257 Mo. 40 | Mo. | 1914
This proceeding is based upon a writ of certiorari issued out of this court to the circuit' court of Jackson county.
On October 2, 1912, one of the respondents, as plaintiff in the original action, to-wit, Kansas City, through its counsel, filed in said circuit court a petition praying for the appointment of commissioners to assess whatever damages might be sustained by owners of certain lands abutting on Independence avenue in said city by reason of the grading of said avenue, and to fix the compensation to which said owners .were entitled on account of said grading. This petition was filed under the authority of section' 18, article 7, Charter of Kansas City of 1909, which is as follows: “In addition to the method hereinbefore provided in this article for ascertaining the damages, if any, arising from proposed grading, or regrading of any street, avenue, alley or public highway, or part thereof, whenever the city shall deem it necessary, and by ordinance so determine, it may adopt the same procedure for ascertaining the damages caused by such grading or regrading as is prescribed in the general laws of the State for the appropriation and valuation of lands, taken for telegraph, telephone, gravel and plank or railroad purposes, being article 7 of chapter 12 of the Revised Statutes of Missouri of 1899. Upon paying to the clerk of the 'circuit court the amount of damages awarded, the city shall have the right to proceed with such grading or regrading, notwithstanding the filing of exceptions to such award, and any sub
On the day the petition was filed, a summons was issued for the defendants, who were the abutting property owners, returnable October 16, 1912.-
On the return day the defendants appeared and through counsel made return by a motion to dismiss and quash the proceedings, which motion was by the court on October 17, 1912, overruled. On October 18, defendants filed separate answers to the petition, and on October 19, 1912, commissioners were appointed by the court to assess the damages and fix the compensation to which the abutting owners were entitled by reason of the grading of said avenue.
The commissioners were appointed and sworn, whereupon defendants, who are the relators here, applied for and were granted a writ of certiorari to bring the record before this court for review.
The petition filed herein to determine the damages for the grading of said Independence Avenue is substantially as follows:
It states the incorporation of plaintiff and certain of the defendants, and alleges the authority of Kansas City, under its charter, to open and establish public streets, provide for the grading or regrading of same, and for the payment of damages caused thereby to abutting property owners, and avers its authority to institute, in the circuit court, proceedings to determine any damages which may result to private property, if any, by the grading or regrading of any avenue, alley, etc. It further alleges that by an ordinance, therein designated by number, entitled, “ An ordinance providing for and authorizing the work of grading Independence Avenue from a point,” etc. — here follows a particular description of the part of said avenue to be graded — according to the grade established and the width provided in the ordinance referred to; that
I. Certiorari. Under our procedure the office of the writ of certiorari is the same as at common law,
A comparison of the petition with the requirements of section 18, article 7, of the Charter of Kansas City, and of article 2, chapter 22, Revised Statutes 1909, to which said section, supra, refers for its procedure, shows that the petition is drawn in substantial compliance with the requirements of said section of the municipal law and the State statute and contains all the necessary averments to give the circuit court jurisdiction. [K. C. Int. Ry. Co. v. Nelson, 193 Mo. 297.]
The subsequent procedure up to and including the appointment of the commissioners- is likewise in conformity with the requirements of the statute (Secs. 2360-2362, R. S. 1909) and no well-defined objections can be made thereto. There appears, therefore, to have been no such abuse of jurisdiction as to authorize our interference; but it remains to be determined, if
II. Filing of Ordinance. Relators contend that the trial court was without jurisdiction, because, as they allege, the ordinance authorizing the proceeding was not filed with the circuit clerk, and that this was a condition precedent to the institution of the suit.
The petition pleads the ordinance by number, title and date of approval, and relators demonstrate their familiarity with same by setting it up in their answers. The plea of its non-production, therefore, is purely technical, and we will presume that the trial court, having conformed in other respects with the requirements ■of the statute, proceeded regularly in this regard. [Kansas City v. Block, 175 Mo. 433; St. Louis v. Lanigan, 97 Mo. l. c. 179.] The record proper to which •our consideration is. limited in cases of this character, shows clearly that the trial court had jurisdiction •of the persons and subject-matter, and the ordinance referred to being no part of the record proper will not, therefore, be considered.' There may be a question, which we do not decide, as to whether in a case pre
III. Manner of Procedure. The purpose of this proceeding would have been as well if not better served had the same been prosecuted under an ordinance of the city found in the same article of the charter as section 18, supra, embodying all the necessary provisions as to procedure, without reference to a state statute, many of the provisions of which are not in harmony with the purposes of said section 18. The incongruities are not sufficient, however, to render the ordinance invalid, and we are, therefore, authorized in referring to the State statute for the procedure necessary to the enforcemnt of the ordinance so far as the statute is applicable thereto. The rule being well established in other jurisdictions that where one statute adopts the procedure outlined in another, such parts of the procedure as are applicable- may be adopted. [Phillips v. Co. Commissioners, 122 Mass. 258; McSweeney v. Commonwealth, 185 Mass. 371; Water Dist. v. Waterville, 96 Me. 234; 1 Lewis’s Em. Dom. (3 Ed.), sec. 404.]
Being satisfied from the record as to the trial court’s jurisdiction and that same has not been abused, and that relators have an ample right to redress in an appeal or writ of error after a final judgment rendered herein, we are of the opinion that our writ should be quashed, and it is so ordered.