St. Joseph v. Geiwitz

BURGESS, J. This is a proceeding instituted by the •city of St. Joseph, a city of the second class, under the provisions of an act of the General Assembly of the State of Missouri, entitled “An act in relation to the condemnation of private property for public use in cities of the second class,” approved March 28, 1893 (Laws of 1893, p. 62), for the purpose of opening and extending Seventeenth street in that city. After passing an ordinance in pursuance of the act, the ■city presented its petition to one of the judges of the circuit ■court of Buchanan county, in vacation, and thereupon a summons was issued which was duly served, notifying defendants that on a day therein named commissioners would be appointed to assess the damages and benefits to their property which was sought to be condemned for, or damaged by reason of, the •extension of said street. The commissioners were duly appointed, and made their assessment and return, without notice to the property owners, or without giving them any opportunity to be heard before them. By this report the damages [215] and benefits were assessed in gross to each individual owner, but afterwards an amended report was filed making the assessments separately. To this amended report defendants Gott-lieb Geiwitz and Emeline E. Loan filed exceptions. The exceptions were overruled and the report of the commissioners approved. After unsuccessful motion for a new trial Gei-witz and Loan bring this case to this court by appeal. While it is stated in the brief presented on the part of the defendant Loan, that but two grounds are insisted upon, for a reversal of the judgment, namely, that the Act of 1898 is unconstitutional, and, second, that the commissioners pro-ceded without giving the defendants an opportunity to be heard on the question of damages, they are substantially but one and the same question, that is, that the law is unconstitutional because it makes no provision for notice and hearing before the commissioner, and, therefore is taking private property for public use without due process of law within the' meaning -of section 30, article II, Constitution of Missouri. After the service of the summons issued upon the petition presented to the judge, no further notice to those thus served was necessary, but they were bound to take cognizance of all acts or steps thereafter taken in the proceeding. That appellants did take cognizance of the acts of the commissioners is evidenced by the fact that, after they made their report, appellants filed exceptions thereto, and thus availed themselves of their constitutional right to be heard upon the question of damages. Because of the mere fact that they were not notified of the exact time when the commissioners would view the property, and pass upon the question of damages and benefits thereto, appellants were deprived of no rights guaranteed to them, as they thereafter had their day in court, and were granted a hearing on exceptions to the commissioners’ report. This was all that was necessary. [Hager v. Reclamation District, 111 U. S. 701.] While-this question was not passed upon in City of St. Joseph v. [216] Crowther, 142 Mo. 155, the act in question as a whole was held to be constitutional, the court saying: “Every presumption must be indulged in favor of the validity of the act .We feel no hesitancy in holding the act constitutional.” It seems that the commissioners’ report was confirmed as to all the lots therein described except two, viz., lots five, and six in block two in Donnell’s addition, and as to them the court appointed new commissioners, and in this defendant Geiwitz contends, committed error in this, that the report could only have been confirmed as a whole. We know of no law that prohibits the confirmation of a report of this character in part, and can conceive of no good reason why the course pursued was not a proper one. Defendant does not even claim that his rights were in any way prejudiced by the course pursued, hence he has no apparent cause to complain. After the exceptions of this defendant to the report of the commissioners were overruled he demanded a trial by jury which was denied, and in this also he claims that error was committed. At common law the right of trial by jury in condemnation proceedings did not exist, and in the absence of a constitutional or statutory provision conferring such right, it does not now and never did exist in this State. [Railroad v. Railroad, 118 Mo. 599, and authorities cited; 64 Mo. 573.] Kansas City v. Vineyard, 128 Mo. 75, was a proceeding by that city, to condemn private property for the purpose of extending one of its streets, and it was held that a municipal corporation is not an incorporated company within the meaning of section four, article twelve of the Constitution of this State, which provides that “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 [217] exercise of such right,” and conferred no right upon a person whose land was sought to be condemned for the extension of the street, to a trial by jury on the question of damages. [See, also, Kansas City v. Hill, 80 Mo. 535; Kansas City v. Smart, 128 Mo. 272; Mills on Eminent Domain (2 Ed.), sec. 91.] As there is neither constitutional provision nor statute which entitled Geiwitz to trial by jury, no error was committed in refusing his request for such trial. A final contention is that defendant should be paid for the value of the land taken,- and damages to the remainder of the tract, if any, by reason thereof, irrespective of benefits, and in view of the fact that the courts of so many States have announced the law according to this contention, we are asked to re-examine the question in the light of recent decisions, but as it would serve no useful purpose we must decline to do so, as whatever the law may be in other jurisdictions, the rule annoitnced in Newby v. Platte County, 25 Mo. 258, which is adverse to this contention, has been too long adhered to, to be overthrown or departed from. The judgment must as to both appellants be affirmed, and it is so ordered. GaNtt, P. J., and Shebwood, J., concur.