
    The Chicago, Rock Island & Pacific Railway Company, Appellant, v. Young et al., Judges Clinton County Court.
    
    1. Roads, Proceedings to Condemn Land for. It must affirmatively appear on the face of proceedings had in a county court to condemn and take property for public road purposes, that all the facts necessary to confer jurisdiction existed before final action was taken to deprive the owner of his property.
    2. -: jurisdictional pacts. Notice of the intended application for the road, the residence of the requisite statutory number of petitioners, and the failure of the owner of the land to relinquish the right of way, are all jurisdictional facts and must appear on the face of the proceedings.
    3. Certiorari. A writ of certiorari is in the nature of a writ of error . and operates in a similar way.
    
      Appeal from, Clinton Circuit Court. — Hon. G. W. Dunn, Judge.
    Reversed and remanded.
    
      M. A. Low and T. E. Turney for appellant.
    (1) There is no pretense that an effort was made at any time to agree with appellant for a relinquishment of' the right of way. This was a jurisdictional fact which should at least have been alleged in the report of the road commissioner; and in the absence of such allegation the county court liad no jurisdiction to appoint a jury to assess the damages, nor to make the order establishing the road. Linds v. Clemens, 44 Mo. 540 ; Ells v. Railroad, 51 Mo. 200 ; United States v. Reed, 56 Mo. 565, 572; Railroad n. Campbell, 62 Mo. 585-588; Whitely v. County, 73 Mo. 30; R. S. 1879, sec. 6937; Cunningham v. Railroad, 61 Mo. 33. (2) The notice required by the statute of the application for the establishment of the road was not given. That notice had been so given-was a jurisdictional fact; and the record must show not only that the notice was given, but that it was given in the manner required by the statute. R. S. sec. 6936; Whitely n. County, 73 Mo. 30; Ells ®. Railroad, 51 Mo. 200, and cases cited. (3) There was 'no proof that the petitioners or any of them were householders and resided in Shoal township; nor was there any proof that three or any number of the petitioners were of the immediate neighborhood of the proposed road. R. S. sec. 6935. These facts are alleged in the petition, but this is not sufficient. A jurisdictional fact must be alleged and it must be proved. Mitchell v. Railroad, 82 Mo. 106; Backensloe v. Railroad, 86 Mo. 492; King v. Railroad, 90 Mo. 520. And in cases of the character of this one, the record must show that the proof was made. Ells ». Railroad, supra / Lind v. Clemens, 44 Mo. 540; Railroad v. Campbell, 62 Mo. 585; Whitely v. County, 73 Mo. 30 ; Cunningham v. Railroad, 61 Mo. 33. (4) The circuit court erred in rejecting the testimony of William Conklin. The county court, in the order appointing the jury, required them to notify all parties interested of the time and place that evidence would be heard touching the damages occasioned by the establishment of the road. The return, Ghuorsed on the notice to appellant, itself showed that the notice was not given as required by law; and the testimony would have shown that there was not simply a defective return, but that no notice was in fact given. The action of the commissioners in making an ex-parte assessment of appellant’s damages, was unauthorized both by the order appointing them and by the statute. R. S. sec. 6938.
    
      A. J. AWiouse for respondents.
    (1) The county court acquired jurisdiction of this case when proof of due legal notice was made,' and the petition was presented and publicly read. Daugherty «. Brown, 91 Mo. 26; R. S. secs. 6935, 6938. (2) The record must affirmatively show that the court has not complied with the law unless the matter is jurisdictional. Defects in the proceedings of the jury or road commissioner are not jurisdictional. Sutherland v. Holmes, 78 Mo. 402; City v. Railroad, 17 Mo. App. 105. (3) The jurisdiction of the circuit court in the case at bar was confined to an examination of such irregularities in the exercise of the jurisdiction of the county court as appear upon the face of the record and proceedings, and it could not inquire into matters Of fact, or correct any errors of fact. House x. County Court, 67 Mo. 522 ; Railroad v. Board, 64 Mo. 294; Whittelsey’s Mo. Prac. 615, and cases there cited. The court having jurisdiction and proceeding with the case regularly to final judgment, it will be presumed that proof was regularly made. Baker x. Baker, 70 Mo. 134; Freeman on Judg. secs. 53, 524.
   Sherwood, J.

By certiorari, the Chicago, Rock Island & Pacific Railway Company brought up to the circuit court certain proceedings had in the county court for opening a public road, and when the proceedings of the county court were thus brought up for revision, moved to quash them for reasons to be presently noticed. This motion was denied.

Whenever the proceedings of a court, summary in their nature, are had with the view to take or condemn the property of a citizen, it must affirmatively appear on the face of such proceedings, that all facts necessary to confer jurisdiction existed, before final action taken in the tribunal depriving the owner of his-property. Such jurisdictional requisites do not affirmatively appear in the case at bar. Aside from a mere statement to that effect in the petition ( Backenstoe v. Railroad, 86 Mo. 492; Mitchell v. Railroad, 82 Mo. 106; King v. Railroad, 90 Mo. 520), it does not appear that twelve of the petitioners are householders of the township through which the proposed road is to run, nor that three of them are of the immediate neighborhood, as provided in Revised Statutes, section 6985, nor that notice of the intended application for the road had been given by handbills, etc., twenty days, etc., as required by Revised Statutes, section 6936. The statement in the order reciting the fact of the filing of the petition, that due-legal notice of the intended application was proved, does not meet the requirements of the statute, nor cause the necessary facts to affirmatively appear. Van Wickle v. Railroad, 2 Greene, 162.

The fact of notice having been given in the mode pointed out by the statute, is as much a j nrisdictional prerequisite as is the residence of the statutory number of petitioners. If either be lacking, the jurisdiction fails, and for the obvious reason that such proceedings, being in invitum, in derogation of common law and common right, are always regarded as strictissiml juris, and receive no help from intendments or implications, and so this court has repeatedly held. Ellis v. Railroad, 51 Mo. 200, and cases cited; Jefferson County v. Cowan, 54 Mo. 234; Whitely v. Platte County, 73 Mo. 30; Zimmerman v. Snowden, 88 Mo. 218; Anderson v. Pemberton, 89 Mo. 61; Colville v. Judy, 73 Mo. 615 ; Railroad v. Campbell, 62 Mo. 585.

Again, section 6937, Revised Statutes, says : ‘ ‘ The commissioner, shall take the relinquishment of the right of way of all persons who may give such, and make report thereon. The commissioner shall also state, in his report, the names of all persons who have relinquished the right of way or who have failed to relinquish the right of way, giving the names of - both and the reasons therefor.” It is quite apparent from the provisions of this section, that it contemplates a conference between the commissioner and the owners of the right of way along the proposed route; for how else could he report to the county court what persons had relinquished the right of way, and what persons had failed to do so, “ giving the names of both and the reasons therefor,” or how could he take the relinquishments of persons willing to make them1? It does not appear that the commissioner, in this case, discharged his duty in this particular. And it is only upon failure of a land-owner or land-owners to relinquish, that the county court has any authority to appoint three freeholders to view the premises and assess the damages. R. S., sec. 6938. The failure of the owner to relinquish thus becomes a jurisdictional fact, and the rule laid down in Ellis case, supra, and subsequent cases, applies. As was aptly said in a previous case in this court, when treating of the subject now in hand: “The power to take property for public use, without the consent of the owner, is in derogation of the rights of the citizen, and can only be justified on the grounds of absolute necessity, * * '* and when exercised, the power conferring the right must be strictly adhered to and complied with. It is no answer to say that certain things in a given enactment, conferring the authority, do not appear to be essential. Everything is essential which the law has-said should be done, before this high prerogative right can be carried out and enforced.” Leslie v. St. Louis, 47 Mo. 474.

But furthermore, the writ of certiorari is in the nature of a writ of error, and operates in a similar way. Farmington v. County Commissioners, 112 Mass. 206; 3 Bouv. Inst., 556. By it, errors which, might not be fatal in a collateral proceeding, may be the basis of redress.

The judgment should be reversed and the cause remanded.

Ray, J., absent; the other judges concur.  