Householder v. City of Kansas, 83 Mo. 488

Householder v. City of Kansas

83 Mo. 488 | Mo. | 1884

Henry, C. J.

This suit is for the recovery of damages against the City of Kansas for an alleged-injury to a lot owned by plaintiff, occasioned by a change in the grade of Delaware street, in said city. Plaintiff obtained a judgment, from which the defendant has appealed.

Prior to the adoption of the constitution of 1875, the owner had no redress for such injury to his property as is here complained of, this court having held in a line of decisions unbroken, but in one instance, that it was damnum absque injuria. In an elaborate brief the counsel for the city has made an ingenious argument in support of the proposition that section 21, article 2, of the constitution requires legislation to give it effect. That •section is as follows: “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 prescribed by law, and until the same shall be paid to the owner, or into ■court for the owner, the property shall not be disturbed or the proprietary rights of the. owner therein ■divested.”

Prohibitory clauses in constitutions are generally •self-enforcing; twenty sections of the second article of *493our constitution, including the one under consideration are prohibitory, and on examination all, or nearly all, oí them will be found to effect their purpose without the aid of legislation. The things therein named are prohibited. A legislative enactment could not do more toward the invalidation of the prohibited acts. It might provide penalties for breaches of a prohibitory constitutional provision where the constitution itself provides none. For instance no act of the legislature could make it any more illegal to take money from the public treasury in aid of any church. The general assembly might impose a penalty or other punishment for the act of taking money from the public treasury, in aid of a church, but without any such legislation, the courts would, under section 7, article 2, of the constitution, hold the act illegal and the person so taking the money responsible for it. The case of Fusz v. Spaunhorst, 67 Mo. 256, arose under a section of the constitution which declared that it shall be a crime, the nature and punishment of which shall be prescribed by law, for any president or other officer of any banking institution to assent to the reception of deposits or the creation of debts, by such banking institution after he shall have had knowledge of the fact that it is insolvent, or in failing circumstances, and any such officer shall be individually responsible for such deposits so received and all such debts so created with his assent. Sec. 27, article 12. This court held that this section required legislation to make it effective, but the difference between this and the section upon which this action is based is obvious. The former declares that a certain act shall be a crime, but its nature and punishment were to be prescribed by law. It was therefore incomplete in that respect, and amounted to little more than an authority to the general assembly to make it a crime, for it is difficult to conceive of a crime whose nature is not defined and for which no punishment is prescribed. With regard to the last clause, imposing a personal liability upon the offi*494•cer, etc., it was held incomplete because it did not declare to whom the officer should be liable, and the •court seems, also, to have been impressed with the idea that until the nature and punishment of the crime should be declared by the legislature no civil responsibility would be incurred, and that “both were designed to operate .together harmoniously.”

Section 21, article 2, declares that “private property ■shall not be taken or damaged for public use without just compensation,” and because the section, also, • declares that “such compensation shall be ascertained by .a jury or board of commissioners, etc., in such manner as may be prescribed bylaw,” it is contended that until the legislature shall have provided by law for the ascertainment of the compensation, none can be recovered and the city may, with impunity, alter or change the grade • of its streets. It must be borne in mind, without a law .authorizing it, a municipal corporation cannot take private property for public use. If its agents, by its • direction, should do so, they would be personally .liable to the owner in a civil action adapted to the case, but, if a municipal corporation is authorized to acquire property by purchase, condemnation or otherwise, and proceeds to take private property in violation of the law authorizing the acquisition, it will be liable to the owner. Dooley v. Kansas City, 82 Mo. 444.

By its charter the City of Kansas has authority, by ■condemnation proceedings and otherwise, to acquire and hold property to be used as streets and alleys and to •change and alter the grades of streets. Under section 21, the city can no more alter or change the grade of a street to the damage of a lot abutting upon it without compensation to the owner, than it can take private property for public use without compensation to the owner. The provision in relation to the ascertainment of such com.pensation applies equally to the taking and damaging of property. Will it be contended that until the legislature .shall have enacted a law prescribing a mode for the *495ascertainment of the compensation to the owner, a municipal corporation can seize and appropriate his property, and that he would be without remedy against the corporation % That a city, for the purpose of repairing its streets or bridges, may enter upon the property of a citizen and cut timber and quarry stone without incurring any liability whatever? Is this important constitutional provision intended to protect the citizen in his rights of property, a dead letter, or a living principle at the pleasure of the legislature ? Can the legislature, by mere inaction, nullify and set it aside ? It was held in the People v. McRoberts, 62 Ill. 40, under a similar provision of the constitution of that state, that it operated in prcBsenti without legislative action. So in the case of Johnson v. City of Parkersburg, 16 W. Va. 402; in Blanchard v. The City of Kansas, 16 Federal Reporter 444, in which the opinion was delivered by Justice Miller -of the Supreme Court of the United States and concurred in by Judges- McCrary and Krekel, it was held that the section of our constitution under consideration is self-enforcing, and the same was the decision rendered by judge Brewer in McElroy v. City of Kansas, 21 Federal Reporter 257.

Wherever a statute or the organic law creates a right, but is silent as to the remedy, the party entitled to the right “may resort to any common law action which will afford him adequate and appropriate means of redress.” Tapley v. Forbes, 2 Allen 24; Addison on Torts, 49 ; Knowlton v. Ackley, 8 Cush. 97; Stearns v. A. & St. L. Railroad Company, 46 Me. 114. The clause of the section relates to the ascertainment of the compensation and is a provision intended to afford corporations which require private property for public use, a mode of acquiring it which, substantially observed, will enable them to get the property and exempt them from ordinary actions-at law, but is no warrant for the position that if no such law be enacted they may with impunity take or damage the property of a citizen. Counsel seem to suppose that *496legislation is necessary in order to determine what injuries to property are embraced by the general term “damaged,” employed in that section. A legislative interpretation of the constitution is not binding on the judiciary. If the general assembly should, by enactment, declare what injuries are to be considered damages under that section, it would not be obligatory upon the courts to follow such legislative construction. The making of a constitution is but legislation; legislation, however, of the most solemn character, and if the general assembly can place a construction upon it, binding upon the courts, then it can make and unmake constitutions at its pleasure. The courts of Illinois and West Virginia in the cases above cited, and the Supreme Court of Georgia in the case of Moore v. Atlanta, 70 Ga. 611, seem to have had no difficulty or hesitancy in passing upon that question without legislative aid, nor do we think it presents the insuperable difficulty suggested by counsel. The judgment is affirmed.

All concur.