Hurst v. Town of Martinsburg

BROWN, J. Proceedings under G. S. 1894, § 1824, were duly commenced for laying out a highway on the line between two towns. The town boards of supervisors of the towns interested ordered the road laid out. The respondent appealed therefrom to the district court, where the proceedings were dismissed for want of jurisdiction, and the towns appeal to this court. Three questions are presented and argued in this court: (1) Whether the section of the statutes under which the proceedings are pending is unconstitutional and void; (2) whether such section was repealed by Laws 1-891, c. 150 (see section 1838); and (3) whether the proof of the service and posting of the supervisors’ notice of hearing is sufficient to confer jurisdiction. The section of the statute under which the proceedings are pending is as follows: “Whenever the supervisors of any town receive a petition praying for the location of a new road, or the altering or discontinuing of an old one, on the line between two towns, such road shall be laid out, altered, or discontinued by two or more of the supervisors of each of said towns, either on such line or as near thereto as the convenience of the ground will admit; and they may so vary the same either to one side or the other of such line as they think proper.” G. S. 1894, § 1824. It is contended that this statute violates the constitutions of the United States and of the state of Minnesota. The constitutional provision claimed to be violated is that no person shall be deprived of life, liberty or property, “without due process of law,” and that — 42 — “private property shall not be taken for public use without just compensation therefor.” Const. (U. S.) Amend. 14, § 1; Const. (Minn.) art. 1, § 13. The particular point is that the section of the statute in question does not, nor do any other sections which can be properly construed with it, provide for notice to the parties interested and to be affected by the proposed road, nor provide for compensation for land to be taken therefor. It must be admitted that there are difficulties in the way of applying this statute and putting it into operation, but such objections relate to the conduct of the proceedings thereby authorized, rather than to the validity of the statute on constitutional grounds. If the section stood alone, it would undoubtedly be open to the constitutional objections urged against it. It is a part of the general revision of the highway,law of 1873 (Laws 1873, c. 5, § 42). It is true that there are no sections of the statute immediately associated or connected with this section which provide for notice or for compensation for land taken, but we are not confined to the section standing alone. It is an inseparable part of Laws 1873, c. 5, and in construing and interpreting it the whole chapter must be considered together. Sutherland, St. Const. §§ 246-260. The several provisions of the chapter, so far as applicable to the subject in hand, are not as full and complete as well-considered and carefully prepared statutes might be made, but omissions as to the mode and manner of conducting the proceedings thereby authorized may be supplied by intendment, and do not affect the constitutionality of the law as a whole. Other sections of this statute provide for laying out town roads by town supervisors, for notice to all interested parties, and for damages and compensation for land taken. And, unless the section under consideration is to be stricken from the statutes and held entirely meaningless, such other provisions must be referred to, and applied to proceedings to lay out a town-line road under it. They may be resorted to and applied without much difficulty, and the legislature evidently so. intended. The supervisors receiving the petition for such town-line road must take the active charge and conduct of the proceedings, but in the — 43 — matter of determining whether the road shall be laid out, and in assessing damages, they can act only in conjunction with the supervisors of the adjoining town. The records may be kept in the town in which the proceedings are commenced, and duplicates filed in the adjoining town; and the matter of the division of the damages to be paid, between the towns, must be left to the judgment and discretion of both boards. The notices required to be given in the case of an ordinary town road must be served in the same manner in this proceeding. Three copies should be posted in each town. Statutes must be so construed as to give effect to every section and part, and, when any doubts arise as to the constitutionality thereof, such doubts must be resolved in favor of the law. That the legislature intended that the section of the statute under consideration should have some force and effect is too evident to be for a moment doubted. And that it was further intended that the other sections on the subject of laying out town roads generally should be resorted to and applied to this section and proceedings under it, we have no doubt. We so construe and interpret it. 23 Am. & Eng. Enc. 309; City v. Granniss, 77 Cal. 511, 19 Pac. 875; Moyle v. Jenkins, 51 L. J. Q. B. 112; City v. McNickle’s Heirs, 18 B. Mon. 262, 286. 2. The contention that section 1824 was repealed by Laws 1891, c. 150, cannot be sustained. The act contains no express repeal, and can only be held as repealing it by implication. Such repeals are not favored, and unless the later statute fully and completely covers and embraces the entire subject of the older one, and is repugnant to and inconsistent therewith, no repeal by implication can arise. Sutherland, St. Const. § 138; Moss v. City of St. Paul, 21 Minn. 421. There is no such repugnancy between those two statutes as to justify an inference that the legislature intended the former to cover and embrace the entire subject of town-line roads. Both statutes may stand together. A case might arise where the town boards would deem it inexpedient to lay out a town-line road, or they might be unable to agree. In either case the county commissioners could relieve the situation, under Laws 1891, c. 150. Or a case might arise where the proposed road would extend on the — 44 — line between several towns. In such case the town board could not act, but the county board could. There can be no danger of a conflict of authority in such matter. We are agreed on these two questions, and hold that section 1824 is not unconstitutional; neither was it repealed by Laws 1891, c. 150. But we are not agreed on the question of jurisdiction of the supervisors to proceed and lay out the road. A majority are of the opinion that respondent cannot be heard to question the sufficiency of the notice of hearing, or of the posting and service thereof. Respondent was duly served with a copy of the notice of hearing, and he A'oluntarily appeared and took part in the proceedings before the supervisors. He does not complain of any defect in the service of notice upon himself, but does complain that the proofs of service upon other interested parties, and of posting the notice, are wholly insufficient to confer jurisdiction. Conceding that such proof of service is defective and insufficient, we hold that respondent is not in position to raise the objection. As to himself and his land, he waived proper service by his voluntary appearance before the supervisors. Kieckenapp v. Supervisors, 64 Minn. 547, 67 N. W. 662; Anderson v. Town of Decoria, 74 Minn. 339, 77 N. W. 229. And the only question to determine is, can he be heard to complain of a defect in the proof of1 service of the notice on his neighbors? He does not question the fact of service or the fact of posting the notice, but the proof thereof. The town board had jurisdiction of the proceedings, and the fact of service and posting of notice of hearing, not the proof thereof, gave it jurisdiction of the parties. Town of Haven v. Orton, 37 Minn. 445, 35 N. W. 264. Elliott, Roads & S., 242, 244, lays down the general rule on this subject as follows: “Where notice is required, it is essential to confer jurisdiction, > for without some notice there is no jurisdiction, and the proceedings are absolutely void. It is not, however, to be understood that where there is jurisdiction of the subject-matter and there are many persons interested as owners of different parcels of land, failure to give notice to some of the property owners will vitiate the entire proceeding. In such cases the better opinion is that the proceeding is void only as to those who have not been notified, but valid as to those who have had notice. * * * Proceedings in highway cases, therefore, are not, as a general rule, impeachable by persons — 45 — who, by due process of law, have been brought into court, although other property owners may not have received notice,” — citing State v. Richmond, 6 Fost. (N H.) 235; State v. Easton, 36 N. J. L. 181. No very good reason occurs to us why a person who has been duly served with notice, or has voluntarily appeared in the proceedings and thereby waived notice, should be permitted to urge the failure to serve his co-defendant, or to set himself up as a representative of the public generally. The supervisors in such cases represent the public, and it may be assumed that they will fully perform their duties. In State v. Barton, 36 Minn. 145, 30 N. W. 454, and Schuster v. Supervisors, 27 Minn. 253, 6 N. W. 802, it was held that a stranger to such proceedings could not appeal, though he assumed to represent the public. This rule may havq been changed by Laws 1897, c. 199, § 14, so that a taxpayer or legal voter may now appeal from the determination of the county commissioners or town supervisors; but plaintiff did not appeal in such capacity, and cannot be now permitted to shift his position. But proof of posting the notice of hearing is not required by statutes to be filed, and G-. S. 18D4, § 1809, vests in the supervisors the power of determining whether the required notice has been properly posted. That section is as follows: “The supervisors, upon being satisfied that the notices * * * have been duly served, proof of which shall be shown by affidavit, shall proceed to examine personally such highway,” etc. It being thus ip the power of the supervisors to determine whether the proper notices have been duly served, their determination of that question should, as to one who has waived all notice, be held conclusive, in the absence of some affirmative evidence that the notices were not served. The proof presented having “satisfied” the supervisors that the notice had been properly posted, the jurisdiction to proceed was complete, for the affidavit of posting does not •show that the notices were not legally posted. On the contrary, it can be fairly construed as affirmatively showing a legal posting. Burldeo v. County of Washington, 38 Minn. 441, 38 N. W. 108. The case of Pairier v. Board of Co. Commrs., 68 Minn. 297, 71 N. W. 382, is not in point. It is there said (and correctly so) — 46 — “That this clearly indicates that it was intended to confer upon an appellant the right to contest the regularity of the proceedings on which the decision and determination of the commissioners is founded, as well as the validity of such decision and determination, and, if unsuccessful, he might then have his damages reassessed.” This is sound law and good sense, but is far from holding that, where a person interested in such proceedings waives notice as to himself by a voluntary appearance, he may turn around and appear for and in behalf of the public and his neighbors, and be heard to object that the notice as to them has not been given. Our conclusion is that the learned trial judge erred in dismissing the proceeding, and that the order appealed from must be reversed. Order reversed.