193 Mo. 656 | Mo. | 1906
Lead Opinion
— This is an appeal in a proceeding by a railroad company, under the provisions of article 7, chapter 12, Revised Statutes 1899, to condemn a strip of land for its use through a number of tracts or parcels of land in Ripley county; one of which belonged to C. E. McKinney, the respondent herein, who, upon the coming in of the report of the commissioners assessing his damages at one hundred dollars, after notice, in due time, .filed his written exceptions thereto, in which he asked that the report of the commissioners be set aside, and that his damages be assessed by a jury. Thereupon, in due course, a jury, was impaneled, before whom, the issues were tried and a verdict in his favor rendered, assessing his damages at seven hundred and fifty dollars, from which judgment, in due course, this appeal was taken.
On the record no formal order appears setting aside the report of the commissioners, and this is assigned as error. There is nothing in this assignment. On filing his exceptions the respondent had the constitutional right to have his damages assessed by a jury, and the court had no discretion in the matter. The calling a jury to assess his damages was such order “as right and justice required.” [Art. 12 sec. 4, Const. 1875; Railroad v. McGrew, 113 Mo. 390; Railroad v. Story, 96 Mo. 611.]
2. It is next contended that the court erred in permitting witnesses for respondent to give their opinion as to the amount of the damages to respondent’s land in answer to the following questions:
“Q. I will ask you, taking into consideration the quantity of land taken for the right of way, which is agreed to he six and one-half acres, the size, shape and disfigurement, if any, of the tracts into which the farm is divided, as its market value may he affected by that division into those sizes, shapes and disfigurements, and the cuts and fills on that tract, if any, and the difficulties, if any, of getting from one side to another by going to a railroad crossing to get over from one side to another, and excluding all elements of damage, if any, that may arise from or he due to smoke or noise from trains passing over the road, or the ringing of hells or sounding of whistles, and scaring, frightening or killing of animals while on the right of way, or danger to the person of the owner, agent, servant, by the crossing of said road; what, in your judgment, would he the depre*662 ciation in the market value of the farm on account of six and one-half acres being taken for the right of way, and other inconveniences, taking into consideration all that I have mentioned and excluding all that I have mentioned ?”
It is settled law in this State that persons shown to be acquainted with the value or damages to property may, in connection with the facts, state their opinion as to such value or damages. [Railroad v. Calkins, 90 Mo. 538-543; Railroad v. De Lissa, 103 Mo. 125-130; Railroad v. St. L. Union Stock Yards, 120 Mo. 541-550; Railroad v. Donovan, 149 Mo. 93-102; Railroad v. Shoemaker, 160 Mo. 425.]
The question in this case is but a paraphrase adapted to the facts thereof, of the question in the case last cited, in which it was held that the question correctly stated the basis for an opinion of the witness as to the amount of the damages. There, is nothing in this assignment.
3. The third and last contention of appellant is, that the instructions given for respondent are erroneous in that they assume that his property had been damaged. This is a hypercriticism of the instruction and seems to be based upon the fact that the words, “if any, ’ ’ used in the first instruction, were not thereafter continuously repeated in subsequent instructions. The instructions followed approved precedents— no specific error in them has been pointed out, and there is nothing in this contention.
Finding no error, the judgment of the circuit court will be affirmed.
Dissenting Opinion
DISSENTING OPINION.
— I feel constrained to dissent from the first paragraph of the opinion of the majority
In my judgment section 4 of article 12 of the Constitution should be construed in connection with section 21 of article 2 of the Constitution, and reading the whole of section 4 of article 12 together, the correct interpretation thereof is, that where the proceeding by eminent domain contemplates condemning the property and franchises of an incorporated company a right of
Section 4 of article 12 of the Constitution is as follows: “The exercise of the power and right of eminent domain shall never be so construed or abridged as to prevent the taking, by the General Assembly, of the property and franchises of incorporated companies already organized, or that may be hereafter organized, and subjecting them to the public use, the same as that of individuals. The right of trial by jury shall be held inviolate in all trials of claims for compensation, when in the exercise of said right of eminent domain, any incorporated company shall be interested either for or against the exercise of said right. ’ ’
Section 21 of article 2 of the Constitution is as follows: “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 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. The fee of land taken for railroad tracks without consent of the owner thereof shall remain in such owner, subject to the use for which it is taken.”
Prior to the adoption of the Constitution of 1875 the only provision of the Constitution in reference to this subject was contained in section 16 of article 1 of the Constitution of 1865, and is as follows: “That no
In Railroad v. Miller, 106 Mo. l. c. 460-61, Black, J., in considering those two sections of the Constitution and in reaching the conclusion that under section 21 of article 2 the property of a citizen might be taken and that compensation could he ascertained hy a jury or a board of freeholders, hut that the value of the property of any incorporated company must, under section 4 of' article 12, he ascertained hy a jury, said: 1 ‘ The first of these sections, found in the Bill of Rights, does not guarantee to the property-owner a common law jury trial in the assessment of damages. It simply requires the damages to be assessed either hy a jury or hy a board of not less than three freeholders. But that section is general in its terms and must he taken in connection with section 4 of article 12, which is specific and must control as to all eases coming within its terms. The last-named section, it has been insisted on some occasions, guarantees a jury trial in those cases only where it is sought to condemn the property or franchises of an incorporated company; hut the language quoted does not admit of so narrow and limited construction. A jury is guaranteed in all claims for compensation for property taken in the exercise of the right of eminent domain when any incorporated company shall he interested, either for or against the exercise of such right. It, therefore, matters not whether the incorporated company is interested either for or against the exercise of this right; for in either case either party to the suit is entitled to a jury trial at some stage of the proceedings. This is the plain language of the section, and it is useless to speculate upon the reasons for its insertion in our present Constitution. In those cases where
Thus, it will be observed that, without undertaking to ascertain any reason for discriminating in favor of corporations and against individuals, and by changing the conjunctive conjunction “and” in section 4 of article 12 to the disjunctive conjunction “or,” the conclusion was reached which created a special privilege in favor of corporations that is not enjoyed by individuals in condemnation cases. This is the only extended discussion of this question in any of the adjudicated cases — all the other cases simply announce. the conclusion that section 4 of article 12 guarantees to a corporation the right of trial by a jury in condemnation cases without discussing or attempting to discuss the question at all.
The underlying error in Railroad v. Miller, supra, is in changing the conjunctive conjunction “and” to the disjunctive conjunction “or,” and thereby destroying the true meaning of section 4 of article 12. The conclusion reached in that case could only have been reached by this process. When section 4 of article 12 is read in its entirety, its meaning, to my mind, is perfectly plain. It provides: ‘‘ The exercise of the power and right of eminent domain shall never be so construed or abridged as to prevent the taking, by the General Assembly, of the property and franchises of incorporated companies already organized, or that may be hereafter organized, and subjecting them to the public use, the same as that of individuals,” etc. Thus it will
I have taken the pains to examine the constitutions of our sister states upon these questions, and I find that provisions similar to section 4 of article 12 down to that part of that section which speaks of the right of trial by jury, in other words, provisions reserving the right to take the property and franchises of incorporated companies the same as that of individuals, are contained in the constitutions of Alabama (art. 1, sec. 24), Idaho (art. 11, sec 8), Kentucky (sec. 195), Nebraska (art. 11, sec. 6), Mississippi (sec. 190), North Dakota (art. 7, sec. 134), Pennsylvania (art. 16, sec. 3), West Virginia (art. 11, sec. 12), and Wyoming (art. 10, sec. 9). In all of those states the right of trial by jury in all condemnation cases, whether the property taken is that of an incorporated company or that of an individual, is guaranteed by other provisions of the constitution, similar to our section 21 of article 2, except so far as that section of our Constitution allows the compensation to be ascertained by a board of freeholders. And this latter provision of our Constitution I have been unable to find in the constitution of any other State in the Union. Thus in all of these states no such discrimination or creation of special privileges in favor of an incorporated company and against a private individual exists. Such a condition exists only in the State of Missouri, and exists only by reason of what I believe to be the erroneous construction that this court has heretofore placed upon section 4 of article 12, in the doing of which it was said: ‘‘ It is useless to speculate upon the reasons for its insertion in our present Constitution.” A little research and a little more careful reflection would have shown that the reasons for the insertion of that provision in our Constitution forbade the construction which this court placed upon that section, and that the creation of the special privileges by such a construction was directly contrary
Section 4 of article 12 of our Constitution was borrowed almost literally from section 14 of article 11 of the Constitution of Illinois of 1870. The Illinois Constitution on this subject reads as follows: “The exercise of the power, and the right of eminent domain, shall never be so construed or abridged as to prevent the taking, by the General Assembly, of the property and franchises of incorporated companies already organized, and subjecting them to the public necessity the same as of individuals. The right of trial by jury shall be held inviolate in all trials of claims for compensation, when, in the exercise of the said right of eminent domain, any incorporated company shall be interested either for or against the exercise of said right.” Thus, it will be observed that section 14 of article 11 of the Constitution of Illinois is almost identical with section 4 of article 12 of our Constitution, the principal difference being that in our Constitution the right of eminent domain is reserved as to corporations that may be hereafter organized, whereas under the Illinois Constitution the literal reading of section 14 seems to confine that right to incorporated companies already organized.
The Constitution of Illinois, section 13 of article 2, is as follows: “Private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law. The fee of land taken for railroad tracks without consent of the owners thereof shall remain in such owners, subject to the use for which it was taken.”
Thus it is apparent that our section 21 of article 2 was also taken from section 13 of article 2 of the Illinois Constitution, the only change being that under our Constitution the compensation was authorized to be ascer
In other words, under the Illinois Constitution which does not provide, for the ascertainment of the compensation by a board of freeholders in any case but requires the trial by jury in every casé, there was no such privilege created by- section 14 of article 11 of their Constitution as results from the construction this court- has placed upon section 4 of article 12 and section 21 of article 2 of our Constitution.
In my judgment to say that the framers of our Constitution ever intended to create such a special privilege in favor of incorporated companies is an unjust reflection upon the intelligence of that learned body, composed, as it was, of some of the ablest lawyers in this State, and is in absolute conflict with every other provision of the Constitution, and with the whole spirit, genius and policy of that document. The idea conveyed in the first sentence of section 4 of article 12 is that neither the property nor the franchise of an incorporated company should be beyond the reach of the power of the State by eminent domain, but that all the property and franchises of an incorporated company should be subject to condemnation, “the same as that of individuals.” No intimation is contained therein of any intention to create a special privilege in favor of corporations, but on the contrary the plain purpose of the lawmakers was to place the property and franchises of an incorporated company upon the same level and plane as that of an individual. This was the dominant idea in the minds of the lawmakers, and to say that after having expressed the dominant idea they were so awkward in the use of language and so bungling in the expression of intention as in the next breath to create- a special privilege in favor of incorporated companies that was not enjoyed by or guaranteed to the individual would be to do grievous wrong to the intelligence and honesty of purpose of the framers of our Constitution.
One of two things is absolutely true — either the framiers of the Constitution of this State knowingly and purposely created that special privilege in favor of corporations, or else the construction heretofore placed by this court on section 4 of article 12 is not the correct construction nor the meaning of that section that the framers of the Constitution intended to impart. I have no difficulty in reaching the conclusion that the latter is true, for I am unwilling to believe that the former could by any possibility of means be true.
By construing section 4 of article 12 to apply only in cases where the object of the proceeding was to take away all property and franchises of the incorporated company, in which case a trial by jury is guaranteed, and that in all other cases where simply some piece of property belonging to an incorporated company is to be condemned the compensation may be ascertained by either a jury or a board of freeholders as the law directs, pursuant to section 21 of article 2, no such incongruity as that herein pointed out will exist and no such special privilege will be conferred. That this construction is possible is beyond debate or cavil, and that a construction which does not produce such a result is
Under the construction heretofore placed by this court on section 4 of article 12, if two tracts of land adjoining each other are to be taken for a public purpose, and one of those tracts is owned by an incorporated company, and the other is owned by a private citizen, and both are used for identically the same purposes, for instance, both are used for ordinary business purposes, the unjust spectacle is presented by the laws of this State, as heretofore interpreted, of guaranteeing to the mere business corporation a trial by jury when its property is to be taken and of denying the right of trial by jury to the individual, and permitting the property of the individual to be taken and the compensation to be assessed by a board of freeholders. The human mind is incapable of conjecturing any reason that could have actuated the framers of the Constitution in providing for such inequality before the law. In my judgment they did not do so and never intended to be so understood.
I fully understand and appreciate the importance of the principle underlying the doctrine of stare decisis, but there is another principle of law which is of infinitely more importance than the doctrine of stare decisis, which is the doctrine that all men are equal before the law, and that it is contrary to the spirit and genius of our institutions that special privileges shall be conferred upon any class of the community. In the eye of the law an incorporated company stands upon no better footing than an American citizen. To create a special privilege in its favor is, in my judgment, as violative of our principles and theory of government, as to say that all men with certain colored hair or certain colored eyes or of certain stature should be entitled, when their property shall be taken, to the benefit of trial by jury, but that all other persons in the community who do not
For the foregoing reasons I am compelled to dissent from the conclusions announced in the first paragraph of the majority opinion in this case.