237 S.W.2d 118 | Mo. | 1951
Lead Opinion
[ 119] This ease conies here on transfer from the Kansas City Court of Appeals under Sec. 10, Art. V, Const. Mo. 1945. The opinion of that court is reported in 231 SW. (2d) 849, It was a proceeding in the circuit court brought by Kansas City in May, 1948, under Art. VI of its Charter [1946 Revision] for the condemnation of lands owned by the defendants-appellants, and others, for public park purposes. In the assessment of appellants’ damages for the appropriation of their lands the cause was tried to. a jury of six freeholders in conformity with See. 128 and several subsequent sections of the City Charter.
In their exceptions to the assessment report of the six freeholders— which exceptions the trial court overruled — appellants raised for the first time the point that their damages should have been assessed by a common law jury of twelve persons under a recently enacted statute, Laws Mo. 1945, p. 1072. And that is the sole issue on this appeal. The statute broadly provides: “Any plaintiff or defendant, individual or corporate, shall have the right of trial by jury of twelve ’(12) persons, if either party file exceptions to the award of commissioners in any condemnation case.” [Italics ours]
The ultimate point for determination is whether this statute is controlling- as against the requirement in Kansas City’s Charter of a jury of six freeholders, when the question is viewed in the light of several provisions of our Constitution. For the last 75 years the basic sections thereof concerning eminent domain proceedings have been Sec. 21, Art. II, Const. Mo. 1875 and Sec. 26, Art. I, Const.. Mo. 1945, both of which provide: “That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be provided by law * * [Italics ours. The word “prescribed” was used instead of “provided” in the 1875 Constitution].
But we think the word “corporationas used in said Sec. 4, Art’s XII and XI, in the respective Constitutions clearly refers to private or business corporations, and not to municipal corporations. A well settled distinction exists between the two. City of Webster Groves v. Smith, 340 Mo. 798, 800(1), 102 SW. (2d) 618, 619(1) ; 9 Words & Phrases (Perm. Ed.) 712. And as just pointed out this Sec. 4 in the 1875 Constitution specified an incorporated company — not a city or town. The fact is further evident from the provisions of the preceding Sections 1 and 2 of the same Art. XI, Const. Mo. 1945 [and the corresponding sections in Const. Mo. 1875], Sec. 1 provides the term corporation as there used, “shall be construed to include all joint stock companies or associations having any powers or privileges not possessed by individuals or partnerships.” This obviously cannot be construed to refer to municipal corporations. And Sec. 2 provides: “Corporations shall be organized only under general laws. No corporation shall be created, nor shall any existing charter be extended or amended by special law * * In our view this Section 2 likewise refers only to private or business corporations, and is designed to promote uniformity in their organization and to prevent discrimination through special legislation.
It is true Art. IX, Sec. 7, Const. Mo. 1875, and Art. VI, Sec. 15, Const. Mo. 1945, similarly require the General Assembly to provide by general laws for the organization and classification of cities and towns into classes not. exceeding four. And thereby most municipal corporations also are brought under general laws. But Aid. IX, Sec’s. 16 and 17, Const. Mo. 1875, and Laws Mo. 1921, p. 701, empowered any city having a population of more than 100,000 inhabitants to frame, adopt and amend in a prescribed manner a special charter for its own government, “consistent with and subject to' the Constitution and laws of the state.” [Italics ours]. It did not say the general laws. And Art. VI, Sec’s 19 and 20, Const. Mo. 1945,
When the Constitution of 1875 was adopted Kansas City and St. Louis were the only cities in the State having a population exceeding 100,000. Both have always operated under special charters.' From the beginning the Kansas City Charter has required a jury of six: freeholders (or householders) in eminent domain proceedings.
It is true that when a city belongs in one of the four classes created by the Legislature under direction of Art. IX, Sec. 7, Const. 1875, Art. VI, Sec. 15, Const. 1945, supra, and therefore is'subject to the general laws of the State, then a statute requiring [121] a jury of twelve persons in eminent domain proceedings will be binding upon it. St. Joseph v. Geiwitz, 148 Mo. 210, 216-7 (3), 49 SW. 1000(3). A number of Missouri statutes so requiring are cited in Mallette v. U. S., 137 Fed. (2d) 95, 97.
One of these is Sec. 7376, R. S. 1939, Mo. R. S. A., which, under Sec. 7373, R. S. 1939, Mo. R. S. A. is applicable to all cities and towns, and therefore would include both classified and special charter cities. But the proceeding there is not in eminent domain. It does not contemplate the taking of private property for public use, but only the collection of consequential damages to property not taken, occasioned by changing the grade or lines of an abutting street or alley or the construction of a public improvement. And the special remedy afforded thereby may be invoked even after the damage has been done. Markowitz v. Kansas City, 125 Mo. 485, 28 SW. 642, 46 A. S. R. 498; Blackwell v. City of Lee’s Summit, 326 Mo. 491, 498-9 (2, 3), 32 SW. (2d) 63, 66 (3, 4).
The second, or J. I. Case, decision involved the validity of an occupation tax levied on the defendant by Kansas City on a floor space basis, in violation of a State statute which permitted such taxes only on an annual sales basis. The City asserted the power to levy the tax under its Special Charter. The decision held the power to tax is a governmental function inherent in the State, but conceded it is often difficult to determine the border line between State governmental functions and similar corporate functions of municipal corporations under th.eir Special Charters. This is the decision chiefly relied on by appellants.
The third, or Reynolds-Jost, case was in mandamus to compel the mayor and council of Kansas City to appropriate the amount budgeted by the Board of Police Commissioners under the statute for maintenance of the metropolitan police force of the city for one year. This court held the exercise of the police power is a matter of State concern and that it was the mandatory duty of the City to appropriate the amount necessary to support the police force though operated by a board of police commissioners appointed by the Governor. However this decision quoted with approval from another, State ex rel. Goodnow v. Police Com’rs, 80 Mo. App. 206, 215 [affirmed 184 Mo. 109, 132, 71 SW. 215, 220], pointing out that in matters of purely municipal concern, the provisions of the Kansas City Charter supersede the state law on the same subject, as in eminent domain proceedings, citing the Field case and the Marsh case, supra.
The Meyer case, supra,
In our opinion these four decisions invoked by appellants do not overturn [or intend to do so] the ten decisions- .earlier cited,
However the effect of the 1945 statute set out near the beginning of this opinion, on which appellants also rely, should be considered. That statute does provide that any plaintiff or defendant, individual or corporate, shall have the right of trial by a jury of twelve persons, if either party file exceptions to the award of commissioners in any condemnation case. We think the word “corporate” in this new statute means no more than does the word “corporation” in Art. XI, Sec. 4, Const. Mo. 1945. That is to say both words refer to private or business corporations, and not to municipal corporations. That the General Assembly did not intend by the new statute to depart from the provisions in the special charters of cities is shown by the last legislative pronouncement on the subject, Sec. 88.073(2), 1 Mo. R. S. 1949, which provides as follows:
“2. Whenever the charter of any constitutional charter city makes provision for the condemnation of property for public purposes and assessment of benefits therefor, such city may elect to proceed with such condemnation or assessment, ’ of both, in the manner provided in sections 88.010 to 88.070 or to proceed in the manner provided in its-charter.”
For the reasons stated the judgment of the circuit court is affirmed.
Laws Mo. 1852-3, Art. II, p. 244, referring to and adopting Art. VI, Sec. 2, St. Joseph Charter, Laws Mo. 1850-1, p. 93; Laws Mo. 1875, Art. VII, Sec’s 1 and 4, pp. 244, 246; Kansas City Charter, 1889, p. 66, Sec. 1; Charter, 1909, p. 252, Sec. 1; Charter 1925, p. 148, Sec. 128.
City of Kansas City v. Hill, 80 Mo. 523, 534-5(1); State ex rel. Kansas City v. Field, 99 Mo. 352, 12 SW. 802; Kansas City v. Marsh Oil Co., 140 Mo. 458, 464-473(2, 3), 41 SW. 943, 947(2, 3); Troost Ave. Cemetery v. Kansas City, 348 Mo. 561, 570(2), 154 SW. (2d) 90, 95(3).
Kansas City v. Vineyard, 128 Mo. 75, 79-80(4), 30 SW. 326, 327(2, 3); Kansas City v. Smart, 128 Mo. 272, 290-2 (7, 8), 30 SW. 773, 777-8(5); Kansas City v. Marsh Oil Co., supra; 140 Mo. l. c. 472, 41 SW. l. c. 947; Tremayne v. St. Louis, 320 Mo. 120, 137(4), 6 SW. (2d) 935, 941-2(7, 8, 9); St. Louis v. Smith, 325 Mo. 471, 476-8(2, 3), 30 SW. (2d) 729, 731(2-4); St. Louis v. Schopp, 325 Mo. 480, 484(2), 30 SW. (2d) 733, 734(2); State ex rel. St. Louis v. O’Malley, 343 Mo. 658, 665(3), 122 SW. (2d) 940, 943(4).
State ex rel. Rothrum v. Darby, 345 Mo. 1002, 1013(4), 137 SW. (2d) 532, 537(5-7); Kansas City v. J. I. Case Threshihg Machine Co., 337 Mo. 913, 922 (2), 926(3, 4), 87 SW. (2d) 195-203 (5-11); State ex rel. Reynolds v. Jost, 265 Mo. 51, 68(3), 71(4), 175 SW. 591, 593-5(2-3); St. Louis v. Meyer, 185 Mo. 583, 591, 84 SW. 914, 917.
Concurrence Opinion
I concur only in the result reached by Ellison, J., in the above opinion.
In this case individual defendants filed exceptions to an award of commissioners in a condemnation case instituted by Kansas City and requested an assessment of damages by a common law jury. The request was filed on May 4, 1949 and denied on May 13, 1949. Exceptors relied on Laws 1945, p. 1072, Sec. 1508. 1 Mo. R. S. A., now Sec. 523.060 R. S. 1949. At the time the 1945 Act became effective, Sec. 4, Art. XI, Const. Mo. 1945 provided that “the right of trial by jury shall be held inviolate in all trials of claims for compensation, when the rights of any corporation aré affected by any exercise of said power of eminent domain.” (Italics ours). Also, at that time a trial of exceptions to an award of damages in a condemnation ease before a common law jury was denied to individual defendants only in cities where by judicial decisions the charter provisions had been allowed to supersede the general law. (See cases cited in opinion
In this situation, if the judgment in this cause should be reversed and the cause remanded appellants (who were the individual defendants and exceptors in the cause below) would not now be entitled to a trial before a common law jury. I, therefore, concur only in the result reached in the opinion of Ellison, J.