CITY OF KANSAS.
(Oircuit Oourt, W. D. Mi88ou1'i, W. D.
May Term, 1883.)
CoNSTITUTIONAL LAW-COMPENSATION FOR PROPERTY TAKEN FOR PUBLIC USE·CONS'l'ITUTION OF MISSOURI OF 1875.
By the constitution of Missouri, adopted in 1875, it was eVidently intended that before property could Le taken for public use the amount of compensation to be made to the owner should be ascertained and paid, and when th18 has not been done the owner maj' rccovcr its value in any proper form of action.
At Law. Before MILLER, MCCRARY, and KREKEL, JJ. MILLER, J uatice. In the matter of Blanchard against the City of Kan. sas, in which a demuner was filed recently, we are called upon with·' out the aid of any of the state courts, certainly without the aid of the supreme court of Missouri, to construe a clause of the constitution of the state of very considerable importance to cities generally, and especially to this city of irregular surface, where such awful grades are encountered and so much change in the natural surface has to be made, and in which the authorities have shown very commendable diligence in complying with those demands. The view that we have taken of the case departs somewhat from the course of argument on the subject. I am of opinion that the constitution of Missouri of 1875 makes a much wider departure from the constitution of 1865 on this subject than counsel have suggested on either side. The clause which provides, or the principle which provides, that property shall not be taken for public use without just compensation is one which existed at the common law. It has been considered one of the laws originating in natural rights,-a jus gen· tium,-and has been embodied in the constitution of the United States, and probably in some form in the constitution of every state in the Union. It has in the states of the Union assumed various forms of expression, and in regard to the particular form of expression the states differ a good deal,-that is, there are many of them that have a marked difference in this: That while the ordinary form and the form that is found in the constitution of the United States is a dec· laration that private property shall not be taken for public use with· out just compensation, there are many of the states which add, "without compensation first paid or secured." The constitution of Missouri of 1865 adopted the more general form of expression, and did not reqnire compelli:lation to be tIrst paid or secured. I pre-
sume a majority of the constitutions of the states, and of the United States I know, do not require the compensation to be paid before the ,. property is taken. One reason for that is that it is the exercise of the power, as it is called, of eminent domain, can only be exercised by the authority of the government itself, state or national. And as it is supposed that each government which exercises that authority is responsible and will always pay the just damages, or when it confers it upon any other corporation, as upon a. city, that the city is responsible and will always pay the just damages, it was not thought advisable, in a great many of these constitutions, to insert any provision about previous payment. But after a while, when this power was conferred on railroad companies and other corporations to exercisA the poweI of eminent domain, it became the policy of some of the states thai the money should be paid in advance or secured. I have not found copies of all the constitutions here. In fact, iL the time I have had to look up the subject, I have not f<lUnd a copy of any constitution, except the last constitution of Missouri, which makes that provision. But I know very well from my reading that there are many constitutions which require that the money should be paid or secured in advance. With these remarks I will proceed to compare the two constitutions of Missouri-the one of 1865 and the one of 1875. The provision in the earlier constitution of Missouri is one taken' from the old-fashioned bill of ;rights, I think, probably, of Massachusetts. The language is "that no property ought to be taken or applied to public use without just compensation;" and there it ended, leaving the legislature to make proper provisions on the subject. Now, it seems that wl1en the constitutional convention of 1875 came to that subject, they made material changes-two material changes, which are equally obvious, and both of which are important. And one of was that they provided that the compensation should be first paid, and I take it that was the most important change in the provision in the new constitution. If we leave out the word "damage," and read it, you will see that "private property shall not be taken for public use wHhout just compensation." That is about the same as the old one. "Such compensation shall be ascertained by a jury Or board of commissioners of three freeholders, in such manner as shall be prescrihed by law, and until the same shall be paid to the owner, or into court for the owner, the property shall not be distributed, or the
proprietary rights of the owner therein divested." Leaving out the that the main purpose word "damage," then, it is perfectly of that law was that when private property should be taken for pub. lic use the money shonld be first paid, which was not the constitutional provision before. It provided a means by which it might be ascertained; and that ascertainment was by a jury, or board of commissioners, of not less than three freeholders, "in such manner as may be prescribed by law." Whether those words "may be prescribed by law" mean some future law to be enacted upon the subject, or refer to some law already in existence, it is simply It declaration that it shall be ascertained by It board of commissioners, or by a jury, according to law. I do not enter into the question of whether further legislation is necessary on this subject to provide means of ascertaining these damages, because in the present case neither party has appealed to any such law, or acted upon any such grounds. I take it that the provision in the constitution for compensation, and the mode of ascertaining it, does not-as counsel seem to imagine-refer simply to the compensation for injury to the property damaged, and the mode of ascertaining H, but it applies equally under this constitution to the value of the property taken and to the injuries inflicted on the property damaged. In both cases compensation should be first maa.e, and it must be ascertained by the mode pointed out in this constitution. In the case before us the property is injured; the property is taken, if you use that phrase; the damages were not ascertained; the damages were not paid into court; the damages were not paid to the party; no agreement was made with the party; but the city went on, as I understand the complaint, to do the work and inflict the damage, and has never taken any steps under any law, natural or divine, constitutional or unconstitutional, to make compensation. It results, then, that since the positive declaration of the constitution is that private propl.rty shall not be taken or damaged for public use without just compensation, that it is bound in some way to make that just com· pensation, and that the law shall compel it to do it. And we are all of opinion that the second clause in that constitutional provision,-there being three in that section,-that the second clause relates to the ascertainment of damages in order that it may be paid in advance. It imposes no rule of measuring the damages when it is not paid at all, and when the damages are inflicted and no proceedings are instituted to ascertain them. It follows from our
VIew, however, sInce neither party availed themselves of that provision or sought tloput it in force or did put it in foree, and the city exercised the right which the constitution and the law gave it, lio cut down the streets and injurEdhat property, it is responsible, and the other party has also the right that the law gave her to recover these damages in any proper form of action. ,The result is that the demurrer in this case is overruled.
v. HENDERSoN,Ex'r, etc.
.Uourt. D. Kentucky. .May 29, 1883.)
Where a married woman has inherited, under the laws of Mtother state, propfor whose debt she is also made liable by the laws of that erty from her state, and she afterwards being domiciled in this state is sued here upon.a note by her father there, judgment mill' be rendered against her heI'e which will be enforced by the common-law l'emedy proper·in case a valid con , tract had been made in this state.
AOAlNST HlllR ·HUI!ilAND FOR HER· DEBT.
JUDGMENT AGAINST MARRmD WOMAN.
Judgment may also be rendered against her husband, but as to him to be paid out of assets which may come intohhl bands tllerf!ajter (none having been as yet received by him) uy reason of the marriage relation.
« Wald, Julius Aroni, James Harlan, and A. E. Wilson, for plaintiff. T. L. Bayne, Barnett, Noble (f; Barnett, and Walter Evans, for defendants. BARR, J. The motions to be disposed of are the motion of defendants McCarthy and wife to arrest the judgment, and plaintiff's motion to enter judgment on the verdicts of the jury. It appears from the statement of def611dant McCarthy, made since the findings of the jury, that he and his wife were married in the city of New Orleans, and were domiciled there at the death of William Henderson, and until after she accepted the succession of hiB estate. They removed to Kentucky in 1872, and have been domieiled here ever since. McCarthy also proved that the property which his wife received from her father is real estate in the city of New Orleans, and·,tha.t he has never received any money or property from