City of Madison v. Daley

• Decision Date: 29 November 1893
• Docket Number: 8,913.
• Citation: 58 F. 751
• Parties: CITY OF MADISON v. DALEY.
• Court: United States Circuit Court, District of Indiana

58 F. 751

CITY OF MADISON v. DALEY.

No. 8,913.

United States Circuit Court, D. Indiana.

November 29, 1893

Perry E. Bear and Sulzer & Bear, for plaintiff.

C. A Korbly and W. O. Ford, for defendant.

Cited the following authorities: Allen v. Jones, 47 Ind 438; Waterworks v. Burkhart, 41 Ind. 364; Dyckman v. City of New York, 5 N. Y. 434; Payne v. Railroad, Co., 46 F. 559; City of Anderson v Bain, 120 Ind. 254, 22 N.E. 323; Cooley, Const. Lim. (5th Ed.) p. 653; 2 Dill. Mun. Corp. (4th Ed.) §§ 603-605.

BAKER District Judge, (orally.)

The common council of the city of Madison, on the 4th day of January, 1893, adopted a motion 'that the committee on wharves instruct the city commissioners to condemn the property known as the 'Daley Wharf Property,' to be used for city wharf purposes.' Without further action by the common council, the city commissioners were convened made an examination of the premises, and decided in favor of condemning the wharf property for the purposes stated, and they awarded $1,500 compensation to the owners of the wharf. On the 20th day of April, 1893, the city commissioners made their written report of their action to the common council of the city of Madison in proper form. At this session of the common council the following action was taken:

'Mr. Johnson moved that the action of the commissioners be concurred in and spread on record, and the city clerk be instructed to draw an order on the treasurer for the amount as set by the city commissioners, when ordered by them and the city attorney to do so. The yeas and nays were called, and the motion carried by the following vote: Yea: Tuttle, Bishop, Williams, Johnson, Torrance, Page, and Klein,--seven. Nay: Bartram,--one.'

On the 4th day of May, 1893, at another meeting of the council, the following further proceedings in reference to this matter were had:

'The following resolution offered by Sol J. Bear was read, and on motion of Mr. Thomas adopted: 'Resolved, that the common council, now in session, accept the report of the city commissioners wherein they met on the 12th and 13th of April, 1893, to hear testimony touching the value of the property to be appropriated known as the 'Daley Wharf,' and belonging to Daley and unknown owners, and assessed a valuation on said property of $1,500, to be paid to Daley and unknown owners.' Passed May 4th, 1893.'

On the 13th of May, 1893, the defendant, George H. Daley, the owner of the wharf, took an appeal from the order of the city council condemning and appropriating it for public uses, to the circuit court, and perfected his appeal by filing a bond and a transcript of the record of said court in accordance with the statute. At the proper time the defendant, Daley, removed the cause into this court on the ground of diverse citizenship. After the appeal had been perfected, to wit, on the 20th day of July, 1893, the city council undertook to correct the record of its proceedings of the 4th day of May, 1893, by adopting a resolution which recited the former resolution, and then proceeded as follows:

'Now, therefore, be it resolved by the common council, now in session, that that part of the record referring to passage of said resolution, to wit, 'Passed May 4th, 1893,' be corrected to read as it should have read, and in accordance with the facts, as follows: 'Passed May 4th, 1893, by an unanimous vote of all the members of the common council; that is, twelve of the twelve members thereof voting 'Aye."'

In this court the defendant has filed exceptions denominated by the statute (Rev. St. 1881, § 3180) 'a written statement of his objections to the proceedings of the common council and commissioners.' These objections are substantially as follows: (1) That the city council did not refer the matter of said proposed appropriation of defendant's real estate to a proper committee to examine said matter; and no report of any such committee in favor of the expediency of referring the said proposal to condemn said real estate to said city commissioners was made before the reference thereof to them. (2) That the said council did not within 28 days after the filing of the report of the said commissioners, in which they determined to condemn said property and award $1,500 compensation to its owners, by a vote of two-thirds of said city council, on a yea and nay vote, by a resolution determine to accept said report, and make said appropriation of the defendant's property. (3) That the statute under which the city of Madison is incorporated does not, nor does any other statute of the state of Indiana, confer upon said city any statutory power to condemn and appropriate the real estate of a private citizen for a public wharf, against his consent. And the defendant has not consented to said proceedings. I will consider these objections in their order.

First. Section 3167 of the Revised Statutes of Indiana, under which the plaintiff attempted to proceed, is as follows:

'Before any matter of the opening, laying out, or altering of any street, alley, highway or water course, or of the vacation thereof, shall be referred to the city commissioners, the common council shall refer the matter to an appropriate committee, who shall examine the matter, and report at the next meeting of the common council upon the expediency of so referring; and if the common council shall determine, by a two-thirds vote, to submit the said matter to the commissioners, it shall be so ordered, and shall thereupon be referred to said commissioners, as hereinbefore provided; but no such matter shall be submitted unless so ordered by a two-thirds vote of such common council.'

Now, it is not claimed that this requirement of the statute was complied with by the common council of the plaintiff before referring the matter of the condemnation of the defendant's wharf to the city commissioners. It is contended by the counsel for the defendant that this provision of the law is mandatory, and that the preliminary reference therein required is jurisdictional. The object of this statutory requirement is twofold: (1) In order that the common council may, by the careful and deliberate investigation of one of its committees, acquire a full knowledge of all the facts and circumstances surrounding the proposed acquisition of property by the exercise of the power of eminent domain. (2) For the protection of the rights of the owner of the property which it is proposed to condemn; for the law is jealous of the rights of property holders, and adopts these formalities of procedure for their protection. With these objects in view, I will consider the language of section 3167, supra. It is that: 'Before, any matter of the opening,' etc., 'shall be referred to the city commissioners, the common council shall refer the matter to an appropriate committee,' etc. 'Shall' will be construed 'may' where no public or private right is impaired by such construction; but where the public are interested, or where the public or third persons have a claim de jure that the act shall be done, it is imperative, and will be construed to mean 'must.' The right of eminent domain--that of taking the property of a private citizen without his consent, and devoting it to the use of the general public--is an exercise of the highest act of sovereignty. It can only be called into existence by the authority of the legislature, and must be exercised in the mode and by the tribunal provided by law. This statute prescribes the mode, and I have no doubt whatever that it is mandatory. The failure of the city council to comply with it is fatal.

Second. The next objection to...