140 Mo. 458 | Mo. | 1897
This is an appeal from the judgment of the circuit court of Jackson county in a proceeding instituted and prosecuted to condemn real estate to widen a street, .under and by authority of article 10 of the charter of Kansas City, as amended June 6, 1895, in the manner provided by section 16, of article 9, of the Constitution of Missouri, authorizing any city having a population of more than one hundred thousand inhabitants to frame a charter for its own government, and thereafter amend the same by a proposal therefor made by the law making authority of such city, and duly published and accepted by a three fifths vote of the qualified voters voting at a general or special election “and not Ótherwise.”
It was begun in the circuit court of Jackson county as provided by said charter amendment, by the filing of a certified copy of an ordinance of Kansas City, duly and legally passed, upon the recommendation of its board of park commissioners, selecting and designating certain lands for a boulevard as shown by a map filed by the city engineer with said park commissioners.
Article 10 of the charter of Kansas City, as amended, provides that if any incorporated company shall be entitled to a trial of its claim for land condemned or.damaged by a common law jury of twelve men, it shall have the same by filing a petition therefor prior to the day set for the hearing and impaneling of a jury of freeholders. Appellant being a corporation demanded a jury of twelve which the court accorded to it. The jury estimated its damage at $11,000. In due time it filed a motion for new trial
I. It is asserted, with much confidence, seemingly, by counsel for defendant, that the power of eminent domain as assumed and exercised by Kansas City in this and kindred cases is ultra vires, and therefore without the sanction of law. If defendant is right, his discovery is quite out of the ordinary, little less indeed than startling, in view of the great number of cases which have been considered by this court involving the exercise of eminent domain by the cities of St. Louis and Kansas City, because we think the two charters are strikingly alike in this feature of each.
Proceeding to an examination of this contention we find it asserted that “outside of this purported amendment (article 10) there is nothing in the charter itself warranting the exercise of the power of eminent domain by the common council,” and “said amendment is void because not “in harmony with and subject to the Constitution and laws of Missouri.”
The right of eminent domain is inherent in every government. In this State it is not conferred, but is limited by the Constitution. The necessity and expediency of exercising the right are political or legislative in character; its enforcement, judicial. It is not pretended that this power is inherent in a municipality created by the State. It must be conferred by the State. The city insists, however, that a municipal
Section 16 of article IX of the Constitution of Missouri, 1875, provides that /‘any city having a population of more than one hundred thousand inhabitants may frame a charter for its own government consistent with and subject to the Constitution and laws of this State,” and if such charter shall be adopted by four sevenths of the qualified voters of such city at a general or special election “it shall become the charter of such city and supersede any existing charter and amendments thereof.” By the same article of the organic law of the State provision is made for amending said charter by a proposal therefor made by the law making authorities of the city and notice thereof, and by acceptance of such proposed amendments by three fifths of the qualified voters of said city at a general or special election “and not otherwise.” No limitation is placed upon the character of the charter save and except that it shall always be in harmony with and subject to the Constitution and laws of the State.
Availing themselves of this constitutional offer, the citizens of Kansas City elected a board of thirteen freeholders which framed a charter for said city which was adopted April 8, 1889. Section 1 of article 1 of said charter empowers said Kansas City among other things, “to acquire and hold by gift, devise, purchase or by condemnation proceedings, lands and other property
The authorities cited by the learned counsel for defendant as to the necessity of a grant of power have no application to a city charter, which derives the power of condemnation of lands for public purposes- directly from the organic law of the State in such unequivocal terms. It is not a matter of inference, but a direct grant of the necessary power. But that there might not be the semblance of a doubt of the power of the city to exercise eminent .domain for such purposes the General Assembly of this State passed an enabling act which was approved March 10, 1887 (Laws of Mo. 1887, p. 42), by which cities of over one hundred thousand inhabitants were authorized to adopt charters, “for their own government,” “in harmony with and subject to the Constitution and laws of this State.” Section 52 of that act provides that it shall be lawful
Upon legal, principles it can not be seen what efficacy there was in this legislative act. The power with its limitations had been previously conferred by the people of the State and it was not within the power of the legislature to curtail it. That the people of Missouri in their sovereign capacity and by their organic law, could delegate to the people of a municipality this power to frame a charter for its own local government, as to matters falling properly within municipal regulation, we have no doubt whatever. Such a right is entirely in accord with the genius of our institutions, bringing the regulation and government of local affairs within the observation of those who are to be affected thereby, and at the same time preventing the officious and selfish intermeddling with the charters of our cities, without the knowledge of those whose rights are affected. This court, regarding the Constitution as supreme in-authority, maintained the validity of the special charter adopted by Kansas City on April 8, 1889, in State ex rel. Kansas City v. Field, Judge, 99 Mo. 352. In that case Kansas City filed in the circuit court of Jackson county á certified copy of an ordinance to grade’a designated street and- asked the judge thereof to appoint commissioners to assess damages and benefits under article 8 of its special charter, framed by freeholders and adopted by virtue of section 16, article IX of the Constitution of this State. The circuit court declined •to appoint said commissioners on the ground that said section 8 was in conflict with the laws of this State. Upon an application for mandamus this court held that the matter of assessing damages and regrading streets naturally fell within the domain of municipal government, and that the special charter must control in the
In The City of St. Louis v. Gleason, 15 Mo. App. 25, 93 Mo, 33, this question arose under the'charter of St. Louis which was framed and adopted under the provisions of section 20, article IX of the Constitution, which permitted the adoption of the charter “in harmony with and subject to the Constitution and laws of Missouri,” and when adopted should supersede the then charter of St. Louis and all amendments thereof, and it was held that the scheme and charter must be regarded in law as a grant from the State of equal dignity with a municipal charter conferred by an act of the legislature.
The learned counsel for defendant attempts to distinguish this case from State v. Field, supra. He says, “the question whether said article 8 contained a code of practice attempting to regulate judicial proceedings contrary to the laws governing State courts, was not mentioned.” Counsel surely had not read that case closely or he would have discovered that the sole contention was whether the proceeding for condemnation. should be regulated by article 8 of the charter, or by the general law governing the practice in such cases, and this court held the special charter must govern. So that we are-brought back to the same contention in this case that was raised in that, and the answer must be that notwithstanding the policy of the State is to provide for the organization and classification of cities and towns by general laws, the people have made an exception to this general policy by permitting cities of over one hundred thousand inhabitants to frame their own charters, provided always they shall be consistent with and subject to the Constitution and laws of this State. The inquiry then is, whenever a charter so framed comes under judicial review, is it in har
But it is also insisted that because the legislature had by a general law passed in 1885 and amended in 1887 (Acts 1885, p. 47; Acts 1887, p. 37; R. S. 1889, sec. 1815), provided a mode of procedure for condemnation of land for municipal purposes different from that adopted by the charter of 1889 and the amendment, article 10 of 1895, the latter must fall because they are unlike in some of their details. If this view can be maintained, it simply nullifies section 16 of article IN of the Constitution. But counsel by this contention begs the question. He ignores the foundation fact that the organic law conferred upon the municipality the power to adopt the special charter, and it was not restricted to the adoption of a method for condemning streets, alleys, parks, et cetera, already prescribed by the general statutes, but was unlimited save by the provision that it must be in harmony with the laws and Constitution of the State. Mere differences in detail do not show any want of harmony whatever. Every essential of the Constitution and every salutary principle of the statute is preserved. Thus the body of freeholders who estimate the damage, the saving of the right to a common law jury, the payment of the damages or compensation to the owner or into court for him before his proprietary rights are disturbed, are all preserved in the charter.
It was entirely competent for the city under this
A charter is the organic law of a city in this State whether it emanate from the General Assembly, or is framed and adopted by the people of the municipality by authority of the Constitution. Being a law for the government of the municipality, it is binding upon all courts, and it violates no principle of our government to say that the courts, when called upon, must enforce these municipal laws unless they conflict with the Constitution, and are not in harmony with the Constitution and laws, and, as already said, mere differences in details do not render such laws inharmonious. So long as Kansas City, under its special charter, does not
The charter provisions of St. Louis and Kansas. City as to condemnation proceedings have been so often before this court, and have never been held to be out of harmony with the Constitution and laws, that .a declaration at this late day that said cities were without such a power, and that these charter provisions, in this respect, were ultra vires, would invite a flood of litigation. Fortunately we see no reason for doubting the correctness of Stale ex rel. Kansas City v. Field, 99 Mo. 352. We think it was properly ruled that the special charter superseded the general statutes where the two conflicted as to a mere municipal regulation, and we hold that condemnation proceedings to acquire lands for streets, parks, waterworks, sewers and the like, clearly fall within municipal regulation. It follows that notwithstanding the charter did not follow the civil practice as prescribed in the code of practice, it was not for that reason out of harmony with the Constitution or laws, and the special provisions thereof must control, and defendant has no just ground of complaint on that ground.
The amendment to the charter known as article 10 was adopted in strict compliance with the exclusive method pointed out by the Constitution and thereby became of equal binding authority with other portions of the charter, and dealt with a subject also within the domain of municipal government. Kansas City v. Scarritt, 127 Mo. 642; Kansas City v. Ward, 134 Mo. 172.
Article 10 of the charter as amended is not void. It is in harmony with the Constitution and general statutes of the State in pari materia.
II. The claim that defendant was denied a separate trial because Mr. Haff, the special counsel for the park board, cross-examined witnesses, is wholly without merit. Mr. Haff was to all intents an attorney of
III. The objections to the ordinance number 6773 can not be sustained. The description of the'property is set out with great particularity by reference1 to streets, lots, blocks, and the map filed by the engineer. The park districts are .defined and their boundaries located by the charter amendment in question. This court will take ex officio notice thereof. Kansas v. Vineyard, 128 Mo. 75. The objection that the ordinance does not sufficiently prescribe the time and manner of assessments is best answered by the ordinance itself. Section 2 thereof provides that the special assessments shall be paid in one installment in time and manner as provided by section 21, article 10 of the amended charter of Kansas City for the payment of assessments made payable in one installment. Said section 21, article 10, ordains that assessments paid in one installment shall be paid without interest within sixty days after judgment of confirmation thereof and if not so paid shall bear interest at fifteen per cent per annum. The title is clearly expressed. It is “to establish a boulevard along parts of Independence avenue, Grove street and other streets in Kansas City, Missouri.”
IV. The counter abstract of respondent sets forth all the objections and exceptions saved to evidence. The questions thus saved relate to interrogatories propounded by counsel for the city to defendant’s experts. They fell clearly within the proper scope of legitimate cross-examination. Evidence is of little value which can not stand this test. The right to propound hypothetical questions to experts on cross-examination to test their knowledge can not be denied.
As to the newly discovered evidence upon which a new trial was sought, it was insufficient for the following reasons:- First, the new evidence was simply to contradict a witness; second, if admitted, there is nothing to indicate that it would change the result; third, no diligence was shown, nor reason why the absent witness was not brought into court by, appellant; fourth, there was no affidavit by anyone connected with or interested in appellant, simply the affidavit of the witness as to what he would swear to. State v. Luke, 104 Mo. 563; State v. Myers, 115 Mo. 394; State v. Sansome, 116 Mo. 1; Mayor, etc., v. Burns, 114 Mo. 426.
No substantial error having in our opinion been committed against the defendant, the judgment of the