marked out by ordinance before the appointment of the jury, and (4) it is contended that the ordinance and proceedings are fatally indefinite and vague. Many more contentions are pressed upon us by
First, the record proper is silent as to whether the mayor’s jury were disinterested freeholders or-freeholders at all. Neither in the appointment of the jury, nor in their report, nor in the proceedings of the board of aldermen, nor in the subsequent judgment of the circuit court, is this statutory qualification of the jury recited as a fact. It has been held that such recital in the record is a jurisdictional fact and its absence fatal to the proceedings. [Fore v. Hoke, 48 Mo. App. 254, and cases cited; Jones v. Zink, 65 Mo. App. 409; Sutherland v. Holmes, 78 Mo. 399.]
Second, the five days’ notice provided by section 5993, and which performs the office of a summons and gives those interested their day in court, is not shown by the record, nor does the record show that'appellant Clark appeared and thereby waived the notice. Such notice or its waiver is a jurisdictional fact and should appear on the face of the proceedings. [2 Dill. Mun. Corp. (4 Ed.), sec. 607; Railroad v. Young, 96 Mo. 39; Zimmerman v. Snowden, 88 Mo. 218; Daugherty v. Brown, 91 Mo. 26; Sedalia v. Gallie, 49 Mo. App. 392.]
Third, a plain statutory condition precedent to the right of a city of the fourth class, under section 5993, to condemn land for a street, is the defining by ordinance of a benefit district or limit within which property is deemed benefited by the board of aldermen. Such mandatory condition precedent was disobeyed in this case. No such ordinance was passed, nor did the jury assess any benefits. It is true that the city out of its treasury, as shown by a subsequent ordinance, appropriated funds to pay appellant the damages awarded him by the jury. We are not called upon to decide whether or not a city of the fourth class might have paid a deficit out of its funds, had the assessment of benefits fallen short of its mark, nor are we called upon to decide whether or not such city might anticipate the
Fourth, nowhere in the record proper do the length and the termini of the proposed extension of First street appear, nor is the land proposed to be taken defined by metes, bounds or calls, or by maps, plats or documents called for, so that what is uncertain might be made certain by such aids.
No man could locate the extension or the land taken by aught appearing in the record proper. Under such condition of things the proceedings are void for indefiniteness. [Rose v. Kansas City, 128 Mo. 135; Sutherland v. Holmes, supra; 2 Lewis on Em. Dom. (2 Ed.), sec. 510; Elliott on Roads and Streets (2 Ed.), sec. 357.]
Proceedings taking private property for public use operate in invitum, in derogation of common law and common right. They are regarded as strictissimi juris. The power is a high and stringent one, courts inflexibly require it to be pursued strictly, and the times are such that we ought not to abate one jot or one tittle of vigilance in preserving the rights of the citizen to his property.
Because the proceedings are void, the cause is reversed.
