Seifert v. Brooks

Dixon, C. J. Of what value is the constitutional guaranty (sec. 2, art 'XI), that “ no municipal corporation shall take private property for public use against the consent of the owner, without the necessity therefor being first established by the verdict of a jury,” if the owner of the property is to have no notice of the time and place of the meeting of the jury to inquire into and determine-upon the necessity? As determined in Lumsden v. Milwaukee, 8 Wis., 485, 494, the proceeding is strictly adversary; the corporation, representing the public, being the party on the one side, and the person whose .property it is proposed to take, the party on the other. Where such is the character of the proceeding, the law is most justly unrelenting in its abhorrence and unalterable in its condemnation of [447] every act or step, in its nature final, which, shall be done or talcen ex parte, or without notice to the other party, where such notice can be given. It will not tolerate such act or step, but unhesitatingly declares it void upon the broadest and most obvious grounds of natural reason and justice. If the whole proceeding be ex parte or without notice, where notice should be given, or if such be the character of the determina-tory act, the law condemns it in ioio, and disregards it from the beginning. 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. As the defendant or party in interest in the proceeding to establish the necessity for the taking of his property, the plaintiff in this aGtion, who was the owner, was wholly without notice. The entire proceeding was regulated or attempted to be by secs. 38, 39 and 40 of the village charter, being ch. 381, P. & L. Laws of 1871, which 'made no provision whatever for the giving of any notice to the owner of the time and place for the assembling of the jury to consider and determine the question of necessity, and none for his notification of any previous step in the proceeding, from the application made to the trustees to the verdict, inclusive. It is provided that the trustees shall cause to be summoned, by the marshal of the village, a jury of twelve disinterested freeholders, residents of the village; but no provision is made that the owner of the property shall be notified of the time and place of such drawing or selection. It is certainly very proper that the charter should provide for the selection of a jury of disinterested freeholders ; and it would seem all the more proper that the property owner should also have notice of the time and place of such selection, in order that he may be heard in his objections, if he has any, to the persons, or any of them, chosen or proposed to be by the mar [448] shal, that they are not disinterested. The absence of any clause requiring such notice to be given would seem, therefore, to constitute a very serious objection to the statute ; but omitting this from our consideration, and looking only to the other defect, namely, that no notice is required to be given of the time and place of the assembling of the jury, the act must in this particular be held unconstitutional and void, and the proceeding taken under it also inoperative and wholly void. It is true that sec. 40 enacts that the jury shall hear the declarations of the parties interested for or against the laying out of the street, and shall take such evidence as a majority of the jury think proper; but this, with no regulation for the giving of some reasonable notice enabling the land owner to appear, must in general, if not always, also be found a fruitless and nugatory provision. In State v. Langer, 29 Wis., 68, it was held that the failure to give the occupant of land the notice prescribed by the general statute relating to the laying out of highways in towns, invalidated the proceeding ; and that notwithstanding the occupant received notice in so me other way, and was present at the meeting of the supervisors to decide upon the application. And in Lumsden v. Milwaukee, supra, where the act was held unconstitutional because it did not provide that the jury should be sworn before acting, it was likewise decided that the fact that they were actually sworn did not aid their acts or render them any more valid than if they had acted without oath. It is not seen, therefore, how, if the plaintiff had been notified of the time and place of meeting, or if he had been present at such time and place, but taking no part, either circumstance could have availed to cure the defect or render the proceeding of any validity. It is the omission or unconstitutional feature in the statute which vitiates, and that can be cured only by the legislature itself, or, in particular cases, it may be, by the waiver or voluntary abandonment of his constitutional rights by the landowner, who has that power. The case of Hood v. Finch, 8 Wis., 381, is directly in point [449] upon tbe question we have been considering; for it was there held that a provision in tbe charter of the city of Racine, authorizing the summoning of a jury to determine the necessity, without any notice to the owner, was in violation of the constitution, and consequently void. A further objection urged against the maintenance of this action is, that the plaintiff waived or is estopped from now asserting his constitutional right, by reason of the claim made by him, under section 27 of the charter, for greater damages than were offered by the trustees upon the laying out of the so-called street; and the cases of Karber v. Nellis, 22 Wis., 215, and State v. Langer, supra, are cited. Upon the claim so made, a jury was summoned as prescribed by section 28, who assessed the damages of the plaintiff at the sum of fifty dollars ; but it does not appear that the plaintiff ever accepted them. The cases cited hold that where defective proceedings are resorted to for the purpose of laying out a highway, and the land owner accepts the damages awarded, he is estopped from contesting the validity of the highway, and the act may be regarded as a dedication. The claim for damages thus made, or participation in the assessment, ought not to be regarded as a waiver or estop-pel, unless the plaintiff could in those proceedings have raised or taken the objection that the prior proceedings to determine the necessity were defective and void. It is very clear that no such objection could have been taken. The case of Damp v. Town of Dane, 29 Wis., 419, decides this; and the principle there held upon the subject of waiver seems to be that which should govern here. Objecting to the sum offered as damages, and accepting the damages awarded, are acts widely different in their nature, and which can not have the same effect. We are of opinion that the plaintiff did not waive his constitutional right to the verdict of a jury determining the necessity for the taking, and that he is not precluded from asserting or taking advantage of the invalidity of the proceedings in that regard. By the Court. —Judgment affirmed.