15 Mo. App. 152 | Mo. Ct. App. | 1884
delivered the opinion of the court.
This is an original application for a mandamus against one of the judges of the circuit court and the clerk thereof to compel the judge to order, and the clerk to make, payment to the relator of the sum of $50,000, which was deposited with the clerk by the St. Louis and San Francisco Railway Company in a proceeding by such company to condemn certain land of the relator for a right of way of such company, as hereafter stated. The questions which we have to consider arise on a demurrer to the return, and a motion for judgment on the return, made by the relator. The respondents, the judge and clerk of the circuit court, in their return exhibit to the court a transcript of the entire proceedings in the condemnation case ; and, by a stip
The facts thus disclosed are as follows: On the 8th of June, 1883, the St. Louis and San Francisco Railway Company, having, under various franchises of which it had become the proprietor, the right to build a railway between the Mississippi River in St. Louis and the town of Pacific, in Franklin County, filed its petition in the circuit court, setting forth that it was necessary, in constructing such road, to appropriate a certain parcel of land, the property of this relator, which is a manufacturing corporation, one hundred feet in width, and containing two and thirty-three one-hundreth acres, within the city of St. Louis, and praying for the appointment of commissioners. Summons having been served upon this relator, and upon Austin R. Moore, trustee, the court on July 6, 1883, appointed Howard A. Blossom, Thos. W. McManus, and Richard D. Lancaster, as such commissioners. These commissioners, having taken the oath prescribed by law, thereafter, on the 22d day of August, 1883, filed two reports, a majority report and a minority report. A majority of the commissioners, Mr. Blossom and Mr. McManus, assessed the value of the land of this relator, which the railway company sought to appropriate, at the sum of $50,000. The other commissioner, Mr. Lancaster, assessed the same at the sum of $4,000. Thereafter, on the 23d day of August, 1883, the clerk issued a written notice to this relator, and also to Austin R. Moore, trustee, of the filing of this report. This notice was, on the 27th day of August, 1883, served by the sheriff upon this relator, and also upon Austin R. Moore,, trustee, and return thereof was, on the 4th day of September, 1883, made to the court. Thereafter, on the 30th day of August, 1883 the railway company, according to the recitals in the bill, of exceptions, “ paid to Charles F. Yogel, clerk of the
In connection with this motion, the bill of exceptions in the record in the condemnation proceedings contains the following recitals : “And on the same day said motion came on to be heard, and the plaintiff, in open court, admitted that since the making by it to the clerk of this court of the payment aforesaid, and in virtue of the payment for the defendant, the Evens & Howard Fire Brick Company, and the proceedings in this cause, it had taken possession of the property of the Evens & Howard Fire Brick Company decribed in jfiaintiff ’s petition, and in said report of commissioners, and that it was now in actual possession thereof. Whereupon the court then and there overruled said motion; to which ruling of the court the said plaintiff then and there excepted at the time. And thereupon the court, of its own motion, upon the admission of plaintiff aforesaid, struck out said exceptions of plaintiff, to which ruling of the court in striking out said exceptions, the plaintiff then and there excepted at the time.”
On the same day, the railway company filed a motion to set aside the order on the clerk to pay over to this relator, the Evens & Howard Fire Brick Company, this award of $50,000, and for a rehearing of said motion, for various reasons assigned, which need not be here set out. This motion came on to be heard on the same day, and was by the court overruled ; to which ruling of the court the railway company then and there excepted. On the following day, September 18, 1883, the railway company filed a motion asking the court “ to set aside this order herein on Charles F. Vogel, clerk-of this court, to pay over to said Evens & Howard Fire Brick Company the sum of
Thereafter, the railway company prayed for an appeal “from the judgment and decision” in said cause, filing the statutory affidavit therefor, and the court granted the same. The railway company executed an appeal bond in the penal sum of $110,000.
We have been thus particular in setting out the facts and dates in the condemnation proceeding, using in several particulars the exact language of the record of that proceeding, in order that there 'may be no mistake or doubt as to the facts upon which our judgment in this mandamus proceeding is invoked.
It is important, next, to consider the state of the written law applicable to the condemnation of land by railroad companies. By sections 764'and 766 of the Revised Statutes, any number of persons, not less than five, may organize themselves into a railroad corporation, by complying with certain formalities and paying a certain license tax, without asking or obtaining the consent of the legislature or of any other public authority of the state. By the
By section 21 of article TI. (bill of rights) of the constitution of Missouri, “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
In our constitution of 1865 the provision upon this subject stood simply thus : “ No private property ought to be taken or applied to public use, without just compensation.” Const. 1865, Art. I., sect. 16. The provision on this subject in our constitution of 1820 was couched in the same language. Const. 1820, Art. XIII., sect: 7.
With the provision of our present bill of rights, as above quoted, in force, the legislature which framed our present Revised Statutes, in the article of the chapter on corporations which relates to the “ appropriation and valuation of lands taken for the telegraph, telephone, gravel and plank, or railroad purposes,” inserted the following two sections, the former being an amendment of a section of the general statutes, and the latter an amendment of a statute passed in 1878: “The court, or judge thereof in vacation, on being satisfied that due notice of the pendency of the petition has been given, shall appoint three disinterested commissioners, who shall be freeholders, resident of the county in which the real estate or a part thereof is situated, to assess the damages which the owners may severally sustain by reason of such appropriation; who, after having viewed the property, shall forthwith return, under oath, such assessment of damages to the clerk of such coux’t, setting forth the amount of damages, and shoxxld more than oxxe owner be included ixx the petition, then the damages allowed each shall be stated separately, together with a specific description of the propex’ty for which such damages are assessed, axxd the clerk shall file said report axid record the same in the order book of the coxxrt; and thereupon such company shall pay to the said clerk the amount thus assessed, for the party in whose favor such damages have been assessed; axxd, on making such payment, it shall be lawful for such company to hold the inter
“ Upon the filing of such report of said commissioners, the clerk of the court wherein the same is filed, shall duly notify the party whose property is affected, of the filing thereof; and the report of said commissioners may be reviewed by the court in which the proceedings are had, on written exceptions, filed by either party in the clerk’s office, within ten days after the service of the notice aforesaid; and the court shall make such order therein as right and justice may require, and may order a new appraisement upon good cause shown. Such new appraisement shall, at the request of either party, be made by a jury, under the supervision of the court, as in ordinary cases of inquiry of damages ; but, notwithstanding such exceptions, such company may proceed to erect said telephone or telegraph line, or construct said road or railroad, and any subsequent proceedings shall only affect the amount of compensation to be allowed. In all' cases arising under the provisions of this article, the report of commissioners, when signed by a majority of them, shall be taken and considered as the report of all.” Rev. Stats., sect. 896.
The meaning of these two sections, when read together, is not very plain. The former conforms entirely with the constitutional provision, by providing for payment of the damages awarded to the clerk of the court, “ for the party in whose favor such damages have been assessed,” and by
Then, as to the meaning of section 896 ;' if this section means that, after having acquired the right to enter upon the land by paying into the hands of the clerk the damages awarded “ for the party in whose favor such damages have been assessed,” the company may, by filing exceptions to the award, arrest the payment of such damages by the clerk to the land-owner, tie the money up as a fund in court, and, at the same time take the land, we have no hesitation in saying that it is unconstitutional. This is clearly so, unless some meaning can be discovered for the terms of the constitution, which is contrary to what the words imply. No such meaning can be discovered. The language is so plain that there is no room for interpretation. The meaning is that the corporation shall not disturb the property or divest the proprietary rights of the owner, until the compensation, ascertained by a jury, or by a board of commissioners, shall either be paid to the owner, or be paid into court for the owner. The clause permitting payment into court for the owner was evidently intended as a provision for cases where the owner might refuse payment when tendered, or might be unknown, or not sui juris. Its meaning can not, by any sophistry, be frittered away so
Nor are we to consider any supposed public inconvenience
Nor can the' usages of railroad-building be for a moment considered as altering the law; though there was a time in the era of railroad-building when such enterprises were so much favored by the courts that their promoters and managers seemed to think that the contrary was true. In a case decided in England during that period, Lord Langdale, M. B., felt called upon to make the following observations: “ I am surprised at the defendants by their affidavits telling the court that the course they have adopted is in accordance- with the usages of railway companies, and that the like has been done by such companies on other occasions. To introduce such statements into an affidavit for the purpose of influencing the judgment of the court in a matter of this kind is a gratuitous absurdity ; for an injustice is not to be tolerated in any case merely because such things have been done by other persons on former occasions.” Rankin v. East and West India Dock R. Co., 12 Beav. 298, 306.
We shall not consider a large number of decisions which have been cited, nominally on the part of these respondents, but really on behalf of the railway company, to show that the land may be taken before payment is actually made.
Such being the right secured to the land-owner by the paramount law of the state, it remains to consider what are the rights of this relator in respect of the award of $50,000, which the St. Louis and San Francisco Railway Company paid into court, as already stated. We may notice here that the point is made, nominally on behalf of the respondents, but really on behalf of the railway company, that the return does not show that the railway company has taken full possession of the land. This is a mistake. The return does show this fact. The record of the condemnation proceeding is exhibited by the respondents as a part of their return, and is to be considered as such by this court, by a stipulation of the parties. This return recites that “ the plaintiff [meaning the St. Louis and San Francisco Railway Company] in open court admitted, that since tha making by it to the clerk of this court of the payments aforesaid, and in virtue of the payment for defendant, the Evens & Howard Fire Brick Company, and the proceedings in this cause, it had taken possession of the property of the Evens & Howard Fire Brick Company, described in the plaintiff’s petition and in said report of the commissioners, and that it was now in actual possession thereof.” Here was a solemn admission of record that the railway company had taken possession of the property which it sought to condemn ; that it had taken possession of it since the payment of the award of the commissioners by it into the hands of the clerk; and further, that it had taken possession of it in virtue of such payment and of the condemnation proceedings. After making this admission, I am unable to understand any principle upon which the railway company had a standing in court to object to the money being paid by the clerk to the owners of the land. Their admission is that the money was placed in the hands of the clerk, not as a mere deposit or security, but
I, therefore, entertain no doubt, that when the railway company came into court and admitted that they had taken the land described in the petition and in the report of the commissioners in virtue of the payment which they had made to the clerk of the sum of $50,000 awarded by the commissioners, they made an admission which operated as a release of any errors which may have been committed by the commissioners in making their award, as an adoption of the report of such commissioners, and as a complete estoppel against them from thereafter making any objections to such report. When they paid the money and took the land, they accepted and received, to the fullest extent, the fruits of the award, and thereafter they could not complain that it was excessive. They could not accept the full benefit of it so far as it worked in their favor, and except to it so far as it worked against them. It was in the nature of a judgment in so far that it was not divisible. Moreover, since, by the terms of section 21 of the bill of rights, the right to take the land depended wholly upon the precedent fact of payment, they could not, after having taken the land, be heard to say, and they can not now be heard to say, •that the money was not placed in the hands of the
I do not see how these propositions could be made plainer by illustration or by authority. It may be well, however, to notice a decision of the supreme court of Ohio, to which we have been cited, which involves the construction of a statute tery similar in its terms to section 21 of our bill of rights. This statute, under which proceedings to condemn
In a very late case the supreme court of Ohio re-affirmed the principle which underlies this decision, in the following language: “ The rights of the parties are mutual. Whenever the corporation is entitled to take the land, its former owner is equally entitled to the money. The right to the money accrues eo instanti with the right to take the land; otherwise compensation would not be first made. The deposit in court is, in legal effect, for the land-owner’s use, and belongs to him as soon as the land becomes the property of the corporation.” Wagner v. New York, etc., R. Co., 10 Am. & Eng. Ry. Cas. 380, 384.
I can conceive no possible view upon which the payment
Unless we, then, are entirely astray in these views, the proceeding was substantially ended when the railway company paid the award to the clerk of the court, and entered into possession of the land in virtue of such payment. The land-owner did not except to the award; the railway company, by its act, adopted it, and took to itself the fruits of it. It stood, therefore, adopted by both parties, and satisfied by the railway company. The money remained in the hands of the clerk as a mere statutory trustee for the landowner, this relator, and nothing remained for the court to do touching its disposition, except to order it to be paid to the land-owner, which the court rightfully did. This order was in no sense a judicial act. It was, nevertheless, an act making a final disposition of the rights of the railway com
Aside from this consideration, an insuperable difficulty presents itself. The circuit court has jurisdiction to grant appeals to this court from its final judgments and orders. If it grant an appeal erroneously, its action is nothing more than an erroneous exercise of jurisdiction. It is not void in the sense that it can be disregarded in a collateral proceeding, but it is valid until it is vacated by the dismissal of the appeal. As soon as the appeal was granted, the jurisdiction of the circuit court was at an end, for every purpose except the amendment of its record. Whether the jurisdiction of this court attached before the return day of the appeal is a question about which the members of the court are not agreed. A majority of the court are of opinion that the jurisdiction of this court, in ease of an appeal, does not attach, for the purpose of dismissing the appeal
The court is, therefore, of opinion that the demurrer to the return must be overruled and the petition dismissed. It is so ordered.