Walker v. City of Hutchinson
| Decision Date | 11 June 1955 |
| Docket Number | No. 39782,39782 |
| Citation | 284 P.2d 1073,178 Kan. 263 |
| Parties | Lee WALKER, Appellant, v. CITY OF HUTCHINSON, Reno County, Kansas, a municipal corporation; T. E. Chenoweth, City Manager of said City; Robert G. King, Mayor and Member of the City Commission of said City; Charles N. Brown, Jerry Stremel, R. C. Woodward and C. E. Johnson, Members of the City Commission of said City, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
In an action to enjoin a city from entering upon real estate taken by it under a proceeding in eminent domain, the record is examined, and it is held, that G.S.1949, 26-202, which provides that the commissioners appointed by the judge of the district court shall give any owner of the property sought to be taken ten days' notice by publication in the official city paper that at the time fixed by such notice the commissioners will appraise the value of the lands taken and assess the other damages done to the owners of such property, does not deprive such owner of due process of law and is not unconstitutional.
A. Lewis Oswald, Hutchinson, argued the cause, and William L. Mitchell, and Patrick H. Thiessen, Hutchinson, were with him on the brief for appellant.
Fred C. Littooy, City Attorney, Hutchinson, argued the cause, and Bill R. Cole, Asst. City Atty., Hutchinson, was with him on the brief for appellees.
This was an action in which the plaintiff Lee Walker sought an injunction against the defendant city to prevent an alleged trespass on his real estate. The relief sought was denied by the trial court and plaintiff has appealed.
Insofar as need be noticed plaintiff alleged that he owned certain described real estate in the city of Hutchinson and that on April 12, 1954, the city, by its officials, commenced proceedings in the district court to condemn property for the acquisition of right-of-way for opening, widening and extending portions of named streets in the city; that plaintiff had never been notified in any manner that the city desired his real estate nor had he ever been served with summons nor given any personal notice that the city had filed the proceeding for the purpose of taking a part of his real estate; that the pretended right of the city to take the real estate owned by the plaintiff rested upon the authority of G.S.1949, 26-201 and 26-202, which statutes are void and of no force because they attempt to vest the power in the city to take property without due process of law; that the only notice to an owner of real estate, under those statutes, is by publication and is not sufficient under the due process clauses of the United States Constitution, Amend. 14 and the State Constitution Bill of Rights, § 18; that plaintiff had no actual notice or any reason to know the city sought to condemn and take his real estate until the middle of August, 1954, unless it can be said the single legal publication, published once in a named newspaper gave him notice, and that such single published notice was not sufficient to satisfy the requirements of the due process clauses of the above constitutions. It was further alleged that the city was entering upon plaintiff's real estate for the purpose of building a highway across it, all in disregard of plaintiff's rights and that he was entitled to an order enjoining the city from so doing, and he prayed accordingly.
The gist of the defendant's answer was that the city was proceeding under the above statutes, and that it instituted proceedings in eminent domain and that the commissioners appointed by the judge of the district court gave notice by publication in the manner prescribed by G.S.1949, 26-202 which notice specifically named the plaintiff, described the portion of his real estate being condemned for a public street and which notice was published more than ten days prior to April 27, 1954, the date set forth in the notice for the meeting of the commissioners for assessment of damages and appraisal of the lands taken; that the notice by publication and the procedure followed was authorized by the above statutes and was legal and valid. Attached to the answer was a copy of the notice published in the Hutchinson News-Herald, the official city paper, on April 14, 1954, which shows that notice of condemnation was given to Lee Walker and others that an application had been made requesting the district judge of Reno county to appoint commissioners to make an appraisement of lands taken under and by virtue of G.S.1949, Ch. 26, Art. 2, and describing fourteen tracts of land in the city and that the judge had appointed three commissioners who would meet at a specified place on April 27, 1954, then and there to commence and proceed with the duties imposed upon them by law.
The plaintiff's reply admitted the material facts pleaded and denied the legal conclusion that the mentioned statutes did not violate constitutional provisions as to due process.
Details of the trial need not be noted. The trial court prepared a memorandum decision which covered rather fully the questions of constitutionality. The journal entry of judgment discloses the trial court heard the evidence, examined the pleadings and briefs filed and on November 1, 1954, found that G.S.1949, 26-202 was constitutional; that the city of Hutchinson acted pursuant to it; that plaintiff had not been deprived of his property without due process of law and it denied plaintiff the relief for which he prayed and rendered judgment for the defendants.
The plaintiff perfected his appeal specifying as error that the trial court erred in holding G.S.1949, 26-202 constitutional and in denying the injunction sought.
The question of constitutionality turns on the first sentence of the last mentioned statute, which reads:
'The commissioners appointed by the judge of the district court shall give any owner and any lienholder of record of the property sought to be taken at least ten days' notice in writing of the time and place when and where the damage will be assessed, or by one publication in the official city paper, and at the time fixed by such notice shall, upon actual view, appraise the value of the lands taken and assess the other damages done to the owners of such property, respectively, by such appropriations.'
For purposes of information we note the above statute was amended by the legislature in 1955 by the enactment of Senate Bill No. 313, c. 213.
In his brief the appellant first directs attention to and quotes from 12 Am.Jur. 267, where it is stated that the elements of due process of law are notice, and an opportunity to be heard and to defend; that it is a rule as old as the law that no one shall be personally bound until he has been duly cited to appear and has been afforded an opportunity to be heard, and that a judgment without such citation and opportunity lacks all the attributes of a judicial determination and is never to be upheld. Appellant then directs attention to the statute as quoted above and to the fact that it provides two methods for giving notice, one by at least ten days' notice in writing, the other by one publication in the official city paper, and he contends that the first method is fair and the second method unfair. It is here pointed out that he does not contend that if the second method was proper, what was done by the city did not fully meet the statutory requirement. In expanding his argument appellant stresses his age, his education and the length of time he had owned his real estate; that the three branches of the government, executive, legislative and judicial, have a duty to uphold the constitution and that it may not be amiss to consider how such an unconstitutional act was ever made part of the statutes; that in fairness the city should have given him personal notice and should not have followed the provision for publication notice; that the statute provided a right way and a wrong way and the 'wrong way' violated his constitutional rights to due process. There is no specific argument...
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