Hood v. Finch

[386] By theOourt, Cole, J. There has been no brief furnished us by the counsel for the respondent, and we are ignorant of the points upon which he relies to sustain the charge of the circuit court. From the case presented, we cannot see how the charge can be sustained. The respondent justified the acts complained of upon the ground that at the time of the commission thereof, the premises were a public street, and that he committed said acts by virtue of his office as city marshal in opening the street. The proceedings of the common council offered in evidence by him for the purpose of showing that a highway had been legally laid out over the appellant’s premises, do not show any justification. For if we should assume that section 2, Art. xi, of the constitution was substantially complied with by section 32 of the charter, (Session Laws, 1848, June, p. 80,) which provides the manner for establishing the necessity of taking private property for public use; still .there would be an insuperable objection to the proceeding. No compensation is rendered for the property taken from the appellant. The six free-holders, who were summoned under section 32, of the charter to establish the necessity of laying out and extending Hamilton street, according to a survey by the city surveyor, and were also by their warrant directed to estimate and assess the damages which might be sustained by the owners of any lot through which the proposed street might pass, awarded to the appellant no damages for the property taken. They did award to Samuel Hood, twenty-five dollars for damages to the south-east corner lots of block 22; but that is not compensation to the appellant for his property taken for the use of the public. It may be that this jury (if they can be called such, within the meaning of that term as used in section 2, Art. xi of the Constitution,) made a mistake in awarding damages to [387] Samuel Hood, instead of giving them to the appellant, the true owner of the land; but if this were made to appear it would not materially affect the case. Compensation in fact, was not given to the appellant for his property taken, and therefore the act of the city marshal in opening the street was an unauthorized trespass. We have less reluctance in announcing this conclusion when we consider the character of section 33 of the charter under which the city authorities proceeded in this case. That section enables the city council, one of the parties to this hostile proceeding, to take private property for public use, without any notice to the individual, whose property it is proposed to take, to summon six freeholders to determine both the necessity for such taking and to appraise and fix the compensation. The wisdom, equity and justice of such a provision of law, are not very apparent, and therefore, if a mistake has been committed in the necessary preliminary steps, it is proper that the full consequences of such mistake should rest upon the city authorities which instituted and carried through this one sided proceeding. And we cannot dismiss this cause without adding what in substance was said in the case of Lumsden vs. The City of Milwaukee, unreported. That provisions of this character in city charters confound all our ideas of fairness and equity, and are clear departures frotó those principles of the constitution, and of common justice, which are the security for rights and property. The judgment of the circuit court is reversed and a new trial ordered.