Chicago, Rock Island & Pacific Railway Co. v. Young

96 Mo. 39

• Court: Supreme Court of Missouri
• Decided: April 15, 1888
• Status: Published

Opinion

Sherwood, J.

By certiorari, the Chicago, Rock Island & Pacific Railway Company brought up to the circuit court certain proceedings had in the county court for opening a public road, and when the proceedings of the county court were thus brought up for revision, moved to quash them for reasons to be presently noticed. This motion was denied.

Whenever the proceedings of a court, summary in their nature, are had with the view to take or condemn the property of a citizen, it must affirmatively appear on the face of such proceedings, that all facts necessary to confer jurisdiction existed, before final action taken in the tribunal depriving the owner of his-property. Such jurisdictional requisites do not affirmatively appear in the case at bar. Aside from a mere statement to that effect in the petition ( Backenstoe v. Railroad, 86 Mo. 492; Mitchell v. Railroad, 82 Mo. 106; King v. Railroad, 90 Mo. 520), it does not appear that twelve of the petitioners are householders of the township through which the proposed road is to run, nor that three of them are of the immediate neighborhood, as provided in Revised Statutes, section 6985, nor that notice of the intended application for the road had been given by handbills, etc., twenty days, etc., as required by Revised Statutes, section 6936. The statement in the order reciting the fact of the filing of the petition, that due-legal notice of the intended application was proved, does not meet the requirements of the statute, nor cause the necessary facts to affirmatively appear. Van Wickle v. Railroad, 2 Greene, 162.

The fact of notice having been given in the mode pointed out by the statute, is as much a j nrisdictional prerequisite as is the residence of the statutory number of petitioners. If either be lacking, the jurisdiction fails, and for the obvious reason that such proceedings, being in invitum, in derogation of common law and common right, are always regarded as strictissiml juris, and receive no help from intendments or implications, and so this court has repeatedly held. Ellis v. Railroad, 51 Mo. 200, and cases cited; Jefferson County v. Cowan, 54 Mo. 234; Whitely v. Platte County, 73 Mo. 30; Zimmerman v. Snowden, 88 Mo. 218; Anderson v. Pemberton, 89 Mo. 61; Colville v. Judy, 73 Mo. 615 ; Railroad v. Campbell, 62 Mo. 585.

Again, section 6937, Revised Statutes, says : ‘ ‘ The commissioner, shall take the relinquishment of the right of way of all persons who may give such, and make report thereon. The commissioner shall also state, in his report, the names of all persons who have relinquished the right of way or who have failed to relinquish the right of way, giving the names of - both and the reasons therefor.” It is quite apparent from the provisions of this section, that it contemplates a conference between the commissioner and the owners of the right of way along the proposed route; for how else could he report to the county court what persons had relinquished the right of way, and what persons had failed to do so, “ giving the names of both and the reasons therefor,” or how could he take the relinquishments of persons willing to make them1? It does not appear that the commissioner, in this case, discharged his duty in this particular. And it is only upon failure of a land-owner or land-owners to relinquish, that the county court has any authority to appoint three freeholders to view the premises and assess the damages. R. S., sec. 6938. The failure of the owner to relinquish thus becomes a jurisdictional fact, and the rule laid down in Ellis case, supra, and subsequent cases, applies. As was aptly said in a previous case in this court, when treating of the subject now in hand: “The power to take property for public use, without the consent of the owner, is in derogation of the rights of the citizen, and can only be justified on the grounds of absolute necessity, * * '* and when exercised, the power conferring the right must be strictly adhered to and complied with. It is no answer to say that certain things in a given enactment, conferring the authority, do not appear to be essential. Everything is essential which the law has-said should be done, before this high prerogative right can be carried out and enforced.” Leslie v. St. Louis, 47 Mo. 474.

But furthermore, the writ of certiorari is in the nature of a writ of error, and operates in a similar way. Farmington v. County Commissioners, 112 Mass. 206; 3 Bouv. Inst., 556. By it, errors which, might not be fatal in a collateral proceeding, may be the basis of redress.

The judgment should be reversed and the cause remanded.

Ray, J., absent; the other judges concur.