City of Minneapolis v. Wilkin

• Decision Date: 10 January 1883
• Citation: 14 N.W. 581,30 Minn. 140
• Parties: City of Minneapolis v. Mary J. Wilkin. (1st Case.)
• Court: Minnesota Supreme Court

14 N.W. 581

30 Minn. 140

City of Minneapolis v. Mary J. Wilkin. (1st Case.)

Supreme Court of Minnesota

January 10, 1883

On the petition of the relator, Mary J. Wilkin, a writ of certiorari was issued from this court, directed to the district court for Hennepin county.

From the return to the writ, it appears that on May 4, 1882, the common council of the city of Minneapolis appointed commissioners to appraise and condemn so much of block 4 in Harmon's addition to Minneapolis as lies between Hawthorne and Linden avenues and Twelfth and Thirteenth streets, for the purposes of a public park. On June 21, 1882 the commissioners made their report to the common council, in which they awarded to relator $ 12,292.50 as compensation for the taking of land belonging to her, and which report was confirmed on August 2, 1882. Relator having appealed to the district court, and the only objection raised being the inadequacy of the compensation, the court appointed three commissioners to reappraise the land. Two of the commissioners met on November 2, 1882, and, upon relator and respondent entering into a written stipulation waiving the appearance of the third, proceeded to reappraise the land and assessed relator's damages at $ 13,500. On the presentation of this award to the district court, the relator objected to its confirmation, for the reasons mentioned in the opinion. The objections were overruled and the award confirmed by the court, Lochren, J., presiding, and thereupon this writ was sued out.

The proceedings are affirmed.

Merrick & Merrick, for relator.

E. M Wilson, for respondent.

OPINION

Mitchell, J. ^[*]

Proceedings were instituted by the city of Minneapolis, under chapter 10 of the city charter, (Sp. Laws 1881, c. 76,) for the appropriation and condemnation of relator's land for the purposes of a public park. The report of the commissioners appointed to assess her damages having been confirmed by the city council, she appealed to the district court, who, having confirmed the proceedings in other respects, appointed three disinterested freeholders residents of the city, to reappraise her damages. Only two of these commissioners having appeared and qualified at the time and place fixed by the court for their meeting, the parties stipulated in writing that these two might proceed and assess appellant's damages and report the same to the court, and that such proceedings should have the same force and effect as if all three commissioners had qualified and acted. Thereupon the two proceeded and acted, and made their report to the court, which, against the objection of appellant, was confirmed. These proceedings are now brought here for review on certiorari. No question is raised here as to the regularity in form of the proceedings before the city council, and hence it will only be necessary to consider those in the district court after the matter was brought there on appeal. The grounds upon which relator claims that the proceedings should be set aside are substantially three: (1) That the report of the commissioners is void, because only two acted; (2) that the act under which these proceedings were had is unconstitutional; (3) that improper evidence was received by the commissioners, and that their report is against the evidence.

1. The provision of the statute requiring the appointment of three commissioners is not one that goes to the jurisdiction of the court over the subject-matter, but is one for the benefit of the land-owner. He may waive any such statutory or constitutional provision made for his benefit. So far as the proceedings are in invitum, the statute must be strictly complied with; but the court having jurisdiction of the subject-matter, and the appeal being regularly pending, it was entirely competent for the relator to waive the statutory tribunal, and consent to an assessment of her damages by two commissioners or any other tribunal she saw fit. Had the law given her the right to a jury, she could have waived it and consented to an assessment by the court or a referee. Dillon on Mun. Corp. § 618, (§ 482;) Buel v. Trustees of Lockport, 3 N.Y. 197.

2. The constitutionality of the law under which these proceedings were had is attacked on various grounds. The first is that it deprives the land-owner of the right to have his damages assessed by a jury, and fails to provide another impartial tribunal in its place. That in such proceedings the land-owner is not entitled to have his damages assessed by a jury is settled by the case of Ames v. Lake Superior & Mississippi R. Co., 21 Minn. 241. The only objection made to the tribunal provided by this act is that it is not impartial, because composed of freeholders, and hence, presumably, tax-payers of the city. It is competent for the legislature to provide that where the interest of a person is merely that of a corporator or tax-payer of a municipal corporation, it shall constitute no disqualification as juror, judge, or commissioner in a case where the corporation is a party. This does not infringe upon the constitutional right of a party to an impartial tribunal to hear his cause. Public policy and the necessities of the case require that this should be so. The ground upon which such rulings is usually placed is that such an interest is so remote, indirect, and slight that it may be fairly supposed...