County Court v. Griswold

58 Mo. 175

• Court: Supreme Court of Missouri
• Decided: October 15, 1874
• Status: Published

Opinion

Wagner, Judge,

delivered the opinion of the court.

This case comes before us on an appeal from a judgment of the Circuit Court of St. Louis County, and the questions presented involve the constitutionality of the act of the legislature establishing Forest Park, approved March 25, 1874.

By the first section of the act a public park is established for the people of the county of St. Louis, to be called Forest Park, and its limits are designated and described. The County Court of the county is then authorized to purchase or condemn all the lands embraced within the defined boundaries for the purposes of the park, and there is a provision that before any purchase by the County Court of the property for the park, an appraisement of the property shall be made by three appraisers in the manner described in section two, and the County Court is forbidden to pay a larger sum for the property than the amount of the appraisement.

Section two provides that the County Court, by its presiding judge, shall file in the Circuit Court a petition setting forth the property, or any interest therein, sought to be condemned, the names of the owners thereof, and any matter deemed advisable or required by the Circuit Court. The Circuit Court is thereupon required to issue notice to the owners, or, if non-residents, bring them in by publication. This section then continues :

“ If the defendants be found to be the owners of or otherwise interested in the property, the court shall, unless the parties agree upon appraisers, within twenty days, appoint three disinterested men to view and appraise the property sought to be condemned, or if either party requires it, a special juryof six shall be summoned to fix the value of the same. If any appraiser or appraisers refuse or fail to attend or act, the court may appoint another. The appraisers or jury shall hear testimony under oath, and return their report into court within teii days after they are qualified to act. Their report shall be under oath, and a concurrence of a majority of them fixing the value of the property, shall be sufficient. It shall state the value, in cash, of the property, or of the interest or estate therein sought to be condemned, and any other fact the court may require. Either party may except to the report, in writing, filed in the Circuit Court, within ten days after it is filed, and not thereafter. All such exceptions shall be determined by the court in a summary manner. If there be no exceptions, or the same be overruled, the court shall confirm the report, and give judgment accordingly. Each of said appraisers, or of said jury, shall have been a resident of said county for the five years next before his appointment, and an owner in fee of real estate in said county, and not interested 3ti any of the lands of the park, or adjoining thereto; provided, in all cases, the assessment of the county assessor for the year 1873 shall be taken as a guide in fixing the value of property to be condemned or appraised.”

By section three it is provided that whenever the County Court shall pay' the amount so found to the party entitled to it, or pay it into the Circuit Court, the Circuit Court shall immediately order and decree that the title in fee to the property, and every other interest therein, be divested out of such owner and other persons interested, and vest forever in the people of the county.

The fourth section gives the County Court authority to issue the bonds of the county to. an amount not exceeding the sum of $1,300,000, and to apply the same to the purchase of any lands included in Forest Park, or to sell the bonds to such an amount as may be required for the payment of the property purchased or condemned, and to apply the balance, if any, to the improvement of the park.

The fifth section provides that for the payment of the bonds and the improvement of the park, the County Court shall increase the per centum of the county taxes one-half mill on the dollar; and the sixth section makes the county treasurer the custodian of all moneys arising .from the sale of the bonds or from the tax.

The seventh section then organizes a board of commissioners as follows: Three to be appointed by the County • Court of St. Louis County and confirmed by the Circuit Court ni general term, and three to be appointed by the mayor of the city of St. Louis, and confirmed by the city council of the city. The commissioners thus appointed constitute the board of Forest Park commissioners, and the presiding justice of the County Court is made ex officio a member of the board. The commissioners have power to lay off, improve, adorn, and generally govern, manage and control the use of the park, and the avenue surrounding the same, and to appoint officers and agents, prescribe their powers and duties, and make rules and regulations therefor.

In accordance with the above act the plaintiff presented its petition to the Circuit Court against the defendants, praying íor a condemnation and an appropriation of their lands. In that court a motion was made to quash the summons and dismiss the proceedings, because the court had nó authority or power to proceed in the cause or make' the orders prayed for by the petitioner.

The reasons assigned for the motion were that the act of the legislature, under which the proceedings were instituted, was unconstitutional; that the act was void for uncertainty and vagueness, and that the act was inoperative, inasmuch as there were no such legal person or political entity as the “people of the.county of St. Louis,” and no conveyance could be made to them. The court sustained the motion and quashed the summons, and dismissed the cause. To this ruling an exception was duly taken and the cause was appealed to this court.

It will be perceived that the only question in the case, is, whether the act is constitutional. Upon principle and authority the rule is settled, that acts of the legislature are to be presumed constitutional until the contrary is clearly shown ; and it is only when they manifestly infringe on some provision of the constitution that they can be declared void. For that reason, wherever there is a doubt it is to be construed in favor of the validity of the enactment. (State vs. C. G. and St. Line. R. R., 48 Mo., 468.) That the law is unjust or impolitic or oppressive, will not authorize a court to declare it illegal, unless it violates some specific provision of the constitution. This subject was thoroughly discussed by Mr. Justice Glamble, in Hamilton vs. St. Louis County Court, (15 Mo., 3) where, in conformity with all the authorities, he stated the true doctrine, that no court was authorized to declare an act of the legislature void, withoirt being able to point out some specific clause of the Constitution to which it was repugnant. A law may be unjust in its operation, or even, in the principles upon which it was founded; but that would not justify a court in expanding the prohibitions in the Constitution beyond their natural and original meaning, in order to remedy an evil in any particular case. These principles have now become axiomatic, and cannot be departed from.

It is contended, that in the present case the right of eminent domain could not prevail, because the park is clearly not for a public use ; that a park is a public use only for a municipality or a centre of a dense population, but that it is not demanded for the people of a county, and that here it is situated near one side of the .county, and therefore could not be beneficial or useful to the people of the more remote parts. It is true that the park is located in the eastern division of the county, in the vicinity of the city of St. Louis, and its establishment will be a great source of benefit to the inhabitants of the city. But it must be borne in mind that although the city of St. Louis is a distinct municipality, it is, nevertheless, a part of the county. It comprises the greater proportion of the population óf the county, and pay's the greater part of the county taxes. The court house is situated in the city, but it was built by taxation from the city and county alike, and is for the use and benefit of all, notwithstanding it is a county building. The park may be outside of the city limits and may be very advantageous to its citizens, but it may still redound to the interests of other portions of the county ; therefore, they allhave°an interest and derive a use from it; their united means construct and adorn it, and it is the county, including all its population, that is the real proprietor.

When it is once seen that the land which is sought-to be appropriated under the power of eminent domain is for a public use, then the legislative authority over the subject cannot be restricted or supervised by the courts ; when it is plainly perceived that there is an attempt to evade the law and procure the.condemnation of property for a private use, .or to accomplish an end which is not public in its character, then the courts will unhesitatingly declare the act void. Or if it was doubtful or questionable whether the use was public or not, testimony might be admissible to determine the fact. But where it is plainly taken for a public use, the necessity of the exercise of the power rests with the State. The legislature is the proper body to determine the necessity of the exercise of the power and the extent to which the exercise of it shall be carried, and there is no restraint upon the power, save that requiring that compensation shall be made. (The People vs. Smith, 21 N. Y., 597; The Brooklyn Park Co. vs. Armstrong, 45 N. Y., 234.)

This is the established doctrine on the. subject. In the case of Dingley vs. City of Boston, (100 Mass., 544) a case relied on by the respondents, a statute was passed to enable the city to abate a nuisance, and for the preservation of the public health,. It authorized the city to purchase, or otherwise take the lands within a large district; provided for payment to the owners of damages for the taking, and directed the city to raise the grade of the territory so taken or purchased with reference to a complete drainage thereof, so as to abate the nnisance and preserve the health of the city. It was insisted that the law was unconstitutional, as being the exercise of a judicial power, and as authorizing the taking of a greater interest in the land than was necessary. But the court ruled against both these positions, and sustained the validity of the law. It was declared that when land and other property was taken by the legislature, for the purpose of a public use, the legislature determined what property should be taken, and they might properly refer to the judiciary the duty of appointing commissioners as officers of the court to hear the parties interested, and apportion among them the expense of the proceeding and of rendering judgment on the report of the commissioners, and issuing process to enforce their judgment.

In Varick vs. Smith, (5 Paige, 137) it is said that the legislature is the sole judge as to the expediency of making police regulations interfering with the natural rights of citizens, which are not prohibited by the constitution, and also as to the expediency of exercising the right of eminent domain for the purpose of making public improvements, either for the benefit of-the inhabitants of the State, or any particular part thereof.

The case of Scudder vs. The Trenton, Delaware Falls Co., (1 Saxt., 694) contains a very learned and thorough discussion of this question. There a bill was filed to procure an injunction to restrain the defendants from entering upon the property of the complainant, for the purpose of cutting and constructing a raceway, to conduct water from the river Delaware to a point below Trenton Falls. The right to cut and construct the raceway was claimed by the company by virtue of an act of the General Assembly of the State, entitled, “An act to incorporate a company to create a water power at tlie city of Trenton and its vicinity, and for other purposes.” It seems that the company was incorporated for manufacturing purposes, and their charter gave them the right to condemn and appropriate property for their use. The Chancellor, after examining the whole doctrine applicable to the right of the exercise of the power of eminent domain, remarks: “ Before I undertake to express an opinion, it will be well to see that I am in the line of duty, for it is contended on the part of the defendants, that the power of judging on this subject is committed to the legislative departmentof the government alone, and that the judiciary cannot interfere. This doctrine the court can in no wise admit; the legislature in this State is not omnipotent, as was the British Parliament; it is subordinate to the constitution, and if it transcends its power, its acts are void, and it is the duty of the judiciary to declare, them so. The duty is at all times unpleasant, but no independent tribunal will hesitate to do it in clear cases. The opinion of Chancellor Kent, in his Commentaries, (2 Kent, 276) does not support the position of the learned counsel.. The author remarks that it undoubtedly must rest in the wisdom of the legislature to determine when public use requires the assumption of private property. I do not understand by this that the legislature is to be the sole judge of what is meant by public use ; but that the fact being established that private property oí' a particular character may be taken and appropriated to public purposes, it is for the wdsdom of the legislature to say when that appropriation shall be made. That the commentator did not intend to be-understood as saying that the legislature was intended to be sole judge in this case is evident; for lie admits afterwards that, if the legislature should take the property of A. and give it to B., the law would be unconstitutional and void ; and yet, who is to judge that the property thus taken from one and given to another was not intended by the legislature for public use and benefit? "Who is to declare it unconstitutional and void after they have determined its propriety. Not doubting that the court may safely sit in judgment on this matter, it only remains to inquire whether the use to which the property is to be appropriated is a public use. * * * May we not. in considering what shall be a public use and benefit look at the objects, the purposes, and the results of the undertaking? The water power about to be created will be sufficient for the erection of seventy mills and factories, and other works dependent on such power.. It will be located at the seat of government, at the head of tide water, and in a flourishing and populous district of country. *' * * Looking at this case in all its bearings, ánd believing, as I do, that great benefit will result to the community from the contemplated improvement, I am not satisfied to declare the act of incorporation, or that part • of it which is now in question, void and unconstitutional. I do not see in it such a decided and palpable violation of the constitutional right as will warrant me to put an end to this work by the strong arm of the court.

The legislature have thought proper, in their wisdom, to exercise the right of eminent domain, for an object, which they deem of public use and importance, and, although their judgment is not conclusive as to the right, it is certainly entitled to a most respectful consideration.” And the court held that the act was constitutional.

This case certainly goes far enough in upholding the right to..appropriate property, and I have abstracted liberally from it because it is one of the principal cases relied on by the respondents. It is in precise accordance with the doctrine previously laid down in this opinion, that the court will determine whether the use is public, but when an affirmative to this question is reached, then the judicial function is gone, and there is no restraint upon the legislative discretion.

Many other authorities have been examined, but it is unnecessary to make special reference to them, as they sustain throughout the views above announced. Private property is taken for public use when it is appropriated for the common use of the public at large. A stronger instance caunot be given than that of property converted into a pub* lie park. , A public park becomes the property of the pub-lie at large, and is under the control of the public authorities.; it may well be paid for by the public, as it is intended for public use. There is sufficient, then, on the face of this act to warrant us in holding that the park in question is for public use.

It is next objected, that the act is void because it violates section 14 of art. XI of the constitution. That section provides that “ the G-eneral Assembly shall not authorize any county, eity, or town to become a stockholder in, or to loan its credit to any company, association or corporation unless two-thirds of the qualified voters of such county, city or town, at a regular or special election to be held therein, shall assent thereto.” To sustain this objection, the case of the State vs. The Curators of the State University,decided by this court at its last July term, is cited,(57 Mo.,178). The facts were these: That Phelps County undertook to issue its bonds and deliver them to a corporation established for a public educational purpose for the State, in order to obtain the location of a sehool of mines, without having first obtained the consent of the people of the county. This the court held the county could not do, and Judge Napton, who delivered the opinion, said: “What was the object of the restriction on the County Courts, city and town municipalities? The object was, plainly, to prevent them from taxing the people without their consent. No loan of credit was allowed to any company, association, or corporation without the consent of the people who had to pay it. The business of the company, association or corporation is not referred to in the constitution. Whether educational, benevolent, individual or otherwise, whether public or private, the object is not considered.”

But the two cases are wholly different. They are neither parallel nor analogous. Phelps County was not authorized to establish a school of mines for the use of its own people, to own and manage it through commissioners appointed for that purpose. It was simply empowered to issue its bonds, or loan its credit, to the State University, a corporation entirely foreign to its,limits, and managed by trustees who were not appointed by it. The county got no property in exchange for its bonds, and had no voice in their negotiation, nor could it exercise auy control over the proceeds after they were sold. In the present case there is no loaning of credit, or taking stock in any company, association, or corporation. A county debt is created for property conveyed to the county, ’and the taxation is imposed to pay off and discharge that debt. Nor do we consider it objectionable that the control and management of the park is committed to a board of commissioners, instead of the County Court. The twenty-third section of the sixth article of the constitution provides, that inferior tribunals, to be known as County Courts, shall be established in each county for the transaction of all county business, but that will not preclude the State from appointing other agencies in certain cases. Three, of the commissioners are appointed by the County Court, the presiding judge of that court makes the fourth, and the three others are appointed by the City Council. Thus they all derive their powers, either directly or remotely, from the voters of the county. In principle, the board does not differ from the police board or the board of water commissioners, and it has been decided that the legislature had the undoubted constitutional right to establish these boards as a part of the local administration of municipal affairs. They are regarded as mere administrative officers or agencies for the performance of certain duties, and as such the establishment of their powers and their appointment have been held valid. (State vs. Valle, 41 Mo., 29; State vs. St. Louis County Court, 34 Mo., 546; People vs. Draper, 15 N. Y., 532; Daily vs. City of St. Paul, 7 Minn., 390.) The further point is insisted upon that the act gives no power to take lands at their value, but only at the amount of the appraisement, to be made in the manner described in-section 2, and that that section expressly requires the appraisers, in fixing the value of the land, to be guided by the assessment of 1873. I do not think that the section will bear the construction that is thus attempted to be placed upon it. The language is: “Provided, in all cases, the assessment of the county assessor for the year 1873 shall he taken as a guide in fixing the value of the property to be condemned or appraised.” I am inclined to the opinion that what the framer of the section intended was that the different pieces of property appropriated should be adjusted according to the relative value placed upon them by the assessor in that year. If it was designed that the assessment made in 1873 was to be taken as the measure or standard in fixing the value for compensation, then unquestionably this part of the section is void. Property can only be taken or appropriated upon making just compensation. What is just is a matter of inquiry, ascertainable by either appraisers or a jury upon evidence furnished in the case. No law can arbitrarily fix a value on property and tell the owner that he shall take that. That would be assuming a prerogative utterly unwarranted and would be destructive of the rights of property. But does it follow that because this part of the section is unconstitutional the whole act is invalid ? By no means. Nothing is better settled than that an act may be good in part and bad in part.

Where a clause in an act is rendered invalid on account of some constitutional prohibition, that will be stricken out or disregarded, but the other parts that are not liable to any such objection will remain good and the act will be enforced, provided enough is left to put it in operation and carry out the object had in view in its enactment. The second section provides that “the court shall, unless the parties themselves agree upon appraisers within twenty days, appoint three disinterested men to view and appraise the property sought to be condemned, or if either party requires it, a special jury of six shall be summoned to fix the value of the same. * * * The appraisers or jury shall hear testimony under oath and return their report into court within ten days after they are qualified to act. Their report shall be under oath, and'the concurrence of a majority of them, fixing the value of the property, shall be sufficient. It shall state the value, in cash, of the property, or of the interest or es.tate therein sought to be condemned, and any other fact the court may require-Either party may except to the report, in writing, filed in the Circuit Court, within ten days after it is filed, and not thereafter.”

This section is complete without the obnoxious clause. It furnishes the necessary and appropriate method for determining the value. It provides for appraisers or a jury, at the election of either party, whose duty it is to hear testimony and arrive at the actual cash value, which will furnish the criterion for just compensation. The objectionable proviso, therefore, may be entirely eliminated and the act will be good and capable of enforcement.

The last point to be examined is that the act is unconstitutional, because the grant of the proposed park land is to be made neither to a corporation nor to any recognized legal political body, nor to a trustee for either; that there is no such legal body or political entity as the people of St. Louis County. Aside from the well known doctrine that a trust never fails for the want of a trustee, that to prevent a failure a court of equity will interpose and appoint one, we do not think there is any merit in the objection. In an early .day nearly all the grants of commons made to our towns were made to the inhabitants of the towns, and yet it has always been held that these commons were the property of the towns. In Patten vs. Chapin, (6 Paige, 649) the inhabitants of an incorporated neighborhood collected a fund and with it built a school house for their use, and it was decided that upon the incorporation of the neighborhood into a village, the title to the school house vested in the corporation. The case of the Trustees of Greene Township vs. Campbell, (16 Ohio St., 11) was where lands had been conveyed and vested in the legislature of the State, and the.court held that it was the same, in legal effect, as if the title had been vested in the State eo nomine. To the same effect is Corder vs. Commissioners of Fayette County (Id., 353). There the devise was made to the county by name, when the law required that it should be made to the commissioners of the county. But the court said: “ A devise to the county is a devise to the commissioners of the county, and vests the title in them for the uses of the county. The county and the commissioners of the county are often convertible terms.” We therefore think it was immaterial whether the law provided that the title should be vested in the county or in the people of the county. They may be regarded as interchangeable or comvertible terms. After a careful and attentive consideration of all the questions that have been presented and argued in this case, we have been unable to find in the act such an infringement of any specific provision of the constitution of this State US' would authorize us to declare it void.. '

Wherefore the judgment below should be reversed and the cause remanded;

all the judges, concurring.