Summary
In State ex rel. Dennis v. Williams, 362 Mo. 176, 240 S.W.2d 703 (1951), in St. Louis, a charter city, damages for a change of grade of several individuals were awarded under the charter provision for ascertaining damages by a condemnation commission of three persons.
Summary of this case from Kansas City v. WebbOpinion
No. 42206.
June 11, 1951.
The facts and holding of the opinion are adequately summarized in the headnote.
PROHIBITION: Eminent Domain: Municipal Corporations: Juries: Constitutional Law: Condemnation Proceedings in Accord With City Charter: Jury of 12 Not Required. Under Sec. 88.073 R.S. 1949 the City of St. Louis had the right to elect to proceed under the provisions of its charter in a condemnation proceeding. Relator does not have the right to have the trial of her exceptions held before a common law jury of twelve persons. Constitutional rights of relator are not violated. The preliminary rule in prohibition against respondent circuit judge should be discharged.
PRELIMINARY RULE DISCHARGED.
Gilbert Weiss for relator.
(1) A jury trial is mandatory in the determination of consequential damages. Sec. 88.090, R.S. 1949; Markowitz v. Kansas City, 125 Mo. 485, 28 S.W. 642; Bakewell v. City of Lee's Summit, 326 Mo. 491, 32 S.W.2d 63. (2) A jury trial in eminent domain proceeding on exception to the award is granted by Statute. Sec. 523.060, R.S. 1949. (3) Charter provisions in violation of general statute void. Kansas City v. Daugherty, 237 S.W.2d 118. (4) Statutes and charter provisions denying jury trial to individuals and granting same to corporations constitutes violation of equal protection of law under XIV Amendment, U.S. Constitution. Frost v. Corp. Com. of State of Okla., 49 S.Ct. 235, 278 U.S. 515. (5) Jury trial in condemnation proceeding is granted under the Constitution of 1945. Art. I, Secs. 22 and 26; Art. XI, Sec. 4. James E. Crowe, James B. Steiner and Oliver T. Johnson for respondent.
(1) The history of the enactment of the 1943 Act, p. 623, as amended by the 1945 Act, p. 1072, shows it was passed to insure the right of trial by jury in Federal condemnation suits in Missouri. Title 40, U.S.C.A., Secs. 257-8; Federal Rules, Rule 81 (a) (7); United States v. Certain Lands in Jackson County, Missouri, 48 F. Supp. 588; United States v. Hess, 70 F.2d 142, 71 F.2d 78; Sec. 1508, R.S. 1939; Mallette v. United States, 137 F.2d 95. (2) At common law the right of trial by jury did not exist in condemnation proceedings. St. Joseph v. Gerwitz, 148 Mo. 210, 49 S.W. 1000; Kansas City v. Smith, 238 Mo. 323, 114 S.W.2d 1103; St. Louis v. Smith, 325 Mo. 471, 30 S.W.2d 729. (3) The Constitutions of Missouri, 1875 and 1945, authorizing trial by jury in ordinary civil actions, do not give the right thereto in condemnation proceedings. Constitution 1875, Art. II, Sec. 28; Constitution 1945, Art. I, Sec. 22a. (4) Condemnation proceedings are special and are governed by special provisions, and only "an incorporated company", that is, "any (private) corporation" is entitled to trial by jury under the Constitution, and not an individual. Constitution 1875, Art. XII, Sec. 4; Constitution 1945, Art. XI, Sec. 4. (5) An "incorporated company" in the 1875 Constitution has been defined as a private corporation and is not a municipal corporation. Constitution 1875, Art. XII, Sec. 11; St. Louis v. Roe, 184 Mo. 324, 83 S.W. 435; Kansas City v. Vineyard, 128 Mo. 75, 30 S.W. 326; Kansas City v. Smart, 128 Mo. 272, 30 S.W. 773. (6) "Any corporation" in the 1945 Constitution has been defined as a private corporation, and is not a municipal corporation. Constitution 1945, Art. XI, Sec. 1. (7) The condemnation of private property in cities under special charter, framed and adopted pursuant to Art. IX of the Constitution of 1875, is a matter of local municipal concern and is governed by said special charter, and therefore, the St. Louis Charter, Art XXI, Sec. 7, prevails over the State law, the 1943 Act. Const. 1875, Art. IX, Secs. 20-23; Const. 1945, Art. VI, Secs. 31, 32a, 32b, is cited for reference and comparison; Laws 1885, p. 47, as amended by 1887, p. 37; Laws 1887, p. 42; State ex rel. Kansas City v. Field, 99 Mo. 352, 12 S.W. 802; Kansas City v. Marsh Oil Co., 140 Mo. 458, 41 S.W. 943; Kansas City v. Boruff, 295 Mo. 28, 243 S.W. 167; State ex rel. v. Seehorn, 246 Mo. 541, 151 S.W. 716; Tremayne v. St. Louis, 320 Mo. 120, 6 S.W.2d 935, approving Marsh Oil and Field cases; St. Louis Charter, Art. XXI; State ex rel. v. Lucas, 317 Mo. 255, 296 S.W. 781. (8) An individual is not entitled to trial by jury when a municipal corporation is plaintiff. Kansas City v. Vineyard, 128 Mo. 75, 30 S.W. 326; Kansas City v. Smart, 128 Mo. 272, 30 S.W. 773; St. Louis v. Smith, 325 Mo. 471, 30 S.W.2d 729; Const. 1875, Art. XII, Sec. 4; Const. 1945, Art. XI, Sec. 4. (9) Sec. 7, Art. XXI, St. Louis City Charter, providing for trial of exceptions before the court without a jury of 12 (the exception being Sec. 3, Art. XXI), is in harmony with and subject to the Constitution and laws of Missouri. Const. 1875, Art. IV, Sec. 23; Kansas City v. Marsh Oil Co., 41 S.W. 943, 140 Mo. 458; Kansas City v. Bacon, 147 Mo. 259, 48 S.W. 860; Kansas City v. Bruun, 216 Mo. 108, 115 S.W. 446; State ex rel. v. Lucas, 317 Mo. 255, 296 S.W. 781. (10) The St. Louis City Charter, Article XXI, being a special charter framed and adopted by the people of said City, pursuant to Article IX of the Constitution of 1875, cannot be amended by an act of the State Legislature, and it could be amended only by Sec. 22, Art. IX, of said Constitution. Since the adoption of the 1945 Constitution said charter may be amended only by Art. VI, Secs. 32 (a), 32 (b), 33 thereof. Kansas City ex rel. North Park Dist. v. Scarritt, 127 Mo. 642, 29 S.W. 845; Bruun v. Kansas City, 216 Mo. 108, 115 S.W. 446. (11) If this court holds that the exceptions of the relator must be tried before a jury of 12, such a ruling would, in effect, repeal Section 7, Article XXI, and part of Section 3, Article XXI, of said charter. Art. XXI, Secs. 3, 7, St. Louis Charter. (12) The relator cites seven cases in her suggestions in support of her petition for writ of prohibition, but these cases deal with State laws and subjects which are not municipal matters, and are certainly not matters of municipal concern, such as condemnation proceedings. Trustees of Louisiana Purchase Exposition Co. v. Schnurmacher, 160 Mo. App. 611, 140 S.W. 1198; Rodgers v. National Council etc., 172 Mo. App. 719, 155 S.W. 874; State ex rel. v. Board of Education, 294 Mo. 106, 242 S.W. 85; State ex rel. Dwyer v. Nolte, 351 Mo. 271, 172 S.W.2d 854; State ex rel. Volker v. Carey, 345 Mo. 811, 136 S.W.2d 324; State ex rel. Carpenter v. St. Louis, 318 Mo. 870, 2 S.W.2d 713; State ex rel. McNamee v. Stobie, 194 Mo. 14, 92 S.W. 192.
On July 26, 1950, relator filed her petition in this court asking that a writ of prohibition be issued against respondent. Our preliminary rule was issued and respondent, for his return, filed demurrer to the petition and the preliminary rule upon the grounds that they do not state facts sufficient to constitute a cause of action; and, that, under the Constitution and laws of Missouri and the Charter of the City of St. Louis, the trial of exceptions in condemnation proceedings in said city is not required to be held before a common law jury of twelve persons. Under this state of the record, we must accept as true all proper allegations of the petition.
The petition alleges that respondent is a judge of the Circuit Court of the City of St. Louis and is presiding in Division 7 of said court; that relator is one of the defendants in a condemnation proceeding [704] brought by said city pursuant to a certain ordinance providing for such a proceeding "to ascertain the damages and special benefits by reason of the establishment and change of grade" of a certain street in said city; that the change of grade would damage relator's property fronting on said street; that in proceeding in accordance with the city charter in effect at that time, the Circuit Court referred the determination of damages of (relator's) property to the Permanent Condemnation Commission; that said commission (composed of three freeholders) proceeded to make its award and assessed relator's damages; that within the time allowed, relator filed her exceptions to said award, and also filed a motion requesting that she be granted "a jury trial in accordance with the Constitution and the Laws of the State of Missouri, in particular the Laws of 1943, p. 623"; that respondent overruled said motion and is threatening to try said exceptions without a jury and has set said cause for trial on July 28, 1950; and that she has no adequate remedy by appeal. Relator does not question the validity of the preliminary steps taken by the city under its charter leading up to the filing of the petition in condemnation, nor does she question the sufficiency of the petition. Her sole contention is that, when she filed exceptions to the report of the commissioners and requested a trial by jury, she was entitled to a jury of twelve persons.
It is conceded that the city proceeded under and in accordance with the applicable provisions of its charter. Sec. 7, Art. 21 of the charter, defines the procedure if exceptions are filed to the commissioners' report and provides that the court shall review the report and may order a new assessment under additional instructions or may appoint a new commission of three persons to make another assessment; and shall hear and dispose of such exceptions with all reasonable speed, and may itself assess benefits anew.
However, relator contends that such procedure is in conflict with certain statutory and constitutional provisions which guarantee to her a trial by a common law jury. She relies on Secs. 523.060, 88.080 and 88.090, R.S. 1949; Art. 1, Secs. 22 and 26; Art. 11, Sec. 4, of Missouri Constitution 1945, and the Fourteenth Amendment of the Constitution of the United States.
Sec. 523.060, originally passed, Laws 1943, p. 623, and amended Laws 1945, p. 1072, provides: "Any plaintiff or defendant, individual or corporate, shall have the right of trial by jury of twelve persons, if either party files exceptions to the award of commissioners in any condemnation case."
The rights conferred by this statute, and the cited constitutional provisions, were recently considered by this court en banc in Kansas City v. Dougherty, 361 Mo. 829, 237 S.W.2d 118. The court divided four to three on the question of the effect of said Sec. 523.060. The majority of the court concurred in the opinion of Dalton, J., holding that said section did give to an individual defendant the right to a jury trial in a condemnation suit, if exceptions were filed to the award of commissioners, whether the suit was brought by a city under special charter or by some other party authorized to condemn property. The opinion of Ellison, J., concurred in by two judges, held that said section would not give relator the right of trial by jury of twelve persons because the word corporate refers to private or business corporations and not to municipal corporations. However, the majority opinion held that the General Assembly, at its 1949 Session, passed an Act, now Sec. 88.073, which must be read and construed with Sec. 523.060 and, when so read and construed, the 1949 Act is a modification and an exception to the general provisions of Sec. 523.060 in so far as that section is applicable to any constitutional charter city and does not now control the right to a jury trial in a condemnation proceeding brought by a city under its charter, but that such right is now governed by Sec. 88.073. That section provides: "Whenever the charter of any constitutional charter city makes provision for the condemnation of property for public purposes and assessment of benefits therefor, such city may elect to proceed with such condemnation or assessment, or both, in the manner provided in [705] Secs. 88.010 to 88.070 or to proceed in the manner provided in its charter." (Italics ours.) This Act became effective on April 14, 1950, and, as stated above, it is conceded the present condemnation proceeding was in the manner provided by the city charter. Thus both opinions, although for different reasons, agree that Sec. 523.060 does not now give to an individual defendant the right to a trial before a common law jury in a condemnation suit brought by a charter city in the manner provided by its charter.
Both opinions also agree that, prior to the passage of Sec. 523.060, the courts of this state had uniformly held that a trial of exceptions to an award of damages in a condemnation suit by a common law jury was not available to individual defendants, under the constitutional provisions cited by relator, where cities under special charter brought the proceeding in the manner provided by its charter, and both opinions approve such holding. Thus it is unnecessary again to discuss the constitutional provisions cited and relied on by relator. (See cases cited in opinion by Ellison, J.)
In her brief filed subsequent to the oral argument in this case, relator contends that the only question involved in the condemnation proceeding against her is one of "consequential damages" as provided by Sec. 88.080, R.S. 1949, and that under Sec. 88.090 (1949) she is entitled to a trial by a common law jury on her exceptions to the report of the commissioners. It is perfectly apparent from relator's petition that the city is proceeding under and in the manner provided by its charter and not under Sec. 88.080. It does appear from the petition that there are forty-two different pieces of property affected by the improvements sought to be made by this proceeding, and we cannot determine from the pleadings whether the sole question involved is one of "consequential damages." Relator's petition does not seem to be brought on that theory. In so far as this suit in condemnation is concerned, we do not believe Secs. 88.080 and 88.090 have any application.
We hold that the Legislature intended, by the 1949 Act, supra, to restore to constitutional charter cities the right, if they so elect, to condemn property for public use and to assess damages and benefits in the manner provided by its charter.
It follows that our preliminary rule should be and is discharged and peremptory writ denied. All concur.