Winnebago Furniture Manufacturing Co. v. Wisconsin Midland Railroad

PiNNEir, J. 1. The statute (sec. 1846, S. & B. Ann. Stats.) under which this proceeding was instituted provides that the petition of the corporation seeking to take lands for its use, “ if such real estate is desired for the main line of the railroad, or in part for the main line and in part for station or building grounds, yards, or other purposes, shall state,” among other things, “ that the route of said road has been located Tyy its boa/rd of directors upon the line so staked out, and that the real estate so described is required for the purpose of constructing and operating the proposed railroad.” The petition does not state that the route of the railroad of the petitioner has been located by its board of directors upon the line in question, and does ■ not state that the real estate in question is required for the purpose of constructing and operating the proposed railroad. It is said that the company has established and surveyed its road over the lands sought to be acquired for its main line, and has actually staked out the center line of its proposed road over the lands desired for such railroad. It was stated by counsel that the original petition contained these averments, and that by inadvertence they have been omitted from the amended petition which took the place of the original. The statute is a very plain one, and its requirement that the petition shall state these facts is absolute. In order that the court or circuit judge shall acquire jurisdiction to make the order appealed from, it is an indispensable prerequisite that a sufficient petition shall first be filed, and that notice of the time and place of its hearing be given according to law, for in no other way can jurisdiction of the subject matter and of the parties be acquired. While jurisdiction/ of the person may be waived by the acts of the parties, want of jurisdiction of the subject matter is never thus waived, and the participation of the appellant at the hearing at the time for the appointment of commissioners, and appearing before them at the assessment or appraisal [393] of tbe damages, and appealing from tbe award, is not a waiver of tbe want of jurisdiction, and will not estop tbe appellant from claiming that its lands bave not been lawfully taken. Tbe case of Damp v. Dane, 29 Wis. 419, is clear and decisive upon tbis question. State ex rel. McCurdy v. Tappan, 29 Wis. 685, 686; Canfield v. Smith, 34 Wis. 387; Mathie v. McIntosh, 40 Wis. 123; Ruhland v. Hazel Green, 55 Wis. 668-672. Jurisdiction is thus defined: “Tbe power to bear and determine a cause is jurisdiction. It is eorarn juddce whenever a case is presented wbicb brings tbis power into action. If tbe petitioner presents sucb a case in bis petition that on a demurrer tbe court would render a judgment in bis favor, it is an undoubted case of jurisdiction; whether, on an answer denying and putting in issue tbe allegations of the petition, tbe petitioner makes out bis case, is tbe exercise of jurisdiction, conferred by tbe filing a petition containing all tbe requisites, and in tbe manner required by law.” Grignon’s Lessee v. Astor, 2 How. 338; U. S. v. Arredondo, 6 Pet. 709. Tested by these principles, tbe amended petition is fatally defective, and it follows, as a necessary conclusion, that tbe order appealed from cannot be sustained. Tbis conclusion is amply sustained by adjudicated cases in other states. Clay v. Pennoyer Creek Imp. Co. 34 Mich. 207; Fox v. Holcomb, 34 Mich. 300; Chicago & Mich. L. S. R. Co. v. Sanford, 23 Mich. 418; Smith v. C. & W. I. R. Co. 105 Ill. 511-517. Eor these reasons tbe respondent’s motion to dismiss tbe appeal must be denied. Appearance before tbe commissioners, and taking an appeal to tbe circuit court from their award, did not waive tbe jurisdictional defects as to tbe subject matter in tbe proceedings. 2. Tbe question whether sec. 1846, R. S., is constitutional, for tbe reason that it provides for giving notice of tbe time and place of bearing tbe petition to resident land-own [394] ers by publication instead of by personal service, was argued by counsel. The statute provides that notice “may be served personally or at the last and usual abode of such owners and parties interested, not less than five days before such hearing, or by publication in some newspaper to be designated by said court or judge, not less than ten days before the date fixed for the hearing of such petition.” The statute undoubtedly gives the petitioner the right to give notice in either of the methods specified, and by publication on resident as well as nonresident owners, in case the court or a judge thereof shall so provide in the order. There is no constitutional requirement that we are aware of which prevents notice from being given by publication. Mr. Lewis, in his work on Eminent Domain, sec. 367, says: “ In regard to the kind of notice which will satisfy the requirements of the constitution in proceedings to take land for public use, the authorities almost universally hold that notice by publication or by posting is sufficient, even with respect to persons residing within the jurisdiction where the proceedings are pending; ” and there cites a great number of cases to that effect. In Seifert v. Brooks, 34 Wis. 443, no notice whatever was provided for by the act, but that case, as wéll as State ex rel. Flint v. Fond du, Lac, 42 Wis. 287, were both cases of proceedings by a municipal corporation to take lands for public use, and substituted service on resident owners was held insufficient because the constitution (art. XI, sec. 2) provides: “ 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.” In the case of lands required for the main line of a railway company, in Wisconsin Cent. R. Co. v. Cornell University, 52 Wis. 540, 541, it is said that “the legislature have evidently determined for themselves the necessity of taking 100 feet for a proposed right of way. As to the 100 feet, [395] the legislature have obviated proof of tbe necessity, or, rather, have furnished a conclusive presumption of it, by a legislative fiat?' The proceedings in such a case as this are no doub.t amendable, but, as .new notice will have to be given, it-will probably be desirable to commence de ,novo. By the Court.— The respondent’s motion to dismiss the appeal is denied, and the order appealed from is reversed, and the cause is remanded to the circuit court for further proceedings according to law.