Damp v. Town of Dane

29 Wis. 419

• Court: Wisconsin Supreme Court
• Decided: January 15, 1872
• Status: Published

Opinion

LyoN, J.

On the 13th day of March, 1869, the board of supervisors of the county of Dane made an order laying out a public highway in said county, on and near the line between the towns of Dane and "Vienna, and upon and over certain lands in the former town belonging to the plaintiff, and awarded the plaintiff damages therefor in the sum of fifty-two dollars. The board also decided and ordered that the town of Dane should pay such damages.

The complaint sets out all of the proceedings pertaining to the laying out of such highway, and if such proceedings are correctly stated therein, it shows that the highway was laid out in strict accordance with the requirements of the statutes in that behalf.

The plaintiff being dissatisfied with the sum awarded him for his damages, applied to a justice of the peace of an adjoining town, within the time prescribed therefor by law, for a jury to assess and appraise such damages, due notice of which application was served upon the town of Dane; and such proceedings were thereupon had, that a jury was selected, summoned and sworn, and said jury assessed and appraised the plaintiff’s damages, by reason of the laying out of such highway on his lands, at four hundred dollars. The award of the jury was filed in due time in the offices of the clerk of the board of supervisors and of the town clerk of the town of Dane. Two other persons, to whom damages were awarded by reason of the laying of the same highway, to be paid by the town of Vienna, joined with the plaintiff in the application for such jury, and the same jury also assessed their damages. All of the proceedings upon such re-appraisal of damages seem to have been conducted in accordance with the statutes on that subject.

At the time appointed in the notice of the application for a jury, Mr. Steele, who was then the chairman of the board of supervisors of the town of Dane, appeared before the justice named in such notice, and struck five names from the jury list, containing fifteen names, which had been made by such justice. Mr. Steele also suggested to- the justice the day upon which the precept for the jury should be made returnable, and the justice accordingly made it returnable on such day. It does not appear that he made any objection on that occasion to the validity or regularity of any of the proceedings relating to the laying out of the highway, or the assessment of the damages caused thereby.

Tbe plaintiff presented bis claim for tbe damages awarded to bim bj tbe jury and tbe costs taxed by tbe justice, to tbe town' board of tbe town of Dane, and demanded that said board should audit tbe same ; but tbe board refused to audit, or pay, or to provide for tbe payment of sucb claim or any portion of it; and thereupon be brought this action to recover tbe same.

Tbe original answer of tbe defendant admits that plaintiff is tbe owner of tbe land described in tbe complaint; and also admits tbe making, filing and recording of tbe order of March 18, 1869, purporting to lay out tbe highway in question, tbe presentment of tbe plaintiff’s claim for audit, and the refusal-of tbe town board to audit tbe same, as stated in tbe complaint Except as so admitted, the answer denies each and every allegation of tbe complaint.

Tbe defendant afterwards, by leave of court, filed a supple-' mental answer, alleging in substance that, after tbe service of tbe original answer, to wit: on tbe 7th day of February, 1871, tbe board of supervisors of Dane county, upon due and regular proceedings, made an order wholly vacating and discontinuing tbe said highway, and vacating, reversing and setting aside sucb order of March 13th, 1869; and alleging further that sucb highway “ was never opened or worked, nor was any land ever taken from tbe plaintiff, nor any fences removed or any injury to bis said property done, by reason of said order of tbe county board of supervisors dated March 13th, 1869, or of any of the matters in tbe complaint alleged.”

Tbe plaintiff demurred to sucb supplemental answer “for insufficiency, in so far as it is a supplemental answer, in not stating facts1 sufficient to constitute a defense.” Tbe circuit court sustained tbe demurrer.

Tbe action was tried by tbe court (a jury having been waived), and tbe plaintiff recovered judgment for tbe amount of bis claim, with interest from tbe date of tbe assessment by tbe jury, and costs of suit.

From sucb judgment tbe defendant has appealed to this court.

Tbe petition for tbe highway, upon which the county board of supervisors acted in making the order of March 13th, 1869, purports to be signed by sixteen resident freeholders of the town of Dane. The plaintiff, in the first instance, did not offer the petition or any evidence of the fact that the petitioners were what they purport to be. It is claimed on behalf of the defendant, that there is no presumption that these petitioners were resident freeholders of that town, and that the burden was upon the plaintiff to prove that' they were such. But we think otherwise. Sec. 59 of chap. 19 of the Revised Statutes provides as follows -: The order laying out, altering or discontinuing any highway, or a copy of the record thereof duly certified by the town clerk, shall be received in all courts and places as competent evidence of the facts therein contained, and shall be prima fade evidence of the regularity of all theproceed-ings prior to the making of such order.” It is true that the chapter in which this section is found does not confer upon the county board of supervisors power to lay out and establish highways. That power is conferred by the Laws of 1863, chap. 133, as amended by the Laws of 1866, chap. 41, and the Laws of 1868, chap. 51. But chap. 19 of the Revised Statutes conferred upon the supervisors of two adjoining towns power to lay out a highway on the line between such towns. (See. 67.) Had the highway in question been laid, out by the supervisors of the towns of Dane and Vienna under this law, there can be no doubt but that the order laying out the same would have been prima facie evidence that the petitioners were resident freeholders of the towns of Dane and Vienna respectively. More than that, it would have been prima facie evidence that a petition for the highway was duly presented to the supervisors, as well as that it was signed by the requisite number of resident freeholders of each town. Such is the plain provision of sec. 59, -above quoted. There can he no good reason given why the statute should not be held to apply to an order laying out a highway of the same character, by other officers, although the power to lay out the same was conferred upon, such other officers by a subsequent law.

When, therefore, the order of March 13th, 1869, was read in evidence, it proved prima facie that fifteen resident freeholders from each of the towns of Dane and Vienna had duly petitioned the county board of supervisors to lay out and establish such highway. The defense was really conducted upon this theory, and all of the testimony introduced on behalf of the defendant related to the qualifications of the petitioners from the town of Dane, or a portion of them, for the purpose of showing that the petition was not signed by the requisite number of qualified persons from that town.

Before proceeding to examine the testimony on this point, it is important to ascertain the qualifications of a petitioner for this highway. The power to lay out such highway could only be exercised “ upon petition of not less than thirty resident freeholders, and not less than fifteen from each town through or into which, or along and near to the line of which, it is proposed to lay out such highway,” ete. Laws of 1863, chap. 138, sec. 2, as amended by Laws of 1868, chap. 51, sec. 2.' That is to say, before the board could lawfully lay out the highway it was essential that the same should be petitioned for by fifteen resident freeholders from the town of Dane, and a like number, having the same qualifications, from the town of Vienna.

But some controversy has arisen as to what constitutes a “ resident freeholder ” of the town of Dane. Obviously, a person within that description must be, 1st. A resident of that town; and 2d. He must own a freehold interest in lands situated therein. If the theory of this statute is that a freeholder is the better able to judge of the necessity for laying out a proposed highway than a person who is not a freeholder •— that, in some mysterious manner, the fortunate owner of real estate, is, by reason of such ownership, elevated to an intellectual plane which is entirely unattainable by the less fortunate landless individual — it might well be held to be quite immaterial wb.eth.er the land of the resident petitioner was located in the town where he resided or in some other town, state or county. Of course the statute is based on no such preposterous theory. But the principle of the law and its evident intent is, that the highway shall not be laid out without the advice and sanction of the requisite number of residents of the proper town, who, by reason of their property interests in such town, and their liability to be taxed to pay the resulting damages, would not be likely to petition for the highway unless it was needed by the public. The legislature -has seen fit to require that such property interest must be freehold estate; and unless it is held that such estate must be in lands situated within the town where the petitioners reside, an important object sought to be attained by the statute would be defeated.

It may be further remarked that the provisions of the law concerning the laying out, etc., of highways by the supervisors of towns are substantially the same in respect to the qualifications of petitioners therefor. R. S., chap. 19, sec. 58. Yet it is believed to have always been the universal understanding of the people, bar and bench of the state, that a person is not a qualified petitioner under the law unless he holds a freehold interest in lands situated in the town wherein he resides.

We now come to the consideration of the evidence in regard to the qualifications of the petitioners for the highway in question. It has been stated that the petition purports to be signed by sixteen resident freeholders of the town of Dane. The evidence is quite satisfactory that they all resided in that town when they signed the petition. But the evidence is conclusive that neither C. A. Martin nor S. H. Benjamin, two of the sixteen petitioners, then had a freehold estate in any lands situated in said town. There were, therefore, but fourteen qualified petitioners for the highway from that town. It is well settled that the petition of fifteen resident freeholders of the town of Dane was essential' to give the county board of supervisors power to lay out the highway. Without such petition the board bad no jurisdiction whatever in the premises. A deficiency of but one in the required number of qualified petitioners, is as fatal to the validity of the proceedings, as would be the absence of any petition. The order of March 13th, 1869, is therefore null and void, because the board of supervisors had no legal power or authority to make it, and no property of the plaintiff or of any other person was thereby taken for public use.

From the views above expressed it follows logically that this action cannot be maintained, unless (as the counsel for the plaintiff has very earnestly and ably contended) one of the following propositions is true:

. I. That the town of Dane cannot be heard to object to the validity of the proceedings which it is claimed resulted in the laying out of the highway, or to deny that the land of the plaintiff has been taken for public use ; but that the plaintiff alone is entitled to make such objection, or to deny that his land was lawfully taken.

II. That, by appearing before the justice by its chairman of the board of supervisors, when the jury was selected, participating in such selection, and failing then to object that the order of March 13, 1869, was void, the' town waived the objection, and is estopped from now asserting the invalidity of such order.

The argument in support of the first of the propositions seems to be this: The taking of the plaintiff’s land is the exercise by the state, through an appropriate agency, of the right of eminent domain, and the act of the board of supervisors “within the scope of their duties and powers, was the act of the state,” binding the state and every constituent part of it, of which the town of Dane is one. The town is in the same position as though its own board of supervisors, having lawful authority, had laid out the highway; and in such case, the town could not be heard to allege that the petitioners were not freeholders. Such is the argument. But it is difficult to appreciate its force, when it .is remembered that the county board of supervisors did not act “ witbin tbe scope of tbeir duties and powers,” in making- the- order of- March 13, l-869j and that the right of eminent domain has not been exercised; An exercise of that right is very different from an unsuccessful- attempt to exercise it. When an attempt is made to condemn private property for public use,, and fails, we - confess ourselves entirely-unable to-find any satisfactory reason why the- county or town, which would have been liable to pay therefor, had the attempt succeeded, should be estopped to deny the taking of the property.

If the town or county is thus estopped, the constitutional provision relating to this subject should read in this wise: “ The property of no person shall be taken for public use without just compensation therefor; and-every attempt to take private property for public use shall be- deemed a taking thereof within the meaning of this section.”

The learned counsel have cited three- authorities in support' of this proposition. These are Higgins v. Chicago, 18 Ill., 276; County of Peoria v. Harvey, id., 364; and The Auditor v. Crise, 20 Ark., 540. We will briefly examine those cases.

In Higgins v. Chicago, the common council of the city of Chicago had ordered a street-to be extended through the lands of the plaintiff, and appointed commissioners to assess the damages, who performed that duty and reported their assessment to the council; and the council thereupon accepted and confirmed such report; issued a warrant for the collection-of the amounts assessed to pay sueh damages; and ordered the street to be opened. On application for a mandamus to compel the city to proceed to collect and pay over the same, it was held that the city was bound by its own confirmation, and could not be heard, to allege any supposed irregularities in the proceedings, as a reason why the mandamus should not issue.

Peoria County v. Harvey, was an appeal from an assessment of damages to plaintiff’s land, caused by laying out a state road across such land, pursuant to a special act of the legislature. The proceedings were resisted, on the supposition that a provision of tbe revised statutes, which conferred certain powers and discretion npon the county authorities in respect to highways, was applicable to such state road. The court held that this provision of the revised statutes was not applicable; that the special act established the road as soon as it was located and reported by the commissioners charged with that duty; and that nothing thereafter remained for the county to do but to pay the damages and open the road.

In both of these cases it satisfactorily appears that the right of eminent domain was lawfully exercised, and that the property of the claimants had been actually taken for public use.

The case of Auditor v. Crise, simply holds that, where the land of Crise had been taken by the state for levee purposes, and an inquest of damages taken before a sheriff’s jury, and such inquest showed on its face that Crise was the owner of the land, such proceedings amount to an adjudication of the question of ownership, and cannot be impeached by the state in a collateral proceeding. Hence it was held that the auditor could not go back of that, adjudication when the court was asked to compel him to pay Crise his damages, and defeat the application by showing that Crise was not the owner of the land. See also Crise v. The Auditor, 17 Ark., 572. This decision is an application of the very familiar rule that the judgment of a court of competent jurisdiction, when the same comes in question collaterally, as to all matters adjudicated in the action, is binding upon parties and privies and cannot be impeached by them.

These cases do not sustain the proposition under consideration.

III. We pass to the second proposition. The question raised by it is, whether the town is estopped to allege the invalidity of the order of* March 13, 1869, by reason of its failure to take the objection thereto before the justice, when the jurors to appraise the plaintiff’s damages were selected ?

Two elements are involved in the jurisdiction of all judicial or quasi judicial tribunals. These are, first, jurisdiction of the subject matter of tbe-action or proceeding; and, second, jurisdiction of tbe parties thereto. Tbe rules of law relating to these elements respectively are essentially different. If the tribunal has not jurisdiction of the subject matter, its proceedings are absolutely void in the broadest sense of the term. As a general rule, no act or consent of the parties can, in such a case, confer jurisdiction. The want of jurisdiction over the parties to the action or proceeding also renders the proceedings void, but not perhaps in so broad a sense. A party may da or omit to do many acts which will operate to give the tribunal jurisdiction of his person. If he appears before the tribunal wherein the action or proceeding is pending, and submits his case to its judgment, or if he fails, at the earliest opportunity, or within reasonable time, to make the objection that such tribunal has not acquired jurisdiction of his person, he thereby waives such objection, and will not afterwards be heard to make it. A very satisfactory statement and discussion of these elementary principles will be found in the opinion by Bell, J., in The State v. Richmond, 26 N. H. (6 Foster), 232.

The cases in the books on these subjects of jurisdiction and waiver are very numerous, many of which are cited in the brief of counsel for the plaintiff, and were read on the argument. These, and many other cases belonging to the same class, have been carefully examined, and it is believed that they all recognize and seek to apply the principle above stated.

In this case, it is clear that the board of supervisors had no jurisdiction of the subject matter of the proceedings. Such subject matter was the laying out of a highway on and near the line between the towns of Dane and Yienna. Without the petition of fifteen resident freeholders from each of those towns asking it so to do, the board had no power to lay out the highway. Without such petition it had no jurisdiction of the matter. We have seen that no such petition was ever presented to the board. There was therefore an entire want of jurisdiction by the board of the subject matter of the proceedings.

Upon general principles it is quite doubtful wbetber tbe town could, by doing or omitting any act, give validity to tbe order of March 13th, 1869, or estop tbe town from denying tbe validity thereof. We do not decide this point, however, but concede, for tbe purposes of this case, that the town could, by its acts or omissions, accomplish either or both of these results.

This brings us to consider whether the appearance of the town of Dane, by its authorized officer, before the justice, the participation of such officer in selecting the jury, and his failure to object, then and there, that the county board of supervisors bad no jurisdiction to lay out the alleged highway, operate as a waiver of such objection and estop the town from after-wards asserting it. •

The proceedings relating to this alleged highway, were had before two separate and distinct tribunals. One of these was the county board of supervisors, which assumed to lay out the highway and assess the plaintiff’s damages in the first instance. The other was the justice, by whom the jury was empanelled and sworn to make the final assessment of such damages. The justice had no power to decide objections to the validity of the proceedings of the board of supervisors. The order of that board, regular on its face, purporting to lay out the highway, was before him, and was to him conclusive evidence that the same had been legally laid out He could not enquire whether there was some latent defect in the preliminary proceedings, which deprived the board of jurisdiction to make the order. All that he could lawfully do in the premises, was to empanel and swear the jury to assess and appraise the plaintiff’s damages.

The appearance of the town, by an authorized officer thereof, before the justice, such participation in selecting the jury, and the omission to take any objection to the proceeding, are, doubtless, a waiver of all irregularities in the proceeding before that tribunal. Eor example, any defect in the notice to the town of the selection of the jury, or an entire want of any such notice; any irregularity in selecting the jury; or the want of legal qualification by any juror so selected — was waived by tbe town, and tbe town could not be beard in this action to allege any sucb irregularity as a defense. But, upon wbat principle can it be successfully claimed that sucb appearance, acts and omissions, by tbe town, were also a waiver of tbe right to object that another tribunal, over which tbe justice bad no control and tbe proceedings of which be could not review, bad no jurisdiction of tbe subject matter of its proceedings. It would have been idle to make that objection before tbe justice. It might as well be made at a school district meeting or in church, so far as its legal effect is concerned. Tbe most stringent rule on tbe subject of waiver only requires tbe objection to be made at tbe earliest opportunity; and, for the reasons stated, the town had no opportunity to make the objection before the justice. In a legal sense, the objection could only be made before a tribunal having power to decide it; and we have seen that the justice had no such power.

It follows from these views that the town is not estopped, and that it may, in this action, be permitted to allege that the order of March 13th, 1869, is void, an'd that the property of the plaintiff for which he seeks compensation has never been taken for public use, and consequently that the town is not liable to pay therefor. Hinckley et al. Petitioners, &c., 15 Pick., 447, It appearing that such allegations are true, it necessarily follows that there must be a new trial.

It is unnecessary to pass upon the legal effect of the order made pendente lite by the board of supervisors of Dane county, vacating and discontinuing the alleged highway, and vacating and reversing the order of March 13th, 1869; or upon certain other questions discussed in the arguments of counsel.

By the Court. — The judgment of the circuit court is reversed, ;and a venire de novo awarded.