Gove v. County of Murray

Supreme Court of Minnesota

Gove v. County of Murray

179 N.W. 569, 147 Minn. 24, 1920 Minn. LEXIS 667

CourtSupreme Court of Minnesota

DecidedOctober 15, 1920

DocketNo. 21,665

StatusPublished

Cited by7 cases

This text of 179 N.W. 569 (Gove v. County of Murray) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gove v. County of Murray, 179 N.W. 569, 147 Minn. 24, 1920 Minn. LEXIS 667 (Mich. 1920).

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Opinions

HarlaM, J.

In Judicial Ditch Proceedings Number Four (4) of Murray county, appellant, C. W. Gove, was duly appointed engineer. On August 31, 1916, the ditch proceeding was dismissed. On April 10, 1917, appellant presented to the judge of the district court of Murray county a bill for his services and expenses as such engineer, and the judge, acting under G. S. 1913, § 5571, audited the bill and ordered it paid. This order was reviewed by this court on certiorari and was reversed. State ex rel. County of Murray v. District Court of Thirteenth Judicial District, 138 Minn. 204, 164 N. W. 815. On January 3, 1918, appellant procured an order returnable January 11, 1918, requiring the county to show cause why the bill should not be paid. On the return day the county objected to the proceeding, on the ground that the statute under which it was instituted was unconstitutional, and that the court was without jurisdiction.

Before the court ruled upon the objection, evidence was taken, subject to the objection. The court finally sustained the objection to the jurisdiction and dismissed the order to show cause. The claimant appealed.

1. In our opinion the order is appealable. It is a final order affecting a substantial right made in a special proceeding. G. S. 8001, subd. 7. It ended the proceeding and that constitutes finality. Rondeau v. Beaumette, 4 Minn. 163 (224).

Both parties and the court appear to have regarded the appearance of the county as a special appearance for the purpose of raising objection to the jurisdiction and in view of this fact we will so regard it.

2. When this case was before this court on the former appeal, it was held that the legislature intended that the counties should be primarily liable for the expenses incurred in judicial ditch proceedings when the proceeding is dismissed. The court declined to say "that' the legislature might not impose liability upon the county for expenses where the ditch is not constructed,” but the court did hold that the portion of section 5571, which in substance provides that, after the ditch proceeding is dismissed, such claims shall be audited, allowed and paid' upon the [26]*26order of the judge of the district court, is “unconstitutional as not due process of law,” because the statute “provides for no notice to the county, no right or opportunity to be heard” on an application to the court to audit and allow such claims and order them paid. On motion for re-argument, the court was asked to modify the opinion so that the statute shall not be held unconstitutional if notice is given to the county. “The motion to modify the opinion” was denied. The writer of this opinion did not concur in the view that this statute is unconstitutional, but the decision was the well-considered decision of the majority of the court and there seems no occasion to reopen that question. The decision was explicit that the portion of section 5571, under which this application is made, is unconstitutional as applied to parties in the relation of the parties of this appeal, that is, as applied to an application to the court after the ditch proceeding has been dismissed.

In Baugh v. County of Norman, 140 Minn. 465, 168 N. W. 348, it was held that, during the course of the ditch proceeding the court may, on application made on notice, order payment of the fees of the engineer and his assistant out of funds raised by assessment. Distinction was there drawn between such an application, made during the course of a pending proceeding, and this one, made after the proceeding has terminated and the parties are out of court.

3. In disposing of the motion to modify the opinion on the former appeal, the court said: “It may be understood that the question whether an order made under the statute would be valid if proper notice was given by order to show cause or otherwise of the application to the court is left open.”¹ The question “left open” does not present any serious difficulty. The statute being unconstitutional, no vitality can be given to it, and no effect given to proceedings under it, by the issuance of an order to show cause. The constitutionality of a statute does not depend upon the acts of parties nor upon an order of a court. If the statute offends against the Federal constitutional requirement of due process of law, it is a nullity, and it cannot be mended by parties or courts. The law itself must save the rights of the parties. The notice that is required to satisfy the requirement of due process of law must be provided as an essential part of the statutory provision and not awarded as a mere matter of favor or grace. These propositions are well settled. Security [27]*27Trust & S. V. Co. v. Lexington, 203 U. S. 323, 27 Sup. Ct. 87, 51 L. ed. 204; Central of Georgia Ry. Co. v. Wright, 207 U. S. 127, 28 Sup. Ct. 47, 52 L. ed. 134, 12 Ann. Cas. 463; Louisville & N. R. Co. v. Central Stockyards Co. 212 U. S. 132, 29 Sup. Ct. 246, 53 L. ed. 441; Coe v. Armour Fertilizer Works, 237 U. S. 413, 35 Sup. Ct. 625, 59 L. ed. 1027. It follows that the court was right in holding that it acquired no jurisdiction and in dismissing the proceedings.

Order affirmed.

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HarlaM, J.

In Judicial Ditch Proceedings Number Four (4) of Murray county, appellant, C. W. Gove, was duly appointed engineer. On August 31, 1916, the ditch proceeding was dismissed. On April 10, 1917, appellant presented to the judge of the district court of Murray county a bill for his services and expenses as such engineer, and the judge, acting under G. S. 1913, § 5571, audited the bill and ordered it paid. This order was reviewed by this court on certiorari and was reversed. State ex rel. County of Murray v. District Court of Thirteenth Judicial District, 138 Minn. 204, 164 N. W. 815. On January 3, 1918, appellant procured an order returnable January 11, 1918, requiring the county to show cause why the bill should not be paid. On the return day the county objected to the proceeding, on the ground that the statute under which it was instituted was unconstitutional, and that the court was without jurisdiction.

Before the court ruled upon the objection, evidence was taken, subject to the objection. The court finally sustained the objection to the jurisdiction and dismissed the order to show cause. The claimant appealed.

1. In our opinion the order is appealable. It is a final order affecting a substantial right made in a special proceeding. G. S. 8001, subd. 7. It ended the proceeding and that constitutes finality. Rondeau v. Beaumette, 4 Minn. 163 (224).

Both parties and the court appear to have regarded the appearance of the county as a special appearance for the purpose of raising objection to the jurisdiction and in view of this fact we will so regard it.

2. When this case was before this court on the former appeal, it was held that the legislature intended that the counties should be primarily liable for the expenses incurred in judicial ditch proceedings when the proceeding is dismissed. The court declined to say "that' the legislature might not impose liability upon the county for expenses where the ditch is not constructed,” but the court did hold that the portion of section 5571, which in substance provides that, after the ditch proceeding is dismissed, such claims shall be audited, allowed and paid' upon the [26]*26order of the judge of the district court, is “unconstitutional as not due process of law,” because the statute “provides for no notice to the county, no right or opportunity to be heard” on an application to the court to audit and allow such claims and order them paid. On motion for re-argument, the court was asked to modify the opinion so that the statute shall not be held unconstitutional if notice is given to the county. “The motion to modify the opinion” was denied. The writer of this opinion did not concur in the view that this statute is unconstitutional, but the decision was the well-considered decision of the majority of the court and there seems no occasion to reopen that question. The decision was explicit that the portion of section 5571, under which this application is made, is unconstitutional as applied to parties in the relation of the parties of this appeal, that is, as applied to an application to the court after the ditch proceeding has been dismissed.

In Baugh v. County of Norman, 140 Minn. 465, 168 N. W. 348, it was held that, during the course of the ditch proceeding the court may, on application made on notice, order payment of the fees of the engineer and his assistant out of funds raised by assessment. Distinction was there drawn between such an application, made during the course of a pending proceeding, and this one, made after the proceeding has terminated and the parties are out of court.

3. In disposing of the motion to modify the opinion on the former appeal, the court said: “It may be understood that the question whether an order made under the statute would be valid if proper notice was given by order to show cause or otherwise of the application to the court is left open.”¹ The question “left open” does not present any serious difficulty. The statute being unconstitutional, no vitality can be given to it, and no effect given to proceedings under it, by the issuance of an order to show cause. The constitutionality of a statute does not depend upon the acts of parties nor upon an order of a court. If the statute offends against the Federal constitutional requirement of due process of law, it is a nullity, and it cannot be mended by parties or courts. The law itself must save the rights of the parties. The notice that is required to satisfy the requirement of due process of law must be provided as an essential part of the statutory provision and not awarded as a mere matter of favor or grace. These propositions are well settled. Security [27]*27Trust & S. V. Co. v. Lexington, 203 U. S. 323, 27 Sup. Ct. 87, 51 L. ed. 204; Central of Georgia Ry. Co. v. Wright, 207 U. S. 127, 28 Sup. Ct. 47, 52 L. ed. 134, 12 Ann. Cas. 463; Louisville & N. R. Co. v. Central Stockyards Co. 212 U. S. 132, 29 Sup. Ct. 246, 53 L. ed. 441; Coe v. Armour Fertilizer Works, 237 U. S. 413, 35 Sup. Ct. 625, 59 L. ed. 1027. It follows that the court was right in holding that it acquired no jurisdiction and in dismissing the proceedings.

Order affirmed.

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179 N.W. 569, 147 Minn. 24, 1920 Minn. LEXIS 667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gove-v-county-of-murray-minn-1920.

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