Turlow v. Ross

This proceeding, instituted in the county court of Gentry county, under the provisions of the act of March 18,1893, for change of a public road, by twelve freeholders of the township in which such road is located, comes here by appeal from a judgment of dismissal in the circuit court, to which the case was taken from the county court.

Two grounds are assigned in the motion of the landowners to dismiss, sustained by the circuit court. One is that only two of the commissioners appointed to assess the damages qualified as such, and hence it is claimed the proceedings are void. The other alleges that the county court had no jurisdiction, because the petitioners were attempting to establish a new road under the guise of a change of road, and the petition did not contain the necessary averments for such change. The regularity of the proceedings in other respects is unchallenged.

1. The county court, on the sixth of February, 1895, appointed, by an order of record, three disinterested freeholders possessing the qualifications required *238by law, as a board of commissioners to assess tbe damages to the land of respondents, over which the road, as changed, would be located. One of these commissioners did not act. The others qualified, and on the seventh of May, 1895, filed a report, signed by them, stating that the landowners would sustain no damages. An application of respondents to dismiss, on the ground that one of the commissioners failed to qualify or participate in the assessment, was denied by the county court. The respondents also asked that the amount of their damages “be assessed by a jury as provided by law.” This was sustained, and six freeholders were selected and impaneled in the county court, and, after hearing the evidence of both sides, by their finding declared that respondents would sustain no damages by the proposed change of road. The county court then made an order granting the change, etc., and respondents appealed to the circuit court. Here the motion 'to dismiss was renewed, and it was sustained. In this we think the court committed error.

It is true the statute (Acts 1893, p. 223, sec. 3) requires the county court to appoint three disinterested freeholders to act as a board of commissioners to assess the damages resulting to the owner, by reason of the location of a new road, or the change of a road, upon his land. The legislature, however, has laid down certain rules for the construction of statutes. Section 6570, Revised Statutes 1889, declares that “the construction of all statutes of this State shall be by the following additional rules, unless such construction be plainly repugnant to the intent of the legislature, or of the context of the same statute........ Second, words importing joint authority to three or more persons shall be construed as authority to a majority of such persons, unless otherwise declared in the law giving *239such authority.” There is nothing in the road law, under which the county court was acting, indicating an intent that all the commissioners must qualify and act. Upon the contrary, it is declared that ‘ ‘the report of said board of commissioners, when signed by a majority of them, shall be taken and considered as the report of all.” (Sec. 3, acts 1893, p. 223.) This court said in Quayle v. Railroad, 63 Mo. 465: “What is the joint authority conferred upon the three commissioners'? It is to view the land, assess the damages and make report. It is not expressed in the statute that all three shall join in the view of the land, the assessment of the damages, or in making the report, and therefore according to the rule of construction laid down by the legislature, any two of them might act, and perform all of these duties, unless such a construction would not only be repugnant, but plainly repugnant, to the intention of the legislature in requiring them to be appointed.” See, also, Moore v. Wingate, 53 Mo. 398. It is plainly apparent that the legislature intended that, if a majority of the commissioners should qualify and make the assessment, their acts should be valid.

But it is said the Constitution requires, when private property is to be taken for public use, that the “compensation shall be ascertained by a jury,.or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law.” (Sec. 21, art. II of Constitution.) Hence, it is argued, that, if the road law is construed to mean that a majority may make the assessment, when the third commissioner fails to qualify, the landowner is deprived of his constitutional right to a board of three commissioners. This overlooks the fact that the legislature need not have required the appointment of three commissioners in the first instance. The compensation must be fixed by a jury, or by a board of not less than three freeholders. *240The statute under consideration provides that upon demand of the landowner, the damages must be assessed in the county court by six freeholders. He is then- given the right of appeal to the circuit court, where he can have a trial, before a common law jury, of the amount of compensation to which he is entitled. It will be seen that if no provision had been made for . the appointment of. commissioners to make a preliminary assessment, or, if for a less number than three for that purpose, still ample opportunity is accorded in the stibsequent proceedings for the enforcement of the constitutional right of the landowner to have his “compensation ascertained by a jury or board of commissioners of not less than three freeholders.” This sufficiently meets the mandate of the Constitution. Mills on Eminent Domain [2 Ed.], sec. 91; Lewis on Eminent Domain, sec. 312; Reckner v. Warner, 22 Ohio St. 275; In re Essex Avenue, 121 Mo. 98. This court has always upheld the right of the citizen to demand a strict adherence to the requirements of the law, when it is sought to take his property for public use without his consent. This, we think, was done in the case at bar. Respondents may yet have a jury to assess their compensation.

2. The objection remains that this proceeding is not authorized by the statute. The contention of the respondents seems to be that provision is only made for a change of road in two instances. One, when the owner desires to inclose and cultivate land over which a road runs, and asks to turn the road on his own land or the land of any other person consenting thereto, under section 7812, Revised Statutes 1889, page 1817; and the other, under section 7804, when the road runs along the bank of a river or creek and the same “falls or caves in.” This, is a misconception. The statute, in terms, authorizes a change of road to be *241applied for and made in the same manner and for the same reasons that a new road may be established. Public necessity may require the change of a road fully as much as the opening of a new one. The statute is explicit upon this subject. Acts 1893, p. 222, sec. 1, 2, and 3; Zeibold v. Foster, 118 Mo. 349.

It results that the judgment of the circuit court must be reversed and the cause remanded.