246 Mo. 568 | Mo. | 1912
Relators filed their petition in this court praying the issuance of a writ of prohibition against the respondent as judge of Division No. 3 of the circuit court of Jackson county; The cause sought to be prohibited is a condemnation proceeding now pending in said Division No. 3, in which the property of relators is proposed to be taken for public use in widening Sixth street, between Broadway and Bluff streets, in Kansas City. A preliminary writ was issued upon the filing of the petition, and in due time respondent filed his return. Relators filed a demurrer to the return, and upon the issues of law thus raised the case was argued and submitted for decision.
The case of State ex rel. Graham et al. v. Seehorn, respondent, decided at the present term of this court and reported at page 541 of this report, is a companion case and almost identical in its facts with the facts pleaded and admitted in this case. A full statement of the facts will be found in the Graham case, and it is not deemed necessary to repeat them at length herein.
Briefly, the important facts necessary to an understanding of this case are the following:
In compliance with the order and the provisions of the charter, the jury returned their verdict, in which compensation for the property condemned was awarded in the. total sum of over $168,000. The city was assessed with its proportional part of the benefits received, and each tract of property in the benefit district was also assessed its proportional part, according to the benefits received. The verdict was confirmed by the council and judgment thereon rendered by the municipal court. No appeal having been taken within the time allowed, a copy of the verdict was delivered to the city treasurer, and more than half of the benefits assessed were paid before any question was raised as to the Validity of the proceedings. It wa.s then discovered that the order of the municipal court for the impaneling of the jury was not published
Sec. 23 of Art. 6 of the charter of said city provides that the city may carry on and maintain supplemental proceedings to properly assess any property in the benefit district “against which an assessment was in the first proceeding erroneously made or omitted to be made,” and that, “such supplemental proceedings shall be instituted and conducted as to the particular piece or pieces of private property sought to be included or assessed, in like manner and with like effect ás in the original proceedings, and shall be known and described as supplemental proceedings for the purposes specified in the original ordinance.” Pursuant to the provisions of said section 23, ordinance 7539 was introduced in the common council for the purpose of levying assessments of benefits against property within the benefit district, as fixed by the original ordinance, and “against which an assessment was in the first proceeding erroneously made or which was omitted to be made.” Due notice was given, a jury
Relators base their right to a writ of prohibition against respondent upon the three grounds following:
“(1) The charter of Kansas City does not provide for an appeal in a supplemental proceeding begun in the municipal court of Kansas City from that court to the circuit court and the respondent has no jurisdiction over the supplemental proceéding over which-he has assumed jurisdiction.
*576 “ (2) The respondent lias no jurisdiction to award damages for land taken for a street, because the ordinance under which, he is assuming to act does not ask to have such damages awarded.
‘ ‘ (3) Prohibition will lie if the supplemental proceeding cannot be taken to the circuit court by appeal, and will also lie, if there is a .right of appeal, to prevent the respondent from exercising any jurisdiction over matters not brought before the court by supplemental ordinance.”
I. The first proposition urged by relators is that no appeal is allowed by the charter from the verdict and judgment in a'supplemental proceeding in the municipal court to the circuit court, and that as the case against which prohibition is asked is such an alleged appeal, respondent is without jurisdiction to proceed therein.
The general provision of the charter, section 6 of article 6, as to the right to an appeal, is: “In case the city, or any person affected by the proceedings, either as the owner thereof or interested in any of the property taken or damaged, or as the owner of, or interested in any of the property assessed, shall feel aggrieved by the verdict of the jury, such party so ag": grieved may, within twenty days from the time the verdict of the jury is confirmed, appeal to the circuit court of Jackson county, Missouri, at Kansas City.” Section 23 of article 6, authorizing supplemental pro: eeedings, provides that: “Such supplemental proceedings shall be instituted and conducted as to the particular piece o.r pieces of private property sought to be acquired or assessed, in like manner and with like effect as in the original proceedings, and shall be known and described as supplemental proceedings for the purposes specified in the original ordinance.” The language thus used as to the procedure in supplemental proceedings, when considered in the light of the
II. Eelators ’ second contention is as follows: ‘£ The respondent has no jurisdiction to award damages for land taken for a street, because the ordinance under which he is assuming to act does not ask to have such damages awarded.” ' The foregoing too narrowly states respondent’s position as to the effect of the appeal from the verdict in the municipal court. That position, as set forth in the return, is: “That said ■appeal so taken operates to cárry the entire proceed-)
Relators maintain that although the publication of the order of the municipal court under ordinance 3209 was defective, yet the court had jurisdiction of the subject-matter and of all property owners, both of the benefit district and of the property to be condemned, who appeared and participated in the proceedings ; that as to them, when the verdict and judgment in the municipal court was unappealed from, was delivered to the city treasurer for collection and a large amount of the assessments paid, it became res adjudi-cada, the subject-matter of which respondent had no> power to readjudicate in a supplemental proceeding-brought to assess other property omitted by mistake in the first. Both relators and respondent stand committed to the theory that the original proceeding was regular and binding upon the parties appearing thereto, up to some point in the progress thereof in the municipal court; otherwise, there would be no basis for a supplemental proceeding, nor for the injunction against the .city when it sought to begin the proceedings anew.
In elucidation of respondent’s contention upon this point, we quote from his brief as follows:
“It is undoubtedly true that if an error had been committed in the proceedings in the municipal court, and that error had been discovered in the proceedings in that court, a supplemental proceeding in that court*579 would have been necessary to cure the defect thus discovered, and the judgment of the municipal court would be affected only in so far as it was necessary to correct the same in curing the defect. Thus, for example, if proceedings had been regular in the municipal court with reference to ascertainment of damages for property taken, and irregular with reference to the assessments of benefits against' property in the benefit district, the supplemental proceeding would have been directed solely to the correction of the error in the assessing of benefits. And the judgment in the original proceeding would be cured by the correction of that judgment in the supplemental proceeding. The original judgment in such a case would, in a sense, be an interlocutory judgment, to be perfected and ripened into a final judgment, upon the conclusion of the supplemental proceeding. If there had been no appeal, either from the judgment in the original proceeding or from the judgment in the supplemental proceeding, in the mayor’s court, the corrected judgment in that court would be final and would be one entire judgment. A condemnation proceeding under the Kansas City charter is ‘one proceeding, not many; one judgment and not several.’ ”
The position of the respondent, as shown by the above excerpt, is that if an appeal had not been taken in the supplemental proceedings, then the verdict in the original proceedings should be corrected by the verdict in the supplemental proceedings, so as to include all property affected, and then, as corrected, to be delivered to the city treasurer, or in case of an appeal, to be transferred .to the circuit court, where the entire case would be reopened for trial de novo. This view is not in accord with the course pursued by the city in the municipal court, for, as shown by the record, the jury in the supplemental proceedings assessed all of the property in the benefit district and also allowed compensation for all of the property to be tak
If the verdict in the original proceedings was valid as to those who appeared and who accepted it, why should it become “interlocutory” merely because supplemental proceedings were necessary as to other property, and be entirely vacated because an appeal was taken in such supplemental proceedings? We are of the opinion that the original proceedings, when un-appealed from, became res adjudicata, and not subject to trial ele novo in the supplemental proceedings, and for the following reasons:
(a) The charter makes no provision for vacating the original proceedings or treating them as interlocutory in case of supplemental proceedings. On the contrary, it is expressly provided that the common council may repeal the ordinance for the proposed improvement “at any time before any of the.parties assessed with benefits shall have paid the amount so assessed . . . and in such event the judgment for compensation and benefits shall be void.” Under a
(b) It is provided by Sec. 4 of Art. 6 of the charter that “no assessment shall be affected or interfered with for the reason that any other assessment or assessments made in the same proceeding may be invalid in whole or in part.” This provision would preclude, as a valid defense to the enforcement of the assessment, the fact that other property benefited was not legally assessed. If the city can enforce the collection of assessments in such cases, it must be for the reason that the judgment is final and not merely interlocutory, and if final as to the city it is also final as to the property owner. The .reason underlying this provision of the charter is apparent, namely, that as the city is given power to subject property omitted by mistake to its proportional part of the cost of the improvement, by a supplemental proceeding, there is no reason why the assessment of other property should not be paid if, as to it, the assessment was regular.
(c) By section 8 of article 6 it is provided that when recommended by the board of public works, the city may pay the damages awarded for the property taken and have possession thereof before the assessments for benefits are collected. In such case the assessments, when collected, are credited to a fund to reimburse the city. If after the city had thus acquired the property, a defect should be discovered in the proceedings as to some of the property assessed with benefits, and there was a refusal to pay for that reason, as was done in this case, would a supplemental proceeding to remedy such defect, and an appeal therefrom to the circuit court, take up the entire case for trial de novo, including the ascertainment of compensation for the property taken? Clearly it would not, for the owners would have received the amount award
(d) By Sec. 5 of Art. 6 of the charter it is provided that if the property to be taken is owned by an incorporated company, such company may file in the municipal court a petition demanding a trial by a common law jury. This petition must be filed before the jury is impaneled, and the entire case, without further action in the municipal court, must then be transferred to the circuit court. If supplemental proceedings should be made necessary'because, of a defect in the taking of property 'belonging to such a company and a petition as above should he filed in the municipal court, where, in such case, would the supplemental proceeding, as stated by respondent, begin to “ride with the original proceeding and accompany it through its course?” If at the stage in which the petition is so filed, then- it would be before the municipal court acquired jurisdiction of those property owners who were not legally served, but voluntarily appeared.
Many other illustrations could doubtless be given from the several provisions of the charter, to show the unsoundness of the construction that an appeal to the circuit court in a supplemental proceeding necessitates a retrial of the entire case intended to be included in the original proceeding.
We shall now consider the main objections urged by respondent in opposition to the construction of the charter as herein adopted.
It is contended that a condemnation proceeding is an entirety — that there is the compensation to be allowed on the one hand and the assessments of benefits on the other, the benefits to correspond exactly in amount with the compensation, and that such result could not be secured if the compensation'and benefits
It is also urged that the charter contemplates “that the property owners in the benefit district shall have their day in court on the question of the amount of the allowance to be made for the property taken and damaged.” It is plausibly argued in support of the foregoing that as the property owners of the benefit district and the city must pay the damages awarded for property taken, they should have their day in court as to the amount of damages for which their property shall become charged.
In the exercise of the right of eminent domain in the taking of private property, as in the case in hand, the necessary parties are the city as the plaintiff, on the one side, and the property owner as the defendant, on the other. And while it would be entirely proper as a matter of grace to permit the owner of property in the proposed benefit district to aid the city in preventing an unduly high valuation of the property condemned, yet such owner would have no standing
In the case of Kansas City v. Smart, supra, a. proceeding under charter provisions similar to those involved in this case, in answer to questions raiséd by owners of property in the benefit district as to a denial of the rights of owners of property to be taken, this court, l. c. 292, said: “No person is interested in the compensation to be awarded these incorporated, companies, except the city and the companies.”
The same subject is discussed in the case of Goodrich v. Detroit, supra. The contention of the owners; of the property to be assessed, and the answer thereto, are stated by the court (l. c. 437) as follows:
“The argument of the plaintiffs is that the owners of the property liable to be assessed for the benefits are just as much interested in the question as to» the necessity of making the improvement and the amount of compensation as are the owners of land to be taken for such improvement, and the same reasons for notice apply in the one case as in the other. . . .
“The law in this court is too well settled to be now disturbed, that the interest of neighboring property owners, who may possibly thereafter be assessed' for the benefit to their property accruing from opening a street, is too remote and indeterminate to require notice to them of the taking of lands for such improvement in which they have no direct interest. The position of plaintiffs in this particulaar would require a readjustment of the entire proceedings, and a determination of the property incidentally benefited, before any proceeding's are taken for the condemnation of the land directly taken or damaged by such improvement. It might be argued upon the same lines that,*585 ■whenever the city contemplated a public improvement of any description, personal notice should be given to the taxpayers, since all such are interested in such improvements and are liable to have their taxes increased thereby. It might easily happen that a whole district or ward of a particular city would be incidentally benefited by a proposed improvement, as for instance, n public school, yet to require personal notice to be .given to all the taxpayers of such ward would be an intolerable burden. Hence, it has been held by this ■court that it is only those whose property is proposed to be taken for a public improvement that due process of law requires shall have prior notice.”
The foregoing authorities fully answer respondent’s complaint as to the right of the property owners in the benefit district to a hearing on the question of the compensation to be allowed for property taken, and make further discussion unnecessary.
in. The question remains: Are relators entitled to relief by prohibition?
It is the recognized law of prohibition that the writ will lie to prevent the exercise of judicial power in a ease where there is a want of jurisdiction in the court to exercise any judicial authority, or wjiere the court is acting in excess of its jurisdiction in a case rightfully before it. [State ex rel. v. Tracy, 237 Mo. 109, and authorities cited; State ex rel. v. Fort, 210 Mo. 512, and authorities cited; State ex rel. v. Bradley, 193 Mo. 33; State ex rel. v. Sale, 188 Mo. 493; State ex rel. v. Fort, 178 Mo. 518.]
In State ex rel. v. Fort, 210 Mo. l. c. 525, this court stated the law as follows:
“It cannot be doubted that (subject to a judicial ■discretion to be exercised in issuing all discretionary writs) the writ of prohibition may go to confine a court within the limits of its jurisdiction whether such court has no jurisdiction at all or is exercising powers*586 in excess of its rightful jurisdiction. So much, is elementary. The writ may go whenever judicial functions are assumed, not rightfully belonging to the person or court assuming them. Generally speaking, it is available to keep a court within the limits of its powers in any particular matter, as well as to prevent the exercise of jurisdiction in a cause not given to it by law. [State ex rel. v. Foster, Judge, 187 Mo. 590; State ex rel. v. Elkin et al., County Judges, 130 Mo. 90; State ex rel. v. Eby, Judge, 170 Mo. 497; State ex rel. v. Bradley, Judge, 193 Mo. 33; State ex rel. v. Fort, Judge, 178 Mo. 518.]”
We have held that neither the municipal court in the supplemental proceedings, nor the circuit court on appeal, had jurisdiction over relators’ property. As relators limited their appearance in the circuit court specially for the purpose of challenging the court’s-jurisdiction, there was a want of jurisdiction, both as to the subject-matter and the persons, and as respondent as judge of said court was about to exercise judicial power in a matter in which the court was without jurisdiction, relators have shown themselves entitled! to the relief prayed for. .
It follows ‘that the preliminary rule should be made absolute. It is so ordered.