State ex rel. Andrews v. City of Oshkosh

54 N.W. 1095, 84 Wis. 548, 1893 Wisc. LEXIS 105

• Court: Wisconsin Supreme Court
• Decided: April 11, 1893
• Status: Published

Opinion

Cassoday, J.

The proceedings for condemnation, mentioned in the foregoing statement, appear to have complied substantially with the several provisions of the charter as revised, consolidated, and amended by ch. 59, Laws of 1891. The citj7 is expressly empowered to condemn lands for alleys in the manner prescribed by subch. XX of the charter. Sec. 1. It is contended that the notice of the presentation of the petition to the court for such condemnation, as prescribed in sec. 6 of said subchapter and set forth in the foregoing statement, was insufficient to satisfy the requirement of the section of the constitution which declares that “ no municipal corporation shall take private property for public use, against the consent of the owner, without the necessity thereof being first established by the verdict of a jury.” Sec. 2, art. XI.

It will be observed that this section does not mention the subject of notice. Nevertheless, the necessity of notice is implied, as determined in several cases in this court, cited by counsel in support of - their contention. Thus in Hood v. Finch, 8 Wis. 381, it was held that a charter Which authorized the determination of the necessity of such taking, and to fix the compensation therefor, by six freeholders, without any notice to the owner, was unjust, inequitable, and in violation of the spirit of the constitutional provision quoted; and it was there queried whether six freeholders, so summoned, constituted a “jury,” within the meaning of that provision. No such questions are here involved. In Seifert v. Brooks, 34 Wis. 443, the charter required no notice to the lot-owner of the time and place of drawing or selecting the jury, nor of their assembling to consider and determine the question of such necessity, nor of any step down to the rendition of the verdict, except that it did provide that the jury should “ hear the declarations of the parties interested for or against the laying out or opening of said street.” But this was construed not to require any notice; and so it was held that such failure of the charter to require any such notice rendered the condemnation proceedings thereunder wholly void by reason of the constitutional provision quoted. In State ex rel. Flint v. Fond du Lac, 42 Wis. 287, the only notice required to be given to the lot-owner of the time and place for the appointment and meeting of the jury for determining the necessity for the taking was by publication in a newspaper. The relator was one of such lot-owners, and resided in the city at the time of such appointment and meeting, but received no personal notice, and it was held that the failure of the charter to require personal notice to such lot-owner rendered the proceedings for such condemnation void, by reason of the section of the constitution quoted. It was there said by Cole, J., speaking for the court, that “ where the owner is known and lives, or has an agent or tenant living, within the municipality, a personal notice of these steps is essential, and must be given, or the proceedings will be void. . . . Where the owner is unknown, or is a nonresident, notice by publication may be sufficient.” To the same effect is Kundinger v. Saginaw, 59 Mich. 361.

It will be observed that none of the cases thus cited determine the precise question here presented. The section of the charter mentioned required the city attorney “ to prepare, and file with said petition ” for condemnation, “ a sworn list of the names and residences ... of persons owning or being interested in the lands proposed to be taken therein,” with copies thereto annexed of the original petition, resolution of the common council, and the report of the board of public works, as to the proposed condemnation, and thereupon to prepare a notice substantially in the form therein given. Such list was prepared and filed, and such notice was personally served on the relator, November 3, 1891, as mentioned in the foregoing statement. The section declares that “the filing of said petition shall be deemed the commencement of a suit; ” and that such notice may be served upon the owners of the land to be condemned, and all persons interested therein, in all respects like a summons in a civil action; and, in case any of them are nonresidents, then such service is to be by publication, as therein prescribed. The mere fact that the notice was addressed “ To whom it may concern ” is of no significance. The important question is whether it brought home to the relator and other lot-owners notice of the “ suit ” thus commenced. The title to the notice showed the nature of the proceedings. It referred to the petition thus on file in the matter thus entitled, and required “ all persons, interested in said matter ” to answer said petition within the time specified. It appeared from the petition and the affidavit of the city attorney annexed, thus on file, that the relator was one of the persons thus interested, and that the strip of her land described in said statement was the land therein sought to be condemned. The petition so on file, with the papers annexed, as parts thereof, called for “ a jury of twelve men” to be “summoned to deliberate upon the feasibility of opening said ” alley, and for proceedings for-condemning said strip. The charter is a public law, and all citizens are conclusively presumed to have knowledge of its provisions. The relator must be regarded, therefore, as having been thus notified of the contents of the petition so on file, and the papers annexed as parts thereof, and the proceedings thereupon authorized.

The section mentioned authorized the relator, within twenty days after such personal service upon her, to serve an answer to such petition upon the city attorney, and file the same, as in cases of answers in civil actions. The section prescribes the proceedings to be taken in case no answer is served, and also provides that, “ if an answer or answers shall have been served, the issue upon the petition and such answer or answers shall be tried by the court and jury, the same as other issues of fact, and in either case the court shall thereupon instruct the jury as in other cases triable by jury.” The land-owner so answering is by the section entitled to three days’ notice of such trial, and the jury are to be impaneled as hereinafter mentioned. The question thus to be submitted to the jury by the court, in either case, is whether it is or is not “ necessary to condemn the real estate sought to be condemned in ” such “ proceeding for the public use.” The only object of answering such petition, therefore, is to contest the claim of such necessity. If the necessity be conceded, then it is a mere waste of time to put in an answer and be to the expense of going to trial upon the issue thus formed. The lot-owner is certainly at liberty not to answer. The section also provides, in effect, that “ no notice of retainer or appearance without an answer shall be of any avail; ” that upon the full expiration of tbe time for answering the city attorney may, “ without notice to parties who have not answered,” “ call up said matter for hearing; ” that “the circuit court shall thereupon impanel a jury as in civil cakes triable by jury, .to determine whether or not it is necessary to take the land proposed to be condemned for the public use. Such jury shall view the premises in question in the same manner as in civil actions when a view of premises is ordered by the court, at the expense of the city, and shall return into court, as in such cases,” their verdict as to whether such condemnation is or is not necessary, as indicated; and, “ upon the coming in of the verdict, judgment ” is to be entered condemning the land or dismissing the petition, as the verdict may require; and no appeal therefrom is allowable, but the judgment is reviewable in this court upon certiorari.

The question recurs whether the provision of the charter mentioned, dispensing with the notice of three days to lot-owners who thus failed to answer, of the time and place of impaneling the jury, rendered the judgment of condemnation void. The city attorney did in fact give to the relator personal notice of his application to the court at the courthouse, for that purpose, December 4,1891, “ at the opening of the court on that day or as soon thereafter as counsel ” could “ be heard;” but the .relator did not appear therein, and the matter was continued by the court, and the jury was not impaneled until December 8, 1891. Besides, it is claimed that, as the charter dispensed with such notice to land-owners who failed to answer, the serving of the notice upon the relator was wdthout any legal significance. It is true that, in one of the cases cited, Dixon, C. J., in effect declared that “ every act or step, in its nature final,” in such proceedings, done or taken without notice to the lot-owner, is void. Seifert v. Brooks, 34 Wis. 446, Such declarations were, in effect, repeated in State ex rel. Flint v. Fond du Lac, 42 Wis. 287. In the case at bar the learned trial judge manifestly felt bound by such declarations. But in neither case were such declarations called for by the decision made. Besides, in giving a reason for such declarations in the case cited, DixoN, C. J., said: “ That every man is entitled to his day in court, and must have it, and cannot be affected in his person or his property unheard, or without the privilege secured to him of appearing or being represented in his own defense, if he so desires, is a maxim the force and importance of which every good lawyer appreciates, and one which no court ever surrenders.” In other words, and in the language of the fundamental law: “No state shall . . . deprive any person of life, liberty, or property without due process of law.” Sec. 1, art. XIY, Amend. Const. IJ. S.

The principal question presented, therefore, is whether the condemnation proceedings, if held to be effective, would operate to deprive the relator of her “ property without due process of law,” within the meaning of the constitutional provision last quoted. “ Due process of law,” said Waite, C. J., “is process due according to the law of the land. This process in the states is regulated by the law of the state.” Walker v. Sauvinet, 92 U. S. 93. See Davidson v. New Orleans, 96 U. S. 104; Walston v. Nevin, 128 U. S. 582. In Huling v. K. V. R. & I. Co. 130 U. S. 559, it ivas held, in proceedings commenced under a state statute for condemnation of land for a railroad, that service of notice to a nonresident 'owner of land affected thereby, by publication, was “ due process of law,” as applied to such a case. Arndt v. Griggs, 134 U. S. 326. This is, in effect, conceded in the adjudications of this court above cited as to nonresident lot-owners. We are constrained to hold that the personal service upon the relator of the notice of the presentation of the petition for condemnation, and requiring her to answer the same, as mentioned, was “due process of law.” That process, in effect, notified her of the contents of the petition on file and the papers thereto annexed, and of the subsequent proceedings thereon essential to such condemnation, including, the impaneling of the jury and the assessment of damages. If the relator desired the three days’ notice of the time and place of calling up the matter in court for hearing and the impaneling of the jury to determine the necessity of such taking, she could have secured the same by answering the petition, which, under the charter, would have given her an absolute right to such notice. Manifestly, she had no such desire, since she did not appear at' such hearing after being actually notified. The mere fact that the charter dispensed with such three days’ notice to such lot-owners as did not answer did not prevent .the original notice from being “ due process of law,” within the meaning of the constitutional provision quoted. The determination of such necessity was an essential part of such' condemnation, and hence was covered by the notice. It is entirely, unlike a subsequent proceeding in a matter required to be instituted upon a new petition, and for a substantive purpose. Even in Seifert v. Brooks, 34 Wis. 443, it was left undecided whether the mere omission to provide for notice to the lot-owner of the time and place for the selection of the jury would have the effect to avoid'the proceedings.

Of course, under the constitutional provision of this state quoted, no such condemnation could be had until the necessity therefor should be “ first established by the verdict of a jury ” (sec. 2, art. XI); and this court has held,- in effect, that the statutory authority for such condemnation must also provide for the swearing of-such jury before they should enter upon such determination (Lumsden v. Milwaukee, 8 Wis. 485). Here, as indicated, the charter required the circuit court to impanel such “ jury as in .civil cases triable by jury, to determine whether or not it is necessary to take the land proposed to be condemned -for the public use.” Sec. 6, subch. XX, ch. 59, Laws of 1891. This clearly implies that such jury must be impaneled and sworn as in civil cases. Secs. 2532-2544, E. S. It, moreover, suggests the form of the oath. Ibid. Nothing appearing to the contrary, it must be assumed that the jury were sworn before entering upon their duty as such in the matter. For a similar reason we must assume that the jury, upon being sworn, viewed the premises and returned their verdict as required by the charter.

It follows, from what has been said, that the circuit court acquired jurisdiction to render the judgment of condemnation, and the same thereupon became binding upon the relator.

It is contended that the statutes thus authorizing such condemnation are void, because no appeal is allowable from such judgment, and the same is only reviewable in this court upon certiorari. True, the constitution provides that “ writs of error shall never be prohibited by law.” Sec. 21, art. I, Const.; State ex rel. Larkin v. Ryan, 70 Wis. 683. It is conceded that that provision of the constitution has no application to this case, since the judgment of condemnation was not obtained by proceedings according to the course of the common law. Crocker v. State, 60 Wis. 553; Buttrick v. Roy, 72 Wis. 164. In other words, it is conceded that' the proceedings are purely statutory. It necessarily follows that there can be no right to an appeal, in a case like this, unless it be given by statute. In re Canal & Walker Sts. 12 N. Y. 406; King v. Mayor, 36 N. Y. 183; Norfolk S. R. Co. v. Ely, 95 N. C. 77; Appeal of Houghton, 42 Cal. 35; Lewis, Em. Dom. § 536. The mere fact that errors may have intervened which might have been corrected on appeal is no ground for avoiding the judgment of condemnation upon certiorari, nor questioning it upon this appeal.

It is contended that the charter is void because it does not provide a fair and impartial tribunal to assess the •damages, nor for proper notice of such assessment, nor for' taking evidence thereon, and in allowing benefits to be offset against the value of the land taken. It is, in effect, ■conceded that the several steps in the assessment of such damages, mentioned in the foregoing statement, were each and all expressly authorized by the charter, and were taken strictly in accordance therewith. The tribunal thus prescribed for the assessment of such damages was the board of public works of the citjq to consist of the city comptroller .and two commissioners, each of whom were to be appointed by the mayor and confirmed by the common council. Each member of said board was required by the charter, before entering upon the duties of his office, to take and subscribe the oath provided for by the constitution, and to file the same with the city clerk. Subch. IY, X, ch. 59, Laws ■of 1891. Such oath was so taken and filed, and covered all duties of the board, including such assessment of damages. McIntyre v. White Creek, 43 Wis. 624; Powers v. Oshkosh, 56 Wis. 665; State v. Hogue, 71 Wis. 384. Thus, each member of the board, in making such assessment, acted under the sanction of his official oath. Upon the assessment being completed by the board they were required, in effect, to give notice that their report of such assessment was open for review in their office, and would so continue for the space of twenty days, as prescribed, and that upon a day named therein said board would be in session to hear .all objections that might be made to such assessment; that at the time so specified said board should hear all parties interested appearing before them, and reduce to writing-all objections made and all evidence offered to sustain the same, and should have power to review, modify, and correct said assessment as they might deem just; and thereupon a complete and final assessment should be made and filed by them with the city clerk, together with all such objections and evidence, and proof of the publication of such notice. The charter further prescribed, in effect, that when such completed assessment should be confirmed by the common council, proceedings should be taken to collect the special tax as prescribed, and that the cost of each condemnation should be paid out of the fund therein designated. Each and all of these several steps were taken and acts performed as mentioned in the foregoing statement. The charter also provided, in effect, that any part}1" aggrieved by any assessment of benefits or damages, or both, might appeal to the circuit court therefrom, within the time, in the manner, and upon the security prescribed in appeals from the decision of the common council upon claims, and like proceedings should be had thereon. Subch. NX. The relator took no such appeal, and apparently made no objection to such assessment nor any of such proceedings. The mere fact that the board of public works was composed of city officials did not. make them less fair or impartial. They were acting under the responsibility of an official oath, and had no more interest in the matter than other citizens. We are constrained to hold that the board of' public works was a fair and impartial tribunal to assess such damages; that the assessment was made upon proper-notice, with full opportunity for hearing and taking evidence thereon. There is nothing in the constitution nor any statute requiring that such damages should be assessed by a jury of twelve men or any particular number, nor is it customary. Especially is this so where there is an opportunity of an appeal, as here. This is in effect conceded. In Pearson v. Yewdall, 95 U. S. 294, a jury of six persons to assess such damages was sustained. In U. S. v. Jones, 109 U. S. 519, Mr. Justice Field, speaking for the whole court, said: “ The proceeding for the ascertainment of the value of the property, and consequent compensation to be made, is merely an inquisition to establish a particular fact as a preliminary to the actual taking; and it may be prosecuted before commissioners or special boards, or the courts, with or without the intervention of a jury, as the legislative power may designate. All that is required.is that it shall be conducted in some fair and just manner, with opportunity to the owners of the property to present evidence as to its value, and to be heard thereon.” The city charter provides for all these requirements: In a recent case in New Jersey it was held that “ commissioners to appraise the value of the land to be taken for such use may be constitutionally appointed by the governor of the state, without notice to the land-owners.” Singer Mfg. Co. v. Heppenheimer, 54 N. J. Law, 439.

It is true, the constitution provides that “the property of no person shall be taken for public use without just compensation therefor.” Sec. 13, art. I. Manifestly, such compensation must be actually made, or the means provided whereby it can be certainly obtained, before the right to so take for public use is complete. In the case last cited it was .held that, on payment of the fund into court, the right to take possession was complete. Here the city authorities provided the fund, and did everything they could to make the payment complete. Nothing was left but for the relator to accept the damages assessed and draw her money. Besides, whpre the taking is by a town or municipal corporation, such actual payment or deposit is unnecessary. Smeaton v. Martin, 57 Wis. 373, and cases there cited.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with direction to quash the writ of certiorari.