author: KENNISIT, J. VALLIANT, C. J. GRAVES, J.

text:
    THE STATE ex rel. GEORGE S. GRAHAM et al. v. THOMAS J. SEEHORN, Judge.
    In Banc,
    December 10, 1912.
    1. PROHIBITION: Condemnation: Right of Appeal: Jurisdiction. A holding in the condemnation proceeding that relators have the right of an appeal from the municipal court of Kansas City to the circuit court would not tend to show a want of jurisdiction or excess of jurisdiction in the circuit judge to heár the proceeding on appeal, and therefore would afford no ground for relief by prohibition against such circuit judge who is about to try said cause de novo after such appeal from the municipal court.
    2. MUNICIPAL COURT: Condemnation Proceedings: Constitutional Court. Under the Constitution, Kansas City had authority in 1908 to frame and adopt a charter providing for a municipal court vested with power to hear and determine proceedings for the condemnation of lands for public streets and assessing the damages and benefits, such proceedings being matters of local municipal concern. Sec. 22, Art. 6 of the Constitution, conferring . on circuit courts exclusive original jurisdiction in all civil cases “not otherwise provided for,” did not inhibit the vesting of such power in the municipal court, since the Enabling Act of 1887 specifically gave to said city “exclusive control over its public highways, streets,” etc.

      Held, by VAULT ANT, C. J., with whom EERRISS, J., concurs, that the power of Kansas City by its charter to vest original jurisdiction in its municipal court in condemnation cases having been acquiesced in for more than twenty years prior to the adoption of the present charter and property rights to a great extent having been acquired under that assumption, the existence of such power, under the Constitution, should, now be conceded.

      Held, by GRAVES, J., dissenting, with whom WOODSON, J., concurs, that the right of eminent domain is a sovereign right, and can • be exercised only by the State or by permission or grant of authority from the State, and the State has' not granted to Kansas City authority to create its own court for the exercise of that right, hut has vested the circuit courts with exclusive jurisdiction in such matters; and the attempt to create a municipal court vested with powers of condemnation being unconstitutional, the Constitution should he upheld, notwithstanding imaginary disastrous results that may follow the enforcement of its commandments.
    3. PROHIBITION: Jurisdiction: Condemnation: Appeal from .Municipal Court. So .long as a court is proceeding within the sphere of its judicial authority it is not amenable to the writ of prohibition. Where the facts alleged in the returrrand admitted by the demurrer thereto show that respondent circuit judge had ‘ obtained jurisdiction over the persons of relators, and it is determined that the municipal court was vested with original jurisdiction of the condemnation proceeding in controversy, and that the circuit court was possessed of the cause by a proper appeal therefrom, it will be held that said circuit court was clothed with power to determine the validity of the ordinance bn which the condemnation rests, and to determine whether the parties in interest were properly before the court in the manner prescribed by the charter; and the Supreme Court will not, by its writ of prohibition, on the theory that the ordinance and the judgments and proceedings in the municipal court were invalid for. noncompliance with the charter, prohibit the circuit court from trying the case cLe novo and determining such alleged invalidity.
    Prohibition.
    'WRIT DENIED.

      Douglass & Watson, Edward J. White, and Ball & Byland for relators.
    (1) If the municipal court had no jurisdiction either of the original proceedings under ordinance 3209 or of the' supplemental proceedings (so.-called) ■under ordinance 7539, then the circuit court on appeal would have no jurisdiction. (2) The charter of Kansas City could not confer original civil jurisdiction on the municipal court and so much of Secs. 1 and 2, Art. 6 and Sec. 10, Art. 4, of the Charter of 1908 as purports to do so, is violative of Secs. 1, 22, 34, 36 and 37, Art. 6 of the Constitution and Sec. 15 of the Schedule of the Constitution, conferring civil jurisdiction exclusively on circuit courts except as otherwise provided and of Sec. 16, Art. 9 of said Constitution, authorizing Kansas City to frame and adopt a charter, and is inconsistent with the Constitution and laws of the State. R. S. 1909', Secs. 8579, 8663, 6050; State v. Fry, 4 Mo. 190; Abbott on Mun. Corp., Sec. 584; Spencer v. Sulley Co., 4 Dak. 474; Industrial School v. County, 40 “Wis. 326; Dillon on Mun. Corp. (5 Ed.), Secs. 744, 745, 632; In re Cloherty, 27 Pac. 1064; People v. Howell, 5 Colo. 412; Lafon v. Dufracq, 9 La. Ann. 350; Ottawa v. Carey, 108 U. S. 121. (3) .The municipal court was wholly without authority under the terms of the charter to “hear and determine the cause” or to impanel a jury therein by reason of the failure to publish the court order of notice of the proceedings — a .publication “necessary to the validity thereof.” Charter 1908, Sec. .2, p. 255; Shaffner v. St. Louis, 31 Mo. 264; State ex rel. v. Grill, 84 Mo. 248; Kansas City v. Mulkey, 76 Mo. 247; St. Louis v. Brenckwirth, 204 Mo. 305. (4) Sec. 23, Art. 6, of the charter, concerning supplemental proceedings to cure “any error, defect or omission” in the original proceedings, has no application to the case at bar. Here there was nothing to supplement. (5) The final decree in the injunction case of Union Pacific Railroad Co. et al. v. Flynn et ah, wherein it was adjudged that the municipal court had no jurisdiction of the persons, or properties of the relators and that the assessments were null and void, was and is res adjibdicata and precludes the city from attempting to validate them by a supplemental proceeding. McDaniel v. Carroll, 19 Ill. 226; Nelson v. Roundtree, 23 Wis. 367. (6) Original ordinance 3209 is void on its face in that it requires that “the amount allowed for private property taken shall be wholly raised by special assessments made against the property described” in the benefit district, contrary to the provisions of the charter (Sec.. 3, Art. 6), which expressly directs that there shall first be assessed against the city “the amount of benefit to the city and public generally, inclusive of any benefit to any property of the city,” and the balance, if any, against the several tracts of private property in benefit district. No citizen was bound to pay any attention to an ordinance in invitwn, containing such a provision as did the one in question. (7) Ordinance 7539, purporting' to supplement the proceedings under 3209 is void on its face, and does not comply with Sec. 23, Art. 6 of the charter governing supplemental proceedings: (a) Because said section 23 was not intended to apply to a case where the original proceedings as here, were, and were finally adjudged to be, wholly void for lack of jurisdiction, (b) Because this ordinance is vague, indefinite and uncertain in its terms and does not comply with said section 23, which requires the proceeding to be “to properly assess against any piece or parcel of private property against which an assessment was in the first proceeding erroneously made or omitted to be made, the proper amount,” etc., and further that “such supplemental proceedings shall be instituted and conducted as to the particular piece or pieces of private property sought to be acquired or assessed,” etc.

      A. F. Evans, John G. Park, Hunt G. Moore, John G. Schaich, Jay M. Let and A. F. Smith for respondent.
    (1) The municipal courts of Kansas City have jurisdiction in a proceeding for the condemnation of land for street purposes. That jurisdiction was conferred by the Legislature when Kansas- City was given its early charters by special acts. Secs. 6, 8, 12, Art. 5, Constitution 1820; Sec. 1. Art. 5, Constitution 1820, as amended in 1822; Laws 1851, p. 88;-Laws 1852, p. 244; Secs'. 1,13, 21, 23, Art. 6, Constitution 1865; Laws 1867, p. 18; Laws 1870, p. 327; Laws 1872, p. 397; Laws 1875, p. 196; Secs. 1, 22, Art. 6, Constitution 1875. That jurisdiction was continued in the freeholders’ charters adopted under Sec. 16, Art. 9 of the Constitution of 1875. Sec. 1, Art. 7, Charter of 1889; Sec. 1, Art. 6, Charter of 1908. The changing of the title of the court from “Mayor’s Court” to “Municipal Court” did not change the jurisdiction or authority of the court. Worthington v. London Co., 164 N. Y. 81. The clause in Sec. 22, Art. 6 of the Constitution mating the circuit court have exclusive jurisdiction over all civil cases “not otherwise provided 'for” does not mean “otherwise provided for in the Constitution.” Jurisdiction conferred by a charter provision would he a jurisdiction “otherwise provided for” within the meaning of said section 22. State ex inf. v. Lund, 167 Mo. 241. The clause in Sec. 22, Art. 6 of the Constitution, permitting the. conference of such jurisdiction upon inferior tribunals “as is or may be provided by law” does not mean that that law must be enacted by the General Assembly. A charter provision is a “law.” Barber Co. v. French, 158 Mo. 547; Corrigan v. Kansas City, 211 Mo. 627; State ex rel. v. Field, 99 Mo. 352; Kansas City v. Oil Co., 140 Mo. 458; Kansas City v. Bacon, 147 Mo. 270; Meier v. St. Louis, 180 Mo. 409; Morrow v. Kansas City, 186 Mo. 684; Brunn v. Kansas City, 216 Mo. 108. (2) Defect's in the original condemnation proceeding were cured by a supplemental proceeding, authorized by the charter. Sec. 23, ‘Art. 6, Charter 1908. A judgment in condemnation proceeding is an entirety. St. Louis v. Nelson, 169 Mo. 461. (3) There has been no conclusive adjudication barring a hearing of the proceeding in question. (4) Ordinance 3209 was not void. (5) Ordinance 7539 was not void. (6) The ascertainment of damages for property taken and the assessment of benefits conferred, when united in one proceeding, are not separable issues permitting separate judgments. An appeal is allowable from supplemental proceedings instituted under Sec. 23 of Art. 6 of tbe charter. Kirksville v. Munyon, 114 Mo. App. 567; Morewood v. Hollister, 6 N. T. 309; O ’Dea v. Washington, 3 Neb. 118; Irwin v. Bank, 6 Oh. St. 81; Hare v. Rice, 142 Pa. St. 608. (7) The fact that the ordinance in the supplemental proceeding provided for the correction of benefits only, without referring to a reascertainment of damages, would not prevent a reascertainment of damages on appeal to the circuit court, because on appeal the cause must be tried de novo.

   KENNISIT, J.

This is an original proceeding by prohibition. The relators are owners of real estate in a proposed benefit district in a certain condemnation proceeding in Kansas City. Respondent is judge ,of Division No. 3 of the circuit court of Jackson county, in which division the said condemnation proceeding is now pending. The purpose of this suit is tfiat respondent, as judge of said court, may be prohibited by the writ of this court from' further, holding cognizance of said condemnation proceeding. A preliminary rule in prohibition was granted upon the filing of the petition. In due time respondent filed his return thereto, and relators filed a demurrer to the return. Upon the issues of law thus presented the case stands before us for decision.

There is a companion case to the case in hand, entitled State ex rel. Tuller et al. v. Seehorn, now under submission in this court, post, p. 568. It was brought at the same time, arises out of the same litigation nisi and is against the same respondent, but the relators therein are the owners of the property sought to be taken for public use in said condemnation proceedings, and they ask this court to issue its writ of prohibition against the respondent npon grounds different from and antagonistic to those relied npon by relators in this case.

The facts admitted by the pleadings herein, and as gathered from the petition and return, are substantially as follows:

In June, 1909, ordinance 3209 was enacted by the common council of Kansas City, for the purpose of widening and improving Sixth street between Broadway and Bluff streets, and to that end providing for the condemnation of the necessary adjacent property; also creating a benefit district and fixing the limits thereof, in which, for benefits received, the property should be subject to the payment of special tax assessments to meet the costs of the proposed improvement. The municipal court, after a plat of the property to be taken had been delivered to the clerk thereof, made an order, directed to “all persons whom it may concern,” appointing a day and place for impaneling a jury to ascertain the compensation for the property to be taken and to make assessments to pay the same, as required by Sec. 2 of Art. 6 of the charter of said city. A copy of the order was published in the proper newspaper, and the parties owning real estate proposed to be taken were duly served with a copy of said order. In accordance with the order and notice a jury was impaneled, and after hearing the evidence and viewing the property, it returned a verdict fixing and allowing the compensation for the property to be taken, assessing against the city the amount of the benefits to the city and to the public, and assessing against the several lots and parcels of property within the benefit district the balance of said compensation, as a special tax and assessment, according to the benefits received. The verdict was confirmed by the common council, judgment rendered thereon by the municipal court, and, no appeal having been taken therefrom, the verdict was sent to the office of the city treasurer for the collection of such 'special assessments, and more than one-half of the total amount so assessed was paid.

Some of the owners of property in the benefit district refused to pay their assessments -and brought an injunction suit against the city to' restrain and enjoin the collection of said assessments, upon the ground that the notice of the order for the impaneling of the jury by the municipal court had not been published as required by the provisions of the charter, and upon the further ground that the municipal court was without jurisdiction to proceed under ordinance 3209 and that the proceedings in said municipal court were null and void. Upon the assumption that the publication of said order was defective and the subsequent proceedings invalid, another ordinance, 6686, was introduced in the common council for the purpose of repealing ordinance 3209 and beginning the proceedings for the proposed improvement anew. Thereupon the owners of the property to be taken, and for which compensation had been allowed pursuant to ordinance 3209, and which was also proposed to be taken under ordinance 6686, brought an injunction suit against the city to restrain and enjoin the officers thereof from repealing said ordinance 3209, upon the ground that compensation had been awarded for the property so taken and that as the verdict and'judgment therefor was unappealed from, the sarae-had become a final judgment under which rights had become vested and which could not be set aside or annulled by enactment of the common council. Both injunction suits were heard before respondent at the same time and the issues were found in favor of the plaintiffs in each case. In the injunction suit brought by the property owners of the benefit district who had refused to pay their assessments (relators herein) the court in its decree, after finding that “said proceedings, verdict, confirmation thereof and judgment is, as to these plaintiffs and each, of them and as to their respective properties, null and void,” proceeded as follows: “It is therefore considered, ordered, adjudged and decreed that said verdict, judgment and proceedings, in so far as they affect or purport to affect plaintiffs or any of them or any of their said several properties, be and the same are hereby annulled and for naught held; that the several assessments against the respective' properties aforesaid of the plaintiffs and each. of them be and' the same are hereby set aside and annulled ; that defendants Kansas City. M. A. Flynn, city clerk, U. L. Weary, clerk of said municipal court, and the officers and agents of said city, be and they are each of them perpetually restrained and enjoined from making out, certifying or attesting any taxbills against the several properties of the plaintiffs or any of them under and by virtue of said assessments, and that plaintiffs have and recover of and from defendant, Kansas City, the costs herein expended and have execution therefor.” No appeal was taken from the judgment and decree in either of said injunction suits.

Sec. 23 of Art. 6 of the charter of Kansas City, under which said condemnation proceedings were being prosecuted, is as follows:

When hy reason of any error, defect or omission in any proceedings, or in the verdict or judgment therein that may he instituted under the provisions of this article, a- portion of the private property sought to he taken, or some interest therein, cannot be acquired, or an assessment is made against private property which cannot he enforced or collected, or when, hy reason of any such defect, private property in the benefit district is omitted, the city may, hy ordinance, institute, carry on and maintain supplemental proceedings to acquire the right and title to such property or interest therein intended to he taken hy the first proceeding, but which cannot on account of such defect, error or omission, he acquired thereunder, or to properly assess against any piece or parcel of private property against which an assessment was in the first proceeding erroneously made or omitted to he made, the proper amount of such private property, exclusive of the improvements thereon, is benefited hy the proposed improvement to he determined hy the verdict of the jurj in such supplemental proceedings; and the original assessments may he revived, corrected, increased or diminished as may be necessary or equitable under the provisions of this article for the original proceedings. Such supplemental proceedings shall be instituted and conducted as to the particular piece or pieces of private .property sought to be acquired or assessed in like manner and with like effect as in the original proceedings; and shall be known and described as supplemental proceedings for the purposes specified in the original ordinance; and a supplemental verdict and assessment shall be made, confirmed and copies of the original verdict certified in every particular as in the original proceedings; and the assessments as established and corrected by such supplemental verdict shall be collected by the city treasurer in the same manner and under like conditions and restrictions, powers and duties as in the case of original proceedings.

In the month of February, 1911, after the injunction against the city had been made perpetual, restraining the enforcement of the special assessments in the benefit district under ordinance 3209, the common council passed and the mayor approved ordinance 7539, which is as follows:

AN ORDINANCE.
PROVIDING FOR, AUTHORIZING AND DIRECTING THE INSTITUTION, CARRYING ON AND MAINTAINING OF SUPPLEMENTAL PROCEEDINGS TO PROPERLY ASSESS BENEFITS AGAINST CERTAIN PIECES AND PARCELS OF LAND INCLUDED WITHIN THE BENEFIT DISTRICT PRESCRIBED BY ORDINANCE NO. 3209, APPROVED OCTOBER 19, 1909.
Whereas the Common Council of Kansas City, Missouri, passed an ordinance entitled “An ordinance to open and widen Sixth street from the east line of Bluff street to the west line of Broadway,” approved July 14, 1909, which said ordinance was numbered 3209 and was duly approved October 19, 1909; and
Whereas proceedings were instituted under said ordinance in the municipal court of Kansas City to condemn the land in said ordinance described and a verdict was rendered in said municipal court; and
Whereas by reason of certain errors, defects and omissions certain assessments were made against land in the benefit district prescribed by said ordinance which cannot be enforced or collected and certain pieces of private property in the benefit district were omitted and not assessed by said verdict; and
Whereas in order to pay the total amount of damages awarded for, land taken and damaged by said condemnation it was and is necessary and required that said certain pieces and parcels of land shall be assessed if they are deemed benefited by the jury:
Now, therefore, be it ordained by the Common Council of Kansas City:
Sec. 1. That the mayor and city counselor are hereby authorized and directed to institute, carry on and maintain supplemental proceedings, to properly assess against any piece or parcel of private property within the benefit district prescribed in ordinance No. 3209, approved October 19, 1909, against which an assessment was in the first proceeding wrongfully made or which was omitted to be made the proper amount such private property, exclusive of the improvements thereon, is benefited by the proposed improvement, such amount to be determined by the verdict of a jury in such supplemental proceedings as provided by article 6 of the charter of Kansas City.
Sec. 2. Nothing in this ordinance contained shall be held to limit the scope of such supplemental proceedings but such proceedings shall be deemed to be for all purposes authorized by article 6 of the charter of Kansas City.
Sec. 3. Such • supplemental proceedings shall be begun in Division No. One of the municipal court of Kansas City and shall be known and designated as supplemental proceedings for the purposes specified in said ordinance numbered 3209.
See. 4. All ordinances or parts of ordinances in conflict with this ordinance are insofar as they conflict with this ordinance hereby repealed.

The preliminary steps having been properly taken under said ordinance 7539, an order was made by the municipal court and due notice published of the time and place fixed “for impaneling a jury to properly assess against any piece or parcel of private property within the benefit district above described, against which an assessment in the original proceedings was wrongfully made, or which assessment was omitted to be made, the proper amount such private property, exclusive of the improvements thereon, is benefited by the proposed improvement.” On the 31st day of May, 1911, the jury impaneled under said ordinance 7539, as stated by relators, “returned into said municipal court their verdict purporting to assess the sum of $168,004.57 (being the amount of compensation found by the jury in the aforesaid proceedings under ordinance. No. 3209 to be paid to the owners of property taken or damaged) against the city and the property in said benefit district, including the property of the relators; that there are over thirteen thousand lots and parcels of land within the benefit district prescribed by said ordinance No. 3209; that, the jury verdict in said so-called supplemental proceedings was in all respects precisely the same as to the amount of benefits as the verdict returned in the original proceedings.”

The verdict thus returned was duly confirmed by ordinance and judgment rendered thereon by the municipal court, as in the former proceedings. An appeal was then taken to the -circuit court of Jackson county, by the owners of the property in the benefit district whose property had been assessed with benefits in the supplemental proceedings and who had not paid the assessments theretofore made pursuant to the provisions of ordinance 3209. In the circuit court the cause was assigned to Division No. 3, over which division respondent presides. "When the trial was about to be commenced in said division, respondent announced it as his opinion that the case should be tried de novo, “as though it were a trial of proceedings under ordinance No. 3209, and that there should be ascertained before him, independent of previous proceedings, the amount of damages to be allowed for property taken or damaged, and the amount of assessments to be levied against property in the benefit district as benefits from the opening and widening of said street.” Thereupon relators gave notice of an application to this court for a writ of prohibition, and further proceedings before respondent were suspended.

Upon the foregoing facts, relators contend:

“(a) That they have the right of appeal from the municipal court after the conclusion of the so-called supplemental proceedings.
“(b) That tbe municipal court never bad any jurisdiction of tbe original proceedings under 'ordinance No. 3209, or of tbe supplemental proceedings under ordinance No. 7539; that tbe municipal court never bad any power or authority to bear and determine said cause in either proceeding, or to impanel a jury for that purpose, or to render any judgment at any time in said cause, and that all of tbe proceedings in said municipal court were null and void and without jurisdiction, and consequently tbe "circuit court on appeal is without jurisdiction, and that said proceedings should be dismissed by tbe respondent.”

It should be stated in explanation of relators’ proposition (a), which seemingly has no place in a proceeding challenging tbe jurisdiction of respondent in tbe case sought to be prohibited, that relators in tbe companion case heretofore referred to, make tbe contention that no appeal is authorized by tbe charter of Kansas City from supplemental proceedings under said section 23 of article 6. But whether that contention is well founded or not, it is obvious that the successful affirmance of the proposition that an appeal was authorized from the municipal court to the circuit court in the supplemental proceedings, under ordinance 7539, would not tend to show want of jurisdiction or excess of jurisdiction in respondent to hear the condemnation proceedings on appeal, and therefore affords no ground for relief by prohibition.

Eelators have set forth in their brief eight separate points or propositions which they learnedly argue in support of their right to the relief prayed for. In the view we take of the case we think their contentions may be disposed of under two heads, as follows: First, “The charter of Kansas City could not confer original civil jurisdiction on the municipal court, and so much of Secs. 1 and 2 of Art. 6, and Sec. 10 of Art. 4, of the Charter of 1908, as purports to do so, is violative of Secs. 1, 22, 34, 36 and 37, Art. 6, of the Constitution of Missouri, and Sec. 15 of the Schedule of the Constitution, conferring jurisdiction exclusively on circuit courts, except as otherwise provided, and of Sec. 16 of Art. 9 of said Constitution, authorizing Kansas City to frame and adopt a charter, and is inconsistent with the Constitution and laws of the State.” Second, That the proceedings and judgments of the municipal court under ordinance 3209 and also under ordinance 7539 are void for noncompliance with the charter.

I. The first proposition demanding consideration is that of the jurisdiction of the municipal court in condemnation proceedings, as provided for by Art. 6 of the charter. If that court was without jurisdiction it follows that the circuit court acquired none on appeal, and relators in such case are entitled to relief.

Art. 6 of the charter of Kansas City purports to confer jurisdiction upon the municipal court, in proceedings to condemn private property “for straighten-' ing, opening, widening, extending or altering, for public use, any street, avenue, alley,” etc., etc., and also jurisdiction in supplemental proceedings for the same purposes in case of an error or defect in original proceedings. The same article provides for an appeal in condemnation proceedings from the municipal court to the circuit court of Jackson county, where the cause shall be tried de novo. By Sec. 10 of Art. 4 of the charter the municipal court is created and its jurisdiction and powers prescribed. It is there provided that: “The municipal court and each division thereof shall have jurisdiction of all cases arising under any provision of this charter or any ordinance of the city and shall likewise exercise such jurisdiction as may be delegated to it by the general law of the State of Missouri.” Sec. 1 of Art. 6 of the Constitution of this State is as follows: £ £ The judicial power of the State, as to matters of law and equity, except as in this Constitution otherwise provided, shall he vested, in a Supreme Court, the St. Louis Court of Appeals, circuit courts, criminal courts,-probate courts, county courts and municipal corporation courts.” Sec. 16 of Art. 9 of the same instrument vests in cities of over one hundred thousand inhabitants power to adopt a charter for its own government “consistent with the Constitution and laws of this State.” In the exercise of that power, the qualified voters of Kansas City, in the year 1908, adopted the present charter, which created the municipal court and clothed it with apparent jurisdiction in condemnation proceedings in the taking of property for public use and providing for the payment of compensation therefor.

Upon the foregoing provisions of the Constitution and the charter respondent rests his jurisdiction in the case pending before him. It cannot be doubted that the framers of the charter intended to confer upon the municipal court the jurisdiction challenged in this proceeding. The charter provisions upon that subject are clear and explicit. The sole question is as to the power of the people of Kansas City to lodge such judicial authority in a municipal court. Relators do not deny that municipal courts form a part of the judicial system of this State. The Constitution expressly makes them such, but the Constitution does not prescribe the bounds of their jurisdiction; neither does it prescribe the authority under which such courts shall be established and their jurisdiction fixed,- and therein lies the root of the relators’ contention. Doubtless if the inhabitants of Kansas City had not availed themselves of the right to adopt a charter, the General Assembly of the State, as the repository of general legislative power, would have had full constitutional warrant to provide a charter for the city, to create a municipal court and to define its jurisdic - tion, even over such subjects as the relators dispute in the present proceeding. Indeed, that was the recognized source of the authoritv of this municipality in such matters prior to the adoption of the Constitution of 1875 and long’ thereafter.

Respondent maintains that the condemnation of property for public streets is purely a matter of municipal concern, and that as the Constitution, by Sec. 16 of Art. 9, conferred upon the qualified voters of the city full power and control over such matters, by the adoption of a charter and making provisions therefor, the voters may thus speak with authority equal to that of the General Assembly in the absence of such charter. It will'be observed that the power thus vested in the voters of the city is not conditionéd upon any action to be taken by the General Assembly, but is absolute and direct from the source of all governmental power, subject only to the condition that such charter shall be consistent with the Constitution and laws of the State.

That the jurisdiction thus conferred upon the municipal court is not inconsistent -with the Constitution and laws of this State, is further affirmed upon the fact that the Enabling Act, enacted by the General Assembly in the year 1887 and made applicable to Kansas City, provided that the charter adopted by the city should “constitute the entire organic law of the city and should supersede all laws then in force not otherwise governing or appertaining to cities having-one hundred thousand inhabitants or more,” and that by a further provision of said act the city is expressly given “exclusive control over its public highways, streets,” etc.

On the other hand, it is urged by relators that as the Constitution does not define the jurisdiction of “municipal corporation courts,” and that as Sec. 22 of Art. 6 thereof confers upon circuit courts “exclusive original jurisdiction in all civil cases not otherwise provided for,” the circuit court alone has jurisdiction over such civil proceedings as the condcmnation of real estate for public use. We are not favorably impressed with, this argument. Under repeated decisions of this court it is settled beyond question that the condemnation of property in municipalities, for use as public streets, is a matter pertaining to local municipal government as contradistinguished from such as belong to the domain of general State control; and further, that the procedure prescribed by the charter in such condemnation cases, “not inimical to the general scope of the policy of onr Constitution and laws,” will prevail as against provisions of the general law upon the same subject. The language last quoted was used by Lamm, J., in the casé of Brunn v. Kansas City, 216 Mo. l. c. 117, and discussing the procedure prescribed by the charter in the exercise of the right of eminent domain, it is further said: “Such special provisions may be likened to exceptions read into or grafted on the general law.” These propositions are fully supported by the following authorities: Brunn v. Kansas City, 216 Mo. 108; State ex rel. v. Telephone Co., 189 Mo. 83; Kansas City v. Bacon, 147 Mo. 259; State ex rel. v. Field, 99 Mo. 352; Kansas City v. Oil Co., 140 Mo. 458; Kansas City v. Ward, 134 Mo. 172; Kansas City ex rel. v. Searritt, 127 Mo. 642. From the foregoing it follows that as the proceedings sought to be prohibited involved a subject of purely local concern, it was within the power of the city to confer jurisdiction thereof upon the municipal court, as provided in its charter. That jurisdiction rests upon the same well-recognized basis as the jurisdiction of municipal or police courts in prosecutions for violations of city ordinances, enacted for the good order and health of the people. Proceedings under ordinances of the class last mentioned have always been held by this court to be civil cases, and therefore any argument based upon the exclusive jurisdiction of the circuit court in civil cases is equally as valid against the exercise of jurisdiction by a municipal court for the violation of any city ordinance, as in case of a proceeding to condemn real estate for a public street.

By the adoption of tbe charter creating the municipal court and conferring jurisdiction thereon in condemnation proceedings, and by authority of the Enabling Act, if such were necessary, we are of the opinion that the circuit court was deprived of exclusive original jurisdiction in such civil cases, for the reason that jurisdiction was otherwise provided for within the meaning of said Sec. 22 of Art. 6 of the Constitution.

II. The question remains as'to the invalidity of ordinances 3209 and 7539 and the judgments and proceedings of the municipal court thereunder, for noncompliance with the provisions of the charter.

We have held that the municipal court had jurisdiction of condemnation proceedings, and also that respondent, as judge of the circuit court, had jurisdiction on appeal from the • municipal court. That jurisdiction over the persons of the relators was obtained in the cause sought to be prohibited-is shown by the facts alleged in the return and admitted by the demurrer. These propositions being conceded, it fol • lows that the circuit court, being possessed of the cause on appeal from the municipal court, was clothed with judicial power to determine the validity of the ordinance or ordinances upon which the condemnation proceedings rested; to determine the question whether the parties in interest were legally before the court in the manner prescribed by the charter, as well as any other question arising in the course of the trial. Such questions did not strike at the jurisdiction of the court, but at the regularity and validity of the proceedings up to that stage, and when the respondent decided or was about to decide adversely to the contention of the relators, he was acting neither without jurisdiction no,r in excess of jurisdiction, bnt deciding such issues as arose in a cause rightfully before him and which that court alone was clothed with authority to decide. It is well-settled law that so long as a court is proceeding within the sphere of its judicial authority, it is not amenable to the writ of prohibition. [Delaney v. Police Court, 167 Mo. 667, and authorities cited: State ex rel. v. Tracy, 237 Mo. 109, and authorities cited; State ex rel. v. Shannon, 130 Mo. App. 90.]

In the Delaney case, supra (l. c. 679), this court said: “The jurisdiction of the police court to try cases for violation of municipal police regulations, leveled at disorderly conduct and drunkenness on the streets, is exclusive. Its procedure in the exercise of its jurisdiction may or may not be erroneous, but so long as it has jurisdiction, and acts within its jurisdiction, its rulings and proceedings cannot be reviewed or corrected by means of a writ of prohibition, no matter how erroneous such rulings and proceedings may be. Mere error or irregularity or mistake, be it ever so manifest, which does not amount to an excess of jurisdiction, will not be ground for a prohibition. [Lloyd on Prohibition, p. 48; Shortt on Mand. and Prohib., marg. p. 436; 19 Am. & Eng. Ency. Law (1 Ed.), p. 263.] A writ of prohibition ‘cannot b'e made to perform the functions of an appeal,,a writ of error or a certiorari, its purpose being, not to correct errors, but to prevent a usurpation of jurisdiction.’ ”

And in the Tracy case, supra, l. c. 125-, this court said: “There is no fact alleged tending to show the exercise or threatened exercise of jurisdiction in excess of his judicial power and authority, or that he has assumed or is about to assume any power other than that conferred upon him by the charter of the city and required of him by his oath of office. While so acting in the line of his duty and within the scop'é' of his judicial power as prescribed by the Charter, it • cannot be maintained, in the light of the authorities heretofore cited, that he should he restrained and prohibited by the extraordinary writ of prohibition which issues only to prevent the usurpation of judicial power.”

Under the law governing the issuance of writs of prohibition, we are of opinion that the respondent, in the matters complained of, was not guilty of usurpation of judicial authority, and that therefore the preliminary rule should be quashed and the writ denied.

It is so ordered.

Lamm and Brown, JJ., concur; Valliant, G. J., and Ferriss, J., concur in separate opinion by Valliant, G. J.; Graves and Woodson, JJ., dissent in opinion filed by Graves, J.

CONCURRING- OPINION.

VALLIANT, C. J.

If the question of jurisdiction in the municipal court of cases of this kind were one of first impression I would concur in the dissenting opinion filed by my brother Geaves. But on looking back over the cases that have been decided by this court -1 have come to the conclusion that whilst the question has not been directly decided by this court, yet cases have been here in which the question might have been raised but was not, and the subject was passed over in silence, the jurisdiction apparently acquiesced in by the parties and not questioned by the court. In its first charter adopted in 1889 by. Kansas City under Sec. 16 of Art. 9, there was created a mayor’s court upon which was conferred jurisdiction in cases of this kind and which the Charter of 1909 now confers on the municipal court. Thus for more than twenty years the city has acted on the assumption that it had authority to create such a court and confer on it such jurisdiction. In that period doubtless property rights have been acquired to a great extent and I believe it would now be unwise to declare that rights which have arisen out of the exercise of such jurisdiction by such courts cannot be upheld. For this reason I concur in the opinion of brother KeNNISH in this case.

Ferriss, J., concurs in these views.

DISSENTING- OPINION.

GRAVES, J.

I dissent from the majority opinion in this case. I shall not take time to block out my views in my own language, because they have been elegantly expressed by our Chief Justice, in a dissenting opinion, which he prepared, and which at one time was endorsed by a majority of this bench. Owing to imagined disastrous results, some of my brothers have concurred in a modified way in the present majority opinion. For myself, I prefer to stand upon the law and the State Constitution, irrespective of results. It is for the people to rewrite the Constitution and not for the courts. For the court to rewrite it in this instance only furnishes a precedent to further discard the organic law.

As expressive of my views of this case, I therefore adopt the dissenting opinion prepared by our Chief Justice YalliaNT, as follows:

“I cannot concur in the judgment denying the writ of prohibition because in my opinion the municipal court of Kansas City had no jurisdiction of this cause or of suits of this kind, although the city charter essays to confer such jurisdiction.
“Sec. 16, Art. 9, of our State Constitution says: ‘Any city having a population of more than one hundred thousand inhabitants may frame a charter for its own government, consistent with and subject to the Constitution and laws of this State.’
“That clause of the Constitution was designed to give the city power to make a charter for itself which would be beyond the power of the General Assembly to repeal or amend. But the charter so authorized is restricted by the term of the grant to be for the city’s ‘own government,’ and it must be ‘consistent with and subject to the Constitution and laws of this State.’ It is for city government, not State government, that the Constitution confers this power on the city. The words ‘consistent with and subject to the Constitution and laws of this State’ show an express "purpose to withhold from the city the power to include in its charter governmental subjects that belong to the State as distinguished from subjects of mere municipal government. A charter adopted by the city in compliance with the terms of that clause of the Constitution can be amended only by a vote of the people in the city, not by the General Assembly. There have been numerous decisions by this court, construing this clause of the Constitution as well as a somewhat similar clause relating to the city of St. Louis. I will not lengthen this opinion by reviewing those cases; they will be found in the annotations in the Revised Statutes 1909 at pages 113-115. What I have above said is, in my opinion, in conformity with those decisions.
“Kansas City under authority of Sec. 16, Art. 9, has adopted a charter, and in the charter it has created a court called the municipal court of Kansas City and has attempted to confer on that court, besides the jurisdiction that- usually belongs to a city police court, jurisdiction in suits to collect taxes, suits for the enforcement of special taxbills, proceedings for taking and damaging private property, for ascertaining damages caused by change of grade or other exercise of the power of eminent domain.
“Those are subjects which in my opinion belong to the jurisdiction of the State courts, not to the city courts.
“The municipal court of Kansas City is merely a city court. The charter (Sec. 10, Art. 4) says: ‘There is hereby created a court not of record to he known as the municipal court óf Kansas City.’ It is a court ‘not of record.’ It has no origin except the city charter. The charter provides that the judge shall he elected by the people of the city, hut it could as well, without changing the character of the court, have provided that he be appointed by the mayor. It does provide that if a vacancy occurs in the office it is to be filled by election by the common council, and until the common council elects, the mayor may appoint to fill the vacancy. The charter also declares that the judge of the municipal court shall be ex officio a justice of the peace and exercise the jurisdiction and powers conferred by law on justices of the peace.
“The right of eminent domain is a sovereign right; it can be exercised only by the State or by permission or grant of authority from the State. The State has granted to Kansas City the power of eminent domain in the matter of opening, widening and grading its streets, the taking and damaging of private property for public use; but it has not granted to the city the right to create its own'court for that purpose, and nowhere in the State except Kansas City is that right claimed. , The right to exercise the power of eminent domain is one thing, it is a right essential to the city government, therefore properly covered in the charter adopted by the city under Sec. 16 of Art. 9, ‘for its own government,’ but the court in which that right is to be enforced or litigated is quite another thing; the grant of the right does not carry with it the power to create the court, nor is such power to be implied ex necessitate because the State has already established its courts to try such cases. Sec. 22 of Art. 6 of the Constitution confers on the circuit court ‘exclusive original jurisdiction in all civil cases not otherwise provided for.’ That is a law not local in its character, but applicable to the whole State, and the term ‘not otherwise provided for’ means not otherwise provided for by a State law; until a State law otherwise provides, the charter must be ‘consistent with and subject’ to that law. In every county in the State, Jackson county not excepted, there was at the time this charter was adopted, and still is, a circuit court having jurisdiction to try causes involving rights claimed by the city under the power of eminent domain, as also suits to collect taxes, and suits on special taxbills, and therefore when the city undertook by its charter to confer jurisdiction in such matters on its municipal court it did not conform ‘to the constitutional laws of this State,’ but it undertook in effect to repeal the State law as to the exclusiveness of the jurisdiction of the State court.
“It is true, the charter says, that the municipal court shall exercise jurisdiction in such cases concurrent with the circuit court, but that does not alter the case. The question is not whether the charter could confer on the municipal court exclusive jurisdiction, but whether it could confer such jurisdiction at all. The jurisdiction attempted to be conferred is full and complete, though not exclusive. If the court is given jurisdiction to try such cases, its jurisdiction in any such case that is brought before it would not be impaired by the suggestion that the suit might have been brought in another court which has concurrent jurisdiction. In the very section of the charter, Sec. 10 of Art. 4, which attempts to confer jurisdiction in such cases on the municipal court, the jurisdiction of the circuit court also is recognized. The charter seems to proceed on the idea that because it does not repeal the State law which gives the circuit court jurisdiction, but only creates a city court giving it concurrent jurisdiction, it is ‘consistent with and subject to the Constitution and laws of this’ State. ’ The charter does not in so many words attempt tó repeal the State law which gives the circuit court jurisdiction, hut it does attempt in effect to repeal so much of the 'State law as gives that court exclusive jurisdiction.
‘ ‘ The charter undertakes to make the judge of the municipal court ex officio a justice of the peace and to confer on him all the powers and jurisdiction of a justice of the peace. The framers of the charter might just as well have said that the judge of the municipal court should he ex officio a circuit judge. A justice of the peace is as much a State officer as a circuit judge; he is an officer created by the Constitution, and his election is a matter regulated by State law.
“I have before me a volume entitled ‘Charter and Revised Ordinances of Kansas City .1909,’ which purports to he ‘printed and published by authority of Kansas City.’ It bears on its title page the names of a number of distinguished members of the bar of Kansas City who have prefaced the work with an ‘Introductory Note,’ very learned in its character, and it is so apt to the subject under discussion that I am tempted to quote from it.
“ ‘Biit it is not every power that may be essayed to be conferred on the city by such a charter that is of the same force and effect as if it were conferred by an act of the General Assembly, because the Constitution does not confer on the city the right, in framing its charter, to assume all the powers incident to its municipality, yet the Legislature may, if it should see .fit, confer on the city powers not necessary or incident to the city government. There are governmental powers the just exercise of which is essential to the happiness and well-being of the people of a particular city, yet which are not of a character essentially appertaining to the city government. Such powers the State may reserve to he exercised by itself, or it may delegate them to the city, hut until so delegated they are reserved. Nor does the Constitution confer nnlimited power on the city to regulate by its charter, all matters that are strictly local, for there are many matters local to the city, requiring governmental regulations, which are foreign to the scope of municipal government.’
‘ ‘ The point is made that under an act of the General Assembly called the Enabling Act, approved March 10, 1887 (Laws 1887, p. 42), the purpose of which act was to provide the means by which a city entitled to frame its own charter under Sec. 16 of Art. 9 could do so, it is declared that such a charter when so adopted ‘shall be and constitute the entire organic law of such city, and shall supersede all laws of this State then in force in terms governing or appertaining to cities having one hundred thousand inhabitants or more.’
“At the time of the passage of that act there was existing a general statute providing a charter for all cities having a population of more than 100,000, and the purpose of the clause in the Enabling Act just quoted was to declare that the charter adopted by the city under the terms of that act was to take the place of the charter prescribed for cities of 100,000 inhabitants by the general statute. The clause in the Enabling Act does not say that the charter so adopted ‘ shall supersede all laws of this State then in force,’ but the language is it ‘shall supersede all laws of the State then in force in terms governing or appertaining to cities having one hundred thousand inhabitants or more.’ It is only laws of the general statutes expressly designed for the government of cities of 100,000 inhabitants that the charter is to supersede.
“I refer again to the language of the ‘Introductory Note’ from which I have already quoted: ‘There are governmental powers the just exercise of which is essential to the happiness and well-being of the people of a particular city, yet which are not of a character essentially appertaining to the city government. Such power the State may reserve to be exercised by itself, or it may delegate them to the city, but until so delegated they are reserved.’ And again, it is said: ‘Nor does the Constitution confer unlimited power on the city to regulate, by its charter, all matters that are strictly local, for there are many matters local to the city, .requiring governmental regulations . which are foreign to the scope of'municipal government.’
“The creating and furnishing courts to try important lawsuits is a right of the State; it is a conspicuous feature of State sovereignty; it does- not naturally belong to a city. We have statutes conferring on police courts, mayor’s courts, etc., of certain cities jurisdiction of the character attempted to be conferred by the Kansas City charter on its municipal court, but those statutes are acts of the State, not of the city. Such jurisdiction was conferred on the mayor’s court of Kansas City u,nder the charter granted by the General Assembly in 1888, but the mayor’s court under the Charter of 1888 is not the municipal court we are now considering.
“A charter framed strictly within the authority of this clause of the Constitution cannot be repealed or amended by an act of the General Assembly, yet powers not naturally appertaining to a city government but appropriate, thereto, may be conferred on the city by an act of the General Assembly, but such an act would not be an amendment of the city charter; it would be an act delegating State power which the city otherwise did not possess. Suppose, in framing the charter now under discussion, there had been no attempt to confer such jurisdiction on the city court and the Legislature had thereafter passed an act conferring such jurisdiction on such court. If the conferring of such jurisdiction was within the scope of the authority given the city under Sec. 16 of Art. 9, then the act of the General Assembly would be an intrusion into that authority, an amendment of the charter adding something to the charter which the city might have added hut chose not to add. But the General Assembly cannot amend a charter framed within that constitutional scope, therefore, the act would he void. If such an act conld he deemed valid it could be so only on the ground that it was a power belonging to the State not within the scope of the constitutional authority conferred on the city.
“I am therefore of the opinion that the writ of prohibition should issue.”

Woodson, J., concurs with me in these views.


source: Caselaw Access Project

author: KENNISH, J.

license: Public Domain

text:
    THE STATE ex rel. BERT H. TULLER et al. v. THOMAS J. SEEHORN, Judge.
    In Banc,
    December 10, 1912.
    1. CONDEMNATION: Establishing Street: Supplemental Proceeding: Right of Appeal from Municipal Court. Under sections 6 and 23 of the charter of Kansas City, any property owner or any party interested in the property taken or damaged, in a proceeding hy the city to widen a street, is entitled to an appeal from the judgment of the municipal court, in a supplemental proceeding, to the circuit court, “in like manner and with like effect as in the original proceedings.”
    2.’-: -: -: What Property and Matters Considered. Where the ordinance for a supplemental proceeding in the matter of widening a street and the order of the municipal court purport to be for the sole purpose of making assessments as to property “against which an assessment was in the original proceeding wrongfully made or which was omitted to he made,” the jury in the municipal court in the supplemental proceedings are without authority to include in their verdict assessments of benefits and damages upon property properly included in the first verdict. As only those persons whose property was omitted in the original proceedings are notified by such ordinance to . appear in the supplemental proceedings, the scope of the verdict of the jury could not extend beyond such persons and their property.

      3. -:-:-:-: Vacating Original Proceedings: Interlocutory Judgment: Appeal. The verdict and judgment in the original proceedings were valid as to those who appeared and accepted them, and do not become interlocutory merely because supplemental proceedings are necessary as to other property, nor are they to be entirely vacated because an appeal is taken in the supplemental proceedings to the circuit court. The original proceedings, unappealed from, become res adjudicata and not subject to trial de novo in the supplemental proceedings or on appeal from a judgment therein to the circuit court.
    4. -: -: -: Vacating Original Proceedings: Before Payment of Assessments. The charter providing that the common council may repeal the ordinance for widening a street “at any time before any of the parties assessed with benefits shall have paid the amount so assessed” and that “in such .event the judgment for compensation and benefits shall be void,” the original proceedings cannot be vacated as to parties who have paid their assessments thereunder before the supplemental proceedings were begun, nor can the judgment as to them in the original proceedings be vacated or treated as interlocutory, since, under the well recognized principle of construction, the .right of the city to avoid proceedings and judgment before the payment of any benefits given by that language of the charter, excludes such a right after such benefits have been paid.
    5. -: -: -: --: On Trial De Novo. Since the charter provides that no assessment made in the original proceeding in the municipal court in the matter of widening the street “shall be affected or interfered with for the reason that any other assessment made in the same proceeding may be invalid in whole or in part,” the city is given power, by a supplemental proceeding, to subject only property omitted by mistake or illegally assessed to its proportional part of the costs of the improvement, and the assessment as to other property as to which the assessment was regular may be enforced, and cannot be tried de novo on an appeal to the circuit court from a judgment in the municipal court in the supplemental proceeding, there being no appeal from the judgment in the original proceeding.
    6.-: -: -: -: -: Property Taken and Damages Paid. Another reason for holding that the original judgment in the municipal court in the original proceedings, unappealed from, is- not vacated by the supplemental proceeding, and that the assessment of damages as to the property taken is not triable de novo in the circuit court upon an appeal from the judgment in the supplemental proceedings by the owners of. property omitted or illegally assessed, is that the charter provides that, when recommended by the hoard of public works, the city may pay the damages awarded for the property taken and have possession thereof before the assessments for benefits are collected, and that, such assessments, when collected, are credited to a fund to reimburse the city. On an appeal from the judgment in the supplemental proceeding, because of a defect as to some of the property assessed with benefits, the circuit court would not take up for ascertainment de novo of compensation for the property taken by the city, for the owners would have received the amount awarded them as damages, and the city would own and be possessed of the property, and neither such owners nor the city would have any further interest in the proceeding.
    7.-: -: -: -: -: Balancing Damages and Benefits. The fact that a condemnation proceeding is an entirety, and that the damages and benefits must balance, is not a sufficient reason for vacating the judgment of the municipal court as to damages and benefits settled by it and acquiesced in, or for a trial de novo as to such matters in the circuit court on an appeal to it from a judgment in the supplemental proceeding.
    8. -: Necessary Parties: Property Owners in District. Property owners in the benefit district whose property is not taken but which will be charged with its share of the damages to be paid for the property taken for the street, are not necessary parties to the issue of the value of the property to be taken for the street; nor is it a denial of due process of law to deny to them a day in court to aid in preventing an unduly high valuation of the property to be taken, whose value in the end must be assessed against their property. The necessary parties are the city as plaintiff and the owners of the property to be taken as defendants; though, as a matter of grace, the owners of other property in the benefit district may he permitted to aid in preventing a too high valuation.
    9. -: Prohibition: Widening Street: Appeal: Trial De Novo. The writ of prohibition is available to keep a trial court within the limits of its powers in a particular matter. Where judgment was rendered in the municipal court in the original proceedings to widen a street for damages for the property taken, and no appeal • was taken from that judgment, and thereafter an ordinance was passed for a supplemental proceeding to cure defects in the original proceeding, and an appeal was taken from the judgment in the supplemental proceeding to the circuit court, the writ of prohibition is available to prevent the circuit court from trying de novo the question of damages for tile property taken and the amount of benefits assessed against certain properties in the district and paid, and all other things settled by the judgment in the original proceeding and acquiesced in.
    Prohibition.
    Writ allowed.

      G. 8. McLane, W. G. Culbertson and R. W. Grimm for relators.
    (1) The charter of Kansas City does not provide for an appeal in a supplemental proceeding begun in the municipal court of Kansas City from that court to the circuit court, and the respondent has no jurisdiction over the supplemental proceeding over which he has assumed jurisdiction. Sec. 23, Art. 6, Charter; Sec. 6, Art. 6, Charter; 1 Bouvier’s Law Dictionary, 149; Wiscaret v. D’Auchy, 3 Dallas (TJ. S.), 327; Al-dridge v. Spears, 101 Mo. 406; Owens v. Matthews, 226 Mo. 78; Drainage District v. Eailroad, 216’ Mo. 700; Wilson v. Township, 23 Mo. 416; State ex rel. v. Bland, 189 Mo. 208; State v. Thayer, 158 Mo. 37; State v. Clipper, 142 Mo. 474; State v. Carr, 142 Mo. 607; State v. Cornelius, 143 Mo. 179 ; State v. Van Brunt, 147 Mo. 20; State v. Beagles, 174 Mo. 624; State v. Eozelle, 174 Mo. 632. (2) The respondent has no jurisdiction to award damages for land taken for a street because the ordinance under which he is assuming to act does not ask to have such damages awarded. Tarkio v. Clark, 186 Mo. 297; St. Louis v. Brinckwirth, 204 Mo. 280; Munday v. Vail, 34 N. J. L. 422; Corwithe v. G-riffing, 21 Barb. (N. Y.) 14; Hope v. Blair, 10b Mo. 93; Stark v. Kirchgraber, 186 Mo. 633; King v. Chase, 15 N. H. 16; Eeynolds v. Stockton, 140 U. S. 269; TJnfried v. Heherer, 63 Ind. 72; McEadclen v. Eoss, 108 Ind. 517; 23 Cyc. 818; Waldron v. Harvey, 54 W. Va. 613; Newman v. Bullock, 23 Colo. 222; Sache v. Wallace, 101 Minn. 172; Charles v. White, 214 Mo. 208; Sec. 23, Art. 6, Charter. (3) Prohibition will lie if the supplemental proceeding cannot be taken to the circuit court by an appeal, and will also lie, if there is a right of appeal, to prevent the respondent from exercising any jurisdiction over matters not brought before the court by the supplemental ordinance. State ex rel. v. Bright, 224 Mo. 535; State ex rel. v. Williams, 221 Mo. 246, 266; State ex rel. v. Reynolds, 209 Mo. 191; State ex rel. v. Port, 210 Mo. 525; State ex rel. v. Bradley, 193 Mo. 46; State ex rel. y. Sale, 188- Mo. 493; State ex rel. v. Port, 178 Mo. 518.
    For respondent’s brief,
    see under State ex rel. v. Seehorn, ante, p. 541.
   KENNISH, J.

Relators filed their petition in this court praying the issuance of a writ of prohibition against the respondent as judge of Division No. 3 of the circuit court of Jackson county; The cause sought to be prohibited is a condemnation proceeding now pending in said Division No. 3, in which the property of relators is proposed to be taken for public use in widening Sixth street, between Broadway and Bluff streets, in Kansas City. A preliminary writ was issued upon the filing of the petition, and in due time respondent filed his return. Relators filed a demurrer to the return, and upon the issues of law thus raised the case was argued and submitted for decision.

The case of State ex rel. Graham et al. v. Seehorn, respondent, decided at the present term of this court and reported at page 541 of this report, is a companion case and almost identical in its facts with the facts pleaded and admitted in this case. A full statement of the facts will be found in the Graham case, and it is not deemed necessary to repeat them at length herein.

Briefly, the important facts necessary to an understanding of this case are the following:

A condemnation proceeding was instituted by ordinance 3209, passed by the common council of Kansas City, in which the property of the relators was proposed to be taken for the widening of a public street, and a benefit district created for the purpose of providing the necessary compensation to be paid fo.r the property so taken, by making the several tracts and parcels of property therein subject to tax assessments for special benefits received by reason of the proposed improvement. The proceedings regularly progressed until, under the provisions of the charter, an order was required to be made by the municipal court, giving notice of the pendency of the proceedings, and of the impaneling of a jury, at the time and place named, to fix the compensation for the property to be taken and to assess benefits against the property within the benefit district. The order was duly made and published in the proper newspaper and a copy thereof served upon each of the owners of the property to be taken. Personal service of the order was not required upon the owners of the property within the benefit district.

In compliance with the order and the provisions of the charter, the jury returned their verdict, in which compensation for the property condemned was awarded in the. total sum of over $168,000. The city was assessed with its proportional part of the benefits received, and each tract of property in the benefit district was also assessed its proportional part, according to the benefits received. The verdict was confirmed by the council and judgment thereon rendered by the municipal court. No appeal having been taken within the time allowed, a copy of the verdict was delivered to the city treasurer, and more than half of the benefits assessed were paid before any question was raised as to the Validity of the proceedings. It wa.s then discovered that the order of the municipal court for the impaneling of the jury was not published as required by the charter and that by reason of such defect, the collection of the unpaid assessments could not be enforced. An injunction suit, brought by the property owners who refused to pay their assessments, was tried with the result that the municipal officers were enjoined from enforcing the collection of such assessments. Thereupon an ordinance was introduced in the common council for the purpose of repealing the original ordinance under which the proceedings had thus far been conducted, with a view of beginning new proceedings for the proposed improvement. Relators herein, owners of the property proposed to be taken, brought an injunction suit to enjoin the passage of said ordinance, upon the ground that a final judgment had been rendered, fixing the damages for the property to be taken, which judgment was unappealed from and under which rights had become vested. This suit was tried and the injunction was granted as prayed for.

Sec. 23 of Art. 6 of the charter of said city provides that the city may carry on and maintain supplemental proceedings to properly assess any property in the benefit district “against which an assessment was in the first proceeding erroneously made or omitted to be made,” and that, “such supplemental proceedings shall be instituted and conducted as to the particular piece or pieces of private property sought to be included or assessed, in like manner and with like effect ás in the original proceedings, and shall be known and described as supplemental proceedings for the purposes specified in the original ordinance.” Pursuant to the provisions of said section 23, ordinance 7539 was introduced in the common council for the purpose of levying assessments of benefits against property within the benefit district, as fixed by the original ordinance, and “against which an assessment was in the first proceeding erroneously made or which was omitted to be made.” Due notice was given, a jury impaneled and a verdict returned to the municipal court. This verdict purported to assess the total amount of compensation as found by the jury in the original proceedings to he paid to the owners of the property to be taken or damaged, and also assessed benefits against all of the tracts or parcels of land in the benefit district, including as well the tracts and parcels the assessments upon which, under the original proceedings, had been paid to the city treasurer, as the tracts and parcels upon which payment of the assessments had been refused. The verdict was confirmed by the council and judgment rendered thereon by the municipal court. Within the time allowed an appeal was taken to the circuit court of Jackson county and the cause regularly assigned to Division No. 3, presided over by respondent. In the circuit court the relators filed a plea to the jurisdiction, challenging the jurisdiction of the court to proceed .against relators, upon a number of grounds therein stated. The plea to the jurisdiction was overruled and the cause called for hearing. Respondent gave it as his opinion that the cause would then be tried de novo, both as to compensation for property taken and as to the assessment of benefits upon all of the property within the benefit district, as though the appeal was from the proceedings under the original ordinance. Upon the foregoing intimation of the court, relators gave notice that a ■writ of prohibition against respondent would be applied for in this court, and thereupon further proceedings were suspended.

Relators base their right to a writ of prohibition against respondent upon the three grounds following:

“(1) The charter of Kansas City does not provide for an appeal in a supplemental proceeding begun in the municipal court of Kansas City from that court to the circuit court and the respondent has no jurisdiction over the supplemental proceéding over which-he has assumed jurisdiction.
“ (2) The respondent lias no jurisdiction to award damages for land taken for a street, because the ordinance under which, he is assuming to act does not ask to have such damages awarded.
‘ ‘ (3) Prohibition will lie if the supplemental proceeding cannot be taken to the circuit court by appeal, and will also lie, if there is a .right of appeal, to prevent the respondent from exercising any jurisdiction over matters not brought before the court by supplemental ordinance.”

I. The first proposition urged by relators is that no appeal is allowed by the charter from the verdict and judgment in a'supplemental proceeding in the municipal court to the circuit court, and that as the case against which prohibition is asked is such an alleged appeal, respondent is without jurisdiction to proceed therein.

The general provision of the charter, section 6 of article 6, as to the right to an appeal, is: “In case the city, or any person affected by the proceedings, either as the owner thereof or interested in any of the property taken or damaged, or as the owner of, or interested in any of the property assessed, shall feel aggrieved by the verdict of the jury, such party so ag": grieved may, within twenty days from the time the verdict of the jury is confirmed, appeal to the circuit court of Jackson county, Missouri, at Kansas City.” Section 23 of article 6, authorizing supplemental pro: eeedings, provides that: “Such supplemental proceedings shall be instituted and conducted as to the particular piece o.r pieces of private property sought to be acquired or assessed, in like manner and with like effect as in the original proceedings, and shall be known and described as supplemental proceedings for the purposes specified in the original ordinance.” The language thus used as to the procedure in supplemental proceedings, when considered in the light of the large number of tracts of real estate and of owners thereof to be affected, and the correspondingly increased liability to mistake, leaves little doubt that the intention of the framers of the charter was to provide a remedy by which such mistakes could be corrected, while permitting the original proceedings, so far as regular, to remain in force and effect, and that in supplemental proceedings brought for that purpose the property owners should be entitled to all the rights accorded to those whose property was assessed or taken in the original proceedings. Any other construction is unreasonable and would render such provisions of the charter invalid, upon the ground that it would •deny to some owners of property rights conferred upon others of the same class. In construing a statute fhe rule is: “The intent is the vital part, the essence of the law, and the primary rule of construction is to ascertain and give effect to the intent.” [2 Lewis’s Sutherland on Statutory Construction (2 Ed.), 363.] Applying this rule to the clause of the charter that supplemental proceedings shall be “instituted and conducted ... in like manner and with like effect as in the original proceedings,” we are of the opinion that the same course of procedure should be followed in both cases, so far as practicable, and that the right of' appeal was intended to be open to any party in interest .in a supplemental proceeding.

II. Eelators ’ second contention is as follows: ‘£ The respondent has no jurisdiction to award damages for land taken for a street, because the ordinance under which he is assuming to act does not ask to have such damages awarded.” ' The foregoing too narrowly states respondent’s position as to the effect of the appeal from the verdict in the municipal court. That position, as set forth in the return, is: “That said ■appeal so taken operates to cárry the entire proceed-) ings to the circuit court for rehearing and trial de novo; that when said cause has reached the circuit court of Jackson county, Missouri, in said manner and method, it was there as though it had been appealed: (by a party interested) from the first proceeding had in the municipal court under ordinance 3209, and there should be ascertained de novo the amount of damages to be allowed for the property taken and the amount of assessments to be levied against property in the benefit district as benefits from the opening and widening of said street.”

Relators maintain that although the publication of the order of the municipal court under ordinance 3209 was defective, yet the court had jurisdiction of the subject-matter and of all property owners, both of the benefit district and of the property to be condemned, who appeared and participated in the proceedings ; that as to them, when the verdict and judgment in the municipal court was unappealed from, was delivered to the city treasurer for collection and a large amount of the assessments paid, it became res adjudi-cada, the subject-matter of which respondent had no> power to readjudicate in a supplemental proceeding-brought to assess other property omitted by mistake in the first. Both relators and respondent stand committed to the theory that the original proceeding was regular and binding upon the parties appearing thereto, up to some point in the progress thereof in the municipal court; otherwise, there would be no basis for a supplemental proceeding, nor for the injunction against the .city when it sought to begin the proceedings anew.

In elucidation of respondent’s contention upon this point, we quote from his brief as follows:

“It is undoubtedly true that if an error had been committed in the proceedings in the municipal court, and that error had been discovered in the proceedings in that court, a supplemental proceeding in that court would have been necessary to cure the defect thus discovered, and the judgment of the municipal court would be affected only in so far as it was necessary to correct the same in curing the defect. Thus, for example, if proceedings had been regular in the municipal court with reference to ascertainment of damages for property taken, and irregular with reference to the assessments of benefits against' property in the benefit district, the supplemental proceeding would have been directed solely to the correction of the error in the assessing of benefits. And the judgment in the original proceeding would be cured by the correction of that judgment in the supplemental proceeding. The original judgment in such a case would, in a sense, be an interlocutory judgment, to be perfected and ripened into a final judgment, upon the conclusion of the supplemental proceeding. If there had been no appeal, either from the judgment in the original proceeding or from the judgment in the supplemental proceeding, in the mayor’s court, the corrected judgment in that court would be final and would be one entire judgment. A condemnation proceeding under the Kansas City charter is ‘one proceeding, not many; one judgment and not several.’ ”

The position of the respondent, as shown by the above excerpt, is that if an appeal had not been taken in the supplemental proceedings, then the verdict in the original proceedings should be corrected by the verdict in the supplemental proceedings, so as to include all property affected, and then, as corrected, to be delivered to the city treasurer, or in case of an appeal, to be transferred .to the circuit court, where the entire case would be reopened for trial de novo. This view is not in accord with the course pursued by the city in the municipal court, for, as shown by the record, the jury in the supplemental proceedings assessed all of the property in the benefit district and also allowed compensation for all of the property to be taken, and this, notwithstanding the fact that the ordinance and the order of the municipal court purported to he for the sole purpose of making assessments as to property “against which an assessment was in the original proceeding wrongfully made or which was omitted to he made.” It seems obvious that the jury in the supplemental proceeding would have no authority to include in their verdict the estimate of damages and benefits as found by the former jury, in regard to property not included in the supplemental proceedings, for, as only those whose property was omitted in the original proceedings were notified to appear in the supplemental proceedings, the scope of the verdict could not extend beyond such persons and their property. We are satisfied- that the jury in the supplemental proceedings were without authority to include in their verdict assessments of benefits and damages upon property properly included in the first verdict.

If the verdict in the original proceedings was valid as to those who appeared and who accepted it, why should it become “interlocutory” merely because supplemental proceedings were necessary as to other property, and be entirely vacated because an appeal was taken in such supplemental proceedings? We are of the opinion that the original proceedings, when un-appealed from, became res adjudicata, and not subject to trial ele novo in the supplemental proceedings, and for the following reasons:

(a) The charter makes no provision for vacating the original proceedings or treating them as interlocutory in case of supplemental proceedings. On the contrary, it is expressly provided that the common council may repeal the ordinance for the proposed improvement “at any time before any of the.parties assessed with benefits shall have paid the amount so assessed . . . and in such event the judgment for compensation and benefits shall be void.” Under a well recognized principle of construction, the right of the city to avoid the proceedings and judgment before the payment of any benefits, excludes such a right after benefits have been paid.

(b) It is provided by Sec. 4 of Art. 6 of the charter that “no assessment shall be affected or interfered with for the reason that any other assessment or assessments made in the same proceeding may be invalid in whole or in part.” This provision would preclude, as a valid defense to the enforcement of the assessment, the fact that other property benefited was not legally assessed. If the city can enforce the collection of assessments in such cases, it must be for the reason that the judgment is final and not merely interlocutory, and if final as to the city it is also final as to the property owner. The .reason underlying this provision of the charter is apparent, namely, that as the city is given power to subject property omitted by mistake to its proportional part of the cost of the improvement, by a supplemental proceeding, there is no reason why the assessment of other property should not be paid if, as to it, the assessment was regular.

(c) By section 8 of article 6 it is provided that when recommended by the board of public works, the city may pay the damages awarded for the property taken and have possession thereof before the assessments for benefits are collected. In such case the assessments, when collected, are credited to a fund to reimburse the city. If after the city had thus acquired the property, a defect should be discovered in the proceedings as to some of the property assessed with benefits, and there was a refusal to pay for that reason, as was done in this case, would a supplemental proceeding to remedy such defect, and an appeal therefrom to the circuit court, take up the entire case for trial de novo, including the ascertainment of compensation for the property taken? Clearly it would not, for the owners would have received the amount awarded as damages, either in the municipal court or on appeal in the circuit court, and would have no further interest in the proceedings; and, besides, the city conducting the condemnation proceedings would itself own and be possessed of the property taken.

(d) By Sec. 5 of Art. 6 of the charter it is provided that if the property to be taken is owned by an incorporated company, such company may file in the municipal court a petition demanding a trial by a common law jury. This petition must be filed before the jury is impaneled, and the entire case, without further action in the municipal court, must then be transferred to the circuit court. If supplemental proceedings should be made necessary'because, of a defect in the taking of property 'belonging to such a company and a petition as above should he filed in the municipal court, where, in such case, would the supplemental proceeding, as stated by respondent, begin to “ride with the original proceeding and accompany it through its course?” If at the stage in which the petition is so filed, then- it would be before the municipal court acquired jurisdiction of those property owners who were not legally served, but voluntarily appeared.

Many other illustrations could doubtless be given from the several provisions of the charter, to show the unsoundness of the construction that an appeal to the circuit court in a supplemental proceeding necessitates a retrial of the entire case intended to be included in the original proceeding.

We shall now consider the main objections urged by respondent in opposition to the construction of the charter as herein adopted.

It is contended that a condemnation proceeding is an entirety — that there is the compensation to be allowed on the one hand and the assessments of benefits on the other, the benefits to correspond exactly in amount with the compensation, and that such result could not be secured if the compensation'and benefits were not determined by the same jury. There are two sufficient answers to that contention. First: As only' the property not legally assessed in the original proceeding and the owners thereof are included within the provisions of the ordinance authorizing the supplemental proceeding, .and’ such owners only are notified of the impaneling of the jury in the municipal court, it cannot be maintained that the jury so impaneled in the supplemental proceediug is clothed with authority to balance damages and benefits, when in so doing it would necessarily require an exercise of authority over persons and property not in court. Second: The charter recognizes that conditions may arise in which the assessments may exceed or may not-■equal the compensation allowed, by providing for a reduction of assessments in the one case (section 4, article 6) and for paying out of the city treasury the deficiency, by reason of a failure to collect assessments, in the other (section 13, article 6).

It is also urged that the charter contemplates “that the property owners in the benefit district shall have their day in court on the question of the amount of the allowance to be made for the property taken and damaged.” It is plausibly argued in support of the foregoing that as the property owners of the benefit district and the city must pay the damages awarded for property taken, they should have their day in court as to the amount of damages for which their property shall become charged.

In the exercise of the right of eminent domain in the taking of private property, as in the case in hand, the necessary parties are the city as the plaintiff, on the one side, and the property owner as the defendant, on the other. And while it would be entirely proper as a matter of grace to permit the owner of property in the proposed benefit district to aid the city in preventing an unduly high valuation of the property condemned, yet such owner would have no standing in court as a necessary party. [St. Louis v. Ranken, 96 Mo. 497; St. Louis v. Brinckwirth, 204 Mo. 280; St. Louis v. Calhoun, 222 Mo. 44; Pleadwell et al. v. Glass Co., 151 Mo. App. 51; Kansas City v. Smart, 128 Mo. 272; 1 Page & Jones on Taxation by Assessment, 213; Goodrich v. Detroit, 184 U. S. 432.]

In the case of Kansas City v. Smart, supra, a. proceeding under charter provisions similar to those involved in this case, in answer to questions raiséd by owners of property in the benefit district as to a denial of the rights of owners of property to be taken, this court, l. c. 292, said: “No person is interested in the compensation to be awarded these incorporated, companies, except the city and the companies.”

The same subject is discussed in the case of Goodrich v. Detroit, supra. The contention of the owners; of the property to be assessed, and the answer thereto, are stated by the court (l. c. 437) as follows:

“The argument of the plaintiffs is that the owners of the property liable to be assessed for the benefits are just as much interested in the question as to» the necessity of making the improvement and the amount of compensation as are the owners of land to be taken for such improvement, and the same reasons for notice apply in the one case as in the other. . . .
“The law in this court is too well settled to be now disturbed, that the interest of neighboring property owners, who may possibly thereafter be assessed' for the benefit to their property accruing from opening a street, is too remote and indeterminate to require notice to them of the taking of lands for such improvement in which they have no direct interest. The position of plaintiffs in this particulaar would require a readjustment of the entire proceedings, and a determination of the property incidentally benefited, before any proceeding's are taken for the condemnation of the land directly taken or damaged by such improvement. It might be argued upon the same lines that, ■whenever the city contemplated a public improvement of any description, personal notice should be given to the taxpayers, since all such are interested in such improvements and are liable to have their taxes increased thereby. It might easily happen that a whole district or ward of a particular city would be incidentally benefited by a proposed improvement, as for instance, n public school, yet to require personal notice to be .given to all the taxpayers of such ward would be an intolerable burden. Hence, it has been held by this ■court that it is only those whose property is proposed to be taken for a public improvement that due process of law requires shall have prior notice.”

The foregoing authorities fully answer respondent’s complaint as to the right of the property owners in the benefit district to a hearing on the question of the compensation to be allowed for property taken, and make further discussion unnecessary.

in. The question remains: Are relators entitled to relief by prohibition?

It is the recognized law of prohibition that the writ will lie to prevent the exercise of judicial power in a ease where there is a want of jurisdiction in the court to exercise any judicial authority, or wjiere the court is acting in excess of its jurisdiction in a case rightfully before it. [State ex rel. v. Tracy, 237 Mo. 109, and authorities cited; State ex rel. v. Fort, 210 Mo. 512, and authorities cited; State ex rel. v. Bradley, 193 Mo. 33; State ex rel. v. Sale, 188 Mo. 493; State ex rel. v. Fort, 178 Mo. 518.]

In State ex rel. v. Fort, 210 Mo. l. c. 525, this court stated the law as follows:

“It cannot be doubted that (subject to a judicial ■discretion to be exercised in issuing all discretionary writs) the writ of prohibition may go to confine a court within the limits of its jurisdiction whether such court has no jurisdiction at all or is exercising powers in excess of its rightful jurisdiction. So much, is elementary. The writ may go whenever judicial functions are assumed, not rightfully belonging to the person or court assuming them. Generally speaking, it is available to keep a court within the limits of its powers in any particular matter, as well as to prevent the exercise of jurisdiction in a cause not given to it by law. [State ex rel. v. Foster, Judge, 187 Mo. 590; State ex rel. v. Elkin et al., County Judges, 130 Mo. 90; State ex rel. v. Eby, Judge, 170 Mo. 497; State ex rel. v. Bradley, Judge, 193 Mo. 33; State ex rel. v. Fort, Judge, 178 Mo. 518.]”

We have held that neither the municipal court in the supplemental proceedings, nor the circuit court on appeal, had jurisdiction over relators’ property. As relators limited their appearance in the circuit court specially for the purpose of challenging the court’s-jurisdiction, there was a want of jurisdiction, both as to the subject-matter and the persons, and as respondent as judge of said court was about to exercise judicial power in a matter in which the court was without jurisdiction, relators have shown themselves entitled! to the relief prayed for. .

It follows ‘that the preliminary rule should be made absolute. It is so ordered.

Valliant, C. J., Lammr Ferriss' and Brown, JJ., concur; Graves, J.,. concurs in the result; Woodson, J., not sitting.