Jockheck v. Board of Commissioners

The opinion of the court was delivered by HortoN, C. J.:

Section 1, chapter 110, Laws of 1889, provides

“That when the board of county commissioners of any *786 county in this state cannot, by purchase or otherwise, obtain a suitable site for a courthouse, jail, or other county building, or obtain additional ground necessary for the protection of any courthouse or other county building, at a reasonable or satisfactory price, said board of county commissioners may apply to the judge of the district court of the district in which the county is situated, asking for the condemnation of such site, or additional ground to such site, describing the same.” (Gen. Stat. of 1889, ¶¶ 1639-1642.)

On May 11, 1894, the county commissioners of Shawnee county notified, in writing, Carl Jockheck and Helena Schafer, the plaintiffs, “that in the erection of a new courthouse it would be necessary for the county to obtain title to lots 127, 129 and 131 on Van Burén street, in the city of Topeka, as additional ground upon which to erect the same,” and requested “that they submit to the board a proposition, in writing, stating what price they would convey the same to the county in fee absolute.” On May 11,1894, the plaintiffs informed the county commissioners, in writing, that they would accept for the property $16,500. At a meeting of the county commissioners on May 22, 1894, it was determined that the price demanded for the lots “ was unreasonable and unsatisfactory.” After the county commissioners could not obtain, by purchase or otherwise, the lots belonging to the plaintiffs as a part of the site for the courthouse, proceedings were had under the provisions of the statute for their condemnation. (Laws of 1889, ch. 110; Gen. Stat. of 1889, ¶¶ 1639-1642.) On the 6th of June, 1894,'the amount of the award made by the appraisers was deposited with the county treasurer for the owners of the lots. The county commissioners then attempted to take possession of the lots, and this action was instituted on the 11th day of June, 1894, to prevent them from taking possession or in any way interfering with the plaintiffs’ use and occupancy of the same.

I. It appears from the record that the plaintiffs, within 10 days from the filing of the report of the appraisers, appealed from the award, as permitted by the provisions of the *787 statute. This appeal was taken after the plaintiffs had knowledge of all of the proceedings of the county commissioners in condemning the lots. The appeal enabled the plaintiffs merely to litigate the question as to the amount of damages which they should recover, and nothing else. It did not and could not disturb the condemnation of the lots. ( Railroad Co. v. Martin, 29 Kas. 750 .) After the appeal was perfected, the plaintiffs, before commencing this action, dismissed the same. It is doubtful whether the plaintiffs, having fully recognized, all of the proceedings of condemnation by their appeal to determine the amount of damages for the taking of the lots, can now be heard to question such proceedings. This, however, we need not decide. If, after having chosen to appeal, they had continued to pursue that remedy, it is clear they could not have instituted this action. (Reisner v. Strong, 24 Kas. 410 .) Clearly, all irregularities, if any, in the proceedings of the condemnation have been waived. The only important question for our consideration is, whether the county commissioners had authority under the statute to condemn the lots as a site for the courthouse, or as additional ground to such site.

II. It is clearly apparent from the record that the county commissioners could not obtain the lots by purchase or otherwise at a reasonable or satisfactory price. The plaintiffs demanded for the same $16,500. The appraisers allowed $9,000. The appeal from the award of the appraisers having been dismissed, it must be assumed that the award allowed full compensation for the lots. The price, therefore, demanded by the plaintiffs was not only excessive, but extortionate. If the statue authorizes, as we think it does, the condemnation of any lots for a site or a part of a site for a courthouse, then, upon the record before us, proper proceedings were taken by the county commissioners for the condemnation of the lots in dispute.

III. It is insisted that the statute does not authorize the condemnation of any ground for a part of a site, unless the *788 additional ground is necessary for the protection of the courthouse. It is urged that

“The statute places a limitation to condemn additional ground. Having given the power to condemn a site, it then defines when and under what circumstances additional ground can be condemned, and that excludes the condemnation of additional ground for any other purpose.”

It appears that prior to September, 1893, the county of Shawnee was the owner of lots 133, 135, 137, 139, 141, and 143, on the northwest corner of Fifth and Van Burén streets, opposite the county jail, and that the lots, with additional ground, were a suitable site for the courthouse. On the 20th of September, 1893, the county commissioners, having under consideration the advisability of submitting a proposition to the voters of Shawnee county to build a new courthouse, ordered, for the information of the public, plans to be made and printed for distribution throughout the county, with estimates for the cost, of a courthouse, to be constructed upon the northwest corner of Fifth street and Van Burén street, on the lots owned by the county, together with additional ground adjoining thereto, to be obtained, if necessary, through condemnation proceedings. On the 3d of October, 1893, the board deter ¿lined that three lots, or 75 feet, fronting on Van Burén street, adjoining the lots owned by the county, were necessary, in connection with the other lots, for a suitable site for the courthouse. These lots, so fronting on Van Burén street, were the lots, 127, 129, and 131, referred to in the petition. Subsequently, upon application made to the judge of the district court of Shawnee county, three disinterested freeholders were appointed to appraise and condemn these lots as the site, or as a part of the site, for the courthouse.

The statute authorizing the condemnation of ground for a suitable site for a courthouse is ample authority to condemn ground for a part of a site. The greater includes the less. The statute not only gives authority to condemn a suitable site for a courthouse, but also adds that additional ground necessary for the protection of a courthouse may be con *789 demned. Evidently the statute intended that, after a site had been selected, if a courthouse was erected or was being erected, and additional ground was necessary for the protection thereof which could not be obtained by purchase or otherwise at a reasonable and satisfactory price, then the additional ground could be condemned. In this case, the county owned several lots, which were not of sufficient extent for a suitable site for a courthouse. Other lots or ground were needed to make the site suitable. Because the county owns a part of a site which, with additional ground, may become a suitable site, it is not thereby prevented from obtaining, under proceedings of condemnation, other lots or ground to complete the site. Such a construction of the statute would necessarily defeat its purpose in some cases.

IV. It is next insisted that the lots in dispute constitute the homestead of the plaintiffs, being occupied by them as a residence, and, therefore, that they are exempt from being taken or condemned under the provisions of said chapter 110. Judge Cooley defines the power of eminent domain as “the rightful authority which exists in every sovereignty to control and regulate those rights of a public nature which pertain to its citizens in common, and to appropriate and control individual property for the public benefit, as the public safety, necessity, convenience or welfare may demand.” Waples says: “The right which belongs to the society or to the sovereign, of disposing, in case of necessity, and for the public safety, of all the wealth contained in the state, is called the eminent domain.” (Proc. in Rem, ¶ 242.) Lewis says, “that eminent domain is not, of the nature of any estate or any interest in property, reserved or otherwise acquired, but simply a power to appropriate individual property as the public necessities require, and which pertains to sovereignty as a necessary, constant and inextinguishable attribute.” (Em. Dom., ed. of 1888, p. 9, § 3.)

The state has been in existence over 30 years, and during all of that time the power of eminent domain has been exercised over homesteads in the laying out of highways and locating *790 railroads. The right to take a homestead under the power of eminent domain has never before been seriously questioned in the courts. As this power is an incident of sovereignty, and, by all the decisions, its existence “is indispensable and incontestable” in every state, it cannot be possible that it was destroyed by the constitution, unless there is an explicit provision prohibiting its exercise. No such provision exists in the fundamental law. Section 9 of article 15, ordaining that a homestead shall be exempt from a forced sale under any process of law, except for taxes, purchase money or improvements thereon, does not, in our opinion, have application. Said section does not destroy or limit this power. In this state a homestead may consist of 160 acres of farming land, or of one acre within the limits of an incorporated town or city; and, if homesteads cannot be appropriated for public use against the consent of the owners, then within the improved and thickly-settled portions of the state the power of eminent domain would have little or no operation. The laying out and construction of public highways and railroads would almost cease, unless excessive or extortionate prices were paid for rights-of-way. In Railroad Co. v. Anderson, 42 Kas. 297 , the writer of this said:

“In my opinion, condemnation proceedings may be commenced and carried on against the owner of the homestead. The power of the state to appropriate the property is unquestioned, but the right of the owner to be paid for it is secured by the constitution. The power of the state is subject to no restrictions but that of making compensation.”

~V. Further, it is insisted that the legislature has no power to pass an act authorizing the taking of private property for a courthouse site.

“The necessity, expediency or propriety of exercising the power of eminent domain, and the extent and manner of its exercise, are questions of general public policy, and belong to the legislative department of the government.” (Lewis, Em. Dom., §162.)

The legislature, in providing for the condemnation of pri *791 vate property, must determine in the first instance whether the use for which it is to be condemned is a public one. But this determination is not final. Whether a particular use is public or not is a question for the judiciary.

“But property taken for public buildings of all kinds, such as courthouses, jails, public schools, markets, almshouses, and the like, is taken for public use. The right has been questioned in some decisions, but never denied in any decided case.” (Lewis, Em. Dom., §174; Cooley, Const. Lim., 6th ed., ch. 15, p. 655.)

In this particular case, whether the requisite necessity existed to authorize the taking of the plaintiffs’ lots was determined by the commiss'.oners of Shawnee county and by the judge of the district court of that county, when he passed upon the application presented to him for the appointment of appraisers to make the condemnation. Subsequently, in this action, the district court of Shawnee county reexamined the proceedings for the condemnation, and, in refusing the injunction prayed for, affirmed that the requisite necessity existed for the taking of the lots. Under all of these circumstances, this court will not interfere by declaring that no such necessity existed for this compulsory mode to procure or complete the site for the courthouse.

VI. finally, it is urged that chapter 110 is unconstitutional, because it is alleged that it contains two subjects which are not expressed in the title. This is not tenable. The condemnation of sites for county buildings and additional ground necessary for the protection of such buildings is germane and connected with the same subject.

The judgment of the district court will be affirmed.

All the Justices concurring.