Albin v. Consolidated School District

• Decision Date: 20 July 1921
• Docket Number: 21782
• Citation: 184 N.W. 141,106 Neb. 719
• Parties: FRANK ALBIN ET AL., APPELLEES, v. CONSOLIDATED SCHOOL DISTRICT, APPELLANT
• Court: Nebraska Supreme Court

184 N.W. 141

106 Neb. 719

FRANK ALBIN ET AL., APPELLEES, v. CONSOLIDATED SCHOOL DISTRICT, APPELLANT

No. 21782

Supreme Court of Nebraska

July 20, 1921

APPEAL from the district court for Richardson county: JOHN B. RAPER JUDGE. Affirmed.

AFFIRMED.

John B Barnes, Jackson B. Chase and John Wiltse, for appellant.

Kelligar Ferneau & Gagnon, contra.

Heard before MORRISSEY, C.J., DAY, DEAN, FLANSBURG, LETTON and ROSE, JJ., ALLEN and REDICK, District Judges. ALDRICH, J., DEAN, J., dissenting.

OPINION

REDICK, District Judge.

This is an action in equity brought by appellees to enjoin the school district, appellant, from taking possession of a tract of five acres of land sought to be condemned for a school site under chapter 244, Laws 1919, and is submitted upon an agreed statement of the case, wherefrom it appears that on May 1, 1920, the school board having passed the required resolution declaring the necessity of appropriating the tract in question, filed its petition in due form in the county court of Richardson county, reciting its inability to purchase the land by agreement with the owners, and asking that three freeholders of the district be appointed to assess the damages to such owners by reason of the taking. The county judge thereupon appointed three appraisers and ordered them to report for duty May 7, 1920, [184 N.W. 142] at 10 o'clock a. m. Notice of such appointment was served upon the appraisers May 3, 1920, requiring them to appear at the time stated, and to make their report thereafter in writing on or before May 20, 1920. On May 3, 1920, there was served upon appellees a writ, duly issued under the hand and seal of the county judge, notifying them of the filing of said petition, and that "three appraisers which are appointed by the court will make report of the damages sustained by the said Frank Albin and Ida M. Albin on or before May 20, 1920, and that said matter is set for hearing in the county court room, at Falls City, Nebraska, on May 20, 1920, at 1 o'clock p. m."

The appraisers, having taken the oath as required, made their appraisement, assessing the damages at $ 300 an acre, or $ 1,500. No notice of the time and place of meeting for the purpose of assessing the damages was served upon appellees, but it appears that they knew who the appraisers were, and were well acquainted with them, and learned that an appraisement had been made some time before May 20, the day set for the hearing; and on that day appellees each filed objections to the proceedings, alleging that their property was sought to be taken without due process of law, and that said act is unconstitutional. On the same day the school district filed its acceptance of the appraisement and deposited $ 1,500 in court subject to order of appellees. At the hearing appellees offered evidence that no notice had been served of the time and place of the assessment of damages, which was received on May 25, to which date the hearing had been adjourned. They also offered evidence as to the interest of appraisers, and value of the land taken, to which objection was sustained. The court thereupon overruled all objections of appellees, and in August, 1920, when appellant was about to take possession of the land, this action was brought, resulting in a permanent injunction against the condemnation proceedings, and the school district appeals.

The constitutionality of the act is attacked on the ground that it does not provide any notice to the landowner of the time and place of meeting at which the appraisers will assess the damages, and therefore no opportunity was afforded appellees to be heard upon that question before filing of the report. The act in question, after providing for the filing of a petition with the county judge, proceeds as follows:

"Section 3. Thereupon notice shall issue, under the seal of the county court, to the persons interested in the property sought to be taken, of the filing of the petition and of the time and place fixed for a hearing thereon. Such notice shall be served by delivering to each of the persons interested, when his residence is known, a certified copy thereof, and the service shall be proved by affidavit. * * * The hearing on the petition may not be had for at least ten days after the completion of service.

"Section 4. At the time the petition is filed, the county judge shall appoint three disinterested freeholders of the school district in which the real estate is situated, who, after being duly sworn to perform the duties of their appointment with fidelity and impartiality, shall assess the damages that may be sustained by reason of the taking of the property and on or before the day set for the hearing file a report in writing with the county judge."

Section 5 then provides that upon payment of the amount of the appraisement the district may take immediate possession. And section 6 provides: "If the assessment shall not be satisfactory to the board, other and different appraisers may, on application of the board, be appointed to assess the damages."

It will be noted that the only notice required to be served upon the property owners is "of the filing of the petition and of the time and place fixed for a hearing thereon," and that the appraisers are to be appointed at the time of the filing of the petition, and are to make their report assessing the damages to the property owners on or before the day set for the hearing. Neither the statute nor the notice fixes any time or place where the appraisers shall meet for the purpose of assessing the damages.

The precise question for determination, therefore, is whether or not the failure of the statute to provide notice to the owner of the meeting of the appraisers, and thus give him an opportunity to be heard before the filing of the report, renders the act obnoxious to section 3 of the Bill of Rights, providing: "No person shall be deprived of life, liberty, or property, without due process of law." A precise definition of the term "due process of law" has not been attempted by the courts, and wisely so, by reason of the multifariousness of its application; but, although its limitations are not subject to accurate definition, the courts are of one mind upon the proposition that in a general sense it means the right to be heard before some tribunal having the jurisdiction to determine the question in dispute, and has its most complete and vigorous application to proceedings in their nature judicial. The point in issue has been before this court a number of times, and we will proceed to examine some of the cases relied upon to sustain appellee's contention that the act is unconstitutional.

The case of McGavock v. City of Omaha, 40 Neb. 64, 58 N.W. 543, was an action to recover damages for a change of the grade of the street. The charter of the city of Omaha, under which such change of grade was attempted to be made, required the appointment of appraisers to assess damages, and provided for an appeal from the award which should be the exclusive remedy, but contained no provision for notice to the property owner, with reference to which legislation Harrison, J., remarked:

"Here is conferred the power and authority to one party to appoint or form the tribunal or body, take, hear, or examine the evidence, and assess the amount of recovery, without any notice to other parties concerned, or any provision for them being in any manner represented in the proceedings, and providing for an appeal from an adjudication of their rights about which they can have no knowledge, and making the remedy by appeal exclusive. Can this be done? We are satisfied it is within the inhibition of the provisions of the Constitution, as an attempt to appropriate or damage property 'without due process of law,' and will not bar parties of the right to an action for the damages sustained, and the fact that the legislature has failed to provide for any notice cannot bar the right to compensation."

The court, however, as noted by Letton, J., in Enterprise Irrigation District v. Tri-State Land Co., 92 Neb. 121, 143, 138 N.W. 171, restricted their holding to the proposition that in such case an action for damages would not be barred.

In Wilber v. Reed, 84 Neb. 767, 122 N.W. 53, the validity of a portion of section 8605, Ann. St. 1907, was under consideration. By that section the city of Beatrice and others of its class were authorized to appropriate private property for the purpose of public parks, after providing for the appointment of appraisers, and notice to the owners of the time of making the assessment for damages, and contained the following:

"At the next regular meeting of the council after such assessment, the council may vacate such assessment, if unjust, and, if so vacated, or in case of a failure to obtain the assessment, for any cause, the council by resolution may appoint other three assessors; and, in that case, such new assessors shall, on the day following their appointment, without further notice, meet at the place fixed by the ordinance for meeting of the assessors, and * * * shall proceed as provided for the first board of appraisers."

The matter proceeded to the point where the appraisers met for the purpose of making their appraisement, when they were restrained by an order of the district court. Subsequently the restraining order was dissolved, and the council proceeded under that part of the section above quoted to appoint three other appraisers, who made the appraisement and thereafter plaintiff brought the action to enjoin the officers of the city from taking possession of the property upon the ground that quoted portion of said section was unconstitutional in failing to provide notice to the property owner of the time and place of meeting of...