Opinion
No. 21436.
June 5, 1950.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, THOMAS R. HUNT, J.
C. W. Prince, Kansas City, for appellants.
David M. Proctor, Benj. M. Powers, Kansas City, for respondent.
This is a condemnation proceeding by Kansas City authorized under Ordinance No. 11803 and entitled, "An Ordinance to condemn and take certain lands in the East Park District of Kansas City, Missouri, for public use for park purposes, providing for the payment of compensation therefor by special assessment on real estate, and establishing the benefit district therefor."
The court made an order of publication which was duly published according to law, describing the ordinance and giving notice that on a certain date a condemnation jury would be impaneled to ascertain the compensation to be paid for the private property to be condemned and taken for park purposes and to assess benefits of the property within said benefit district. On the appointed date a panel of persons was summoned as jurors and, after being sworn and examined concerning their qualifications, six free-holders were selected as jurors to assess the damages for the property taken and to assess the benefits to property not taken within the district. In due time a trial was had, evidence heard, and the jury returned its findings into court; whereupon E. F. Dougherty, who was the owner of certain lots condemned and taken, and G. L. Musser, who was the owner of a deed of trust secured by said lots, and W. D. Bush, as trustee in said deed of trust, filed their exceptions to the findings of the jury and demanded trial by a common-law jury of twelve competent persons. The exceptions were overruled and the demand for a trial by a common-law jury was denied and judgment entered confirming the verdict and award of the condemnation jury theretofore selected. From this judgment the three named defendants appealed to the Supreme Court, and thereafter the cause was transferred to this court by order of the Supreme Court.
Appellants' one assignment of error is that the court erred in refusing them a trial by a jury of twelve persons as provided by Sec. 1, Laws 1945, page 1072. This section reads: "Any Plaintiff or Defendant, individual or corporate, shall have the right of trial by Jury of twelve (12) persons, if either party file exceptions to the award of the commissioners in any condemnation case."
It is conceded the city proceeded according to the provisions of its charter for condemning land. Sec. 142 of the charter provides that on the return day of the order of publication or at any day to which the proceeding may be continued, "the court shall empanel a jury of six disinterested freeholders of the city." Sec. 144 provides for a trial at which the parties may submit evidence. That was done in the instant case by plaintiff and defendants, and the jury was instructed by the court and returned its verdict. Sec. 155 provides that, within four days after the rendition of the verdict, any party may file a motion to set it aside. If that motion is sustained, a new jury shall be impaneled and the cause tried de novo; but if the verdict is not set aside, then it shall be confirmed by the court and judgment entered thereon.
The appellants contend that Sec. 1, supra, providing for a jury of twelve persons, is a general state law and supersedes, or in effect repeals, the provision of the city charter authorizing a jury of six freeholders to assess damages in a condemnation suit brought by the city. The city contends that section does not apply or control because the right of eminent domain in a city is a matter of local municipal government and that its charter cannot be amended, superseded or repealed by legislative act on a subject which concerns purely local municipal government.
Section 19, Article 6, Constitution of 1945, Mo.R.S.A., provides: "Any city having more than 10,000 inhabitants may frame and adopt a charter for its own government, consistent with and subject to the Constitution and laws of the state, * * *." This section is substantially the same as Section 16, Article 9, Constitution of 1875. Under such constitutional authority Kansas City has adopted a special charter which provides a complete plan and scheme for the condemnation of private property for public use, such as streets, parks, etc., certain provisions of which are referred to supra. Section 26 of Article 1, of the 1945 Constitution, Mo. R.S.A., provides: "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 provided by law; * * *." It is clear that the charter provision does not violate this constitutional requirement because the charter provides for a jury of six freeholders. However, defendants argue that Section 1, supra, is a legislative pronouncement of general law applicable to all parties throughout the state and that the charter provisions of Kansas City must give way to such legislative act. We are not favorably impressed with this argument. Our courts have many times held that the condemnation of property by municipalities for public use is a matter pertaining to local municipal government and the procedure therefor may be provided in the city charter. This principle of law was so clearly expressed by the court en banc in State ex rel. Graham v. Seehorn, 246 Mo. 541, 557, 151 S.W. 716, 720, that we quote: "Under repeated decisions of this court it is settled beyond question that the condemnation of property in municipalities, for the use as public streets, is a matter pertaining to local municipal government as contradistinguished from such as belong to the domain of general state control; and, further, that procedure prescribed by the charter in such condemnation cases, 'not inimical to the general scope of the policy of our constitution and law,' will prevail as against provisions of the general law upon the same subject."
In Brunn v. Kansas City, 216 Mo. 108, 115 S.W. 446, Judge Lamm gave a clear picture of this principle of law, and we think it worthy of quotation. He said, 216 Mo. 117, 115 S.W. 449: "Further, it is settled law that when special charter provisions relating to procedure in condemnation cases are not inimical to the general scope of the policy of our Constitution and laws, then such special provisions govern as against the provisions of general law; that is, such special provisions may be likened to exceptions read into or grafted on the general law. (See authorities, supra.) Again, it must be taken as the accepted doctrine that powers granted, and charter provisions adopted pursuant, relating to the exercise of the right of eminent domain by a city of the class of Kansas City in establishing parks, boulevards, and streets, pertain peculiarly to the domestic municipal affairs of such city and therefore come within the purview of its powers freed from interference by the Legislature, so long as such provisions do not contravene the general policy of our laws and Constitution. In fine, the constitutional idea was that charters under consideration should present a complete scheme of local self-government and that where their provisions conflict with the general statutes on a merely municipal regulation (such as condemnation proceedings are held to be) the charter provisions should control; * * *."
The judgment should be affirmed. It is so ordered.
All concur.