Edwards v. City of Cheyenne, 623

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtPOTTER, JUSTICE.
Citation19 Wyo. 110,114 P. 677
Docket Number623
Decision Date03 April 1911

114 P. 677

19 Wyo. 110


No. 623

Supreme Court of Wyoming

April 3, 1911

[114 P. 678] [Copyrighted Material Omitted] [114 P. 679]

Rehearing Denied April 13, 1912, Reported at: 19 Wyo. 110 at 169.

ERROR to the District Court, Laramie County; HON. CARROL H. PARMELEE, Judge.

The material facts are stated in the opinion.

Judgment affirmed.

Kinkead & Mentzer, for plaintiffs in error.

A party who stands upon a general demurrer admits all the material facts well pleaded. (State v. Irvine, 14 Wyo. 318; Spaulding v. Douglas, (Neb.) 122 N.W. 889; State v. Grant, 12 Wyo. 1.) If sufficient facts are set out in the petition to constitute a cause of action upon which the plaintiff would be entitled to any relief the sustaining of a demurrer thereto is error. (Summers v. Ins. Co., 12 Wyo. 381.) A petition in an action to quiet title which alleges possession in the plaintiff under a claim of title in fee and that defendant claims an estate or interest adverse to plaintiffs is good as against a demurrer. (R. S. sec. 4104; Durell v. Abbott, 6 Wyo. 262.) A day in court is a matter of right in judicial proceedings, but administrative proceedings rest upon different principles. The party affected by them, however, may test their validity by a suit instituted for that purpose. (Weimer v. Dunbury, 30 Mich. 200.) The finding of an administrative officer on a question of law is not conclusive upon the courts, and an action will lie by injunction or otherwise by a party thereby aggrieved. (Am. &c. v. McAnnulty (U. S.) 47 L.Ed. 90.) Property sought to be condemned by a city must be necessary for the purposes of the city. (Pocanto v. Bird, (N. Y.) 29 N.E. 246; People v. Humphrey, 23 Mich. 471.) A proceeding instituted to condemn property for both public and private uses indiscriminately cannot be sustained. (107 N.W. 405; Ry. Co. v. Galt, (Ill.) 23 N.E. 425, 24 N.E. 674; Gaylord v. Goodlet, (Tenn.) 24 Am. Dec. 546.) All conditions of an eminent domain statute must be complied with, and when a municipality seeks to condemn land the municipal records must show due adoption of all necessary resolutions. (In re Street, 109, N.Y.S. 950; Ry. Co. v. Macloon, (Wis.) 116 N.W. 897; In re Ry. Co. (Wis.) 116 N.W. 841; Post v. Ry. Co. (Vt.) 69 A. 156.) Every reasonable doubt as to the authority to condemn must be resolved in favor of the land owner. (97 Minn. 420.) The charter of a city is a public law of which the courts take judicial notice. (Naylor v. McCullough, (Ore.) 103 P. 204.) If the steps required to be taken by a city for the condemnation of property are not taken the city cannot exercise the authority. It was necessary for the defendant city to pass an ordinance for the taking of the property of plaintiffs to render the condemnation proceeding valid. (City v. Wooton, 28 Ia. 571; State v. Burlington, 45 Ia. 87; Dillon Mun. Corp. secs. 610, 643, 245; Roche v. Dubuque, 42 Ia. 254; Kendig v. Knight, 60 Ia. 32; Tallent v. Burlington, 39 Ia. 546; Zalesky v. Cedar Rapids, 118 Ia. 714; Ottumwa v. Chinn, 75 Ia. 405; Rochester v. Bloss, (N. Y.) 77 N.E. 794; Rochester v. Gleichauf, 82 N.Y.S. 750.) Municipal corporations can exercise only the authority granted by their charter, or legislative acts creating them, or necessarily implied in such grant or incident thereto; and reasonable doubts about the existence of authority are to be resolved against the corporation. (Brockman v. Creston, 79 Ia. 587; Hanger v. Des Moines, 52 Ia. 193; Bicker v. Water Works, 79 Ia. 419; Merriam v. Woody, 25 Ia. 163; Clark v. Des Moines, 19 Ia. 199; Aldrich v. Pain, 106 Ia. 461; Cherokee v. Perkin, 118 Ia. 405; Water Co. v. Cedar Rapids, 118 Ia. 234; Schneider v. Rochester, 160 N.Y. 165; Rochester v. Bloss, 185 N.Y. 42.) The municipal corporation must show that it has complied with the statutory or charter requirement of a resolution or a formal ordinance. (15 Cyc. 827, Whitehead v. Denver, (Colo.) 56 P. 913; In re Buffalo, 78 N.Y. 362; St. Louis v. Franks, 78 Mo. 41.) Every essential prerequisite to jurisdiction in condemnation proceedings must be strictly complied with, and this must affirmatively appear on the face of the proceedings to give them validity. (15 Cyc. 812; Crandall v. Ry. Co., (Ia.) 103 N.W. 778; Ry. Co. v. Reed, 52 Ind. 357; Derby v. Ry. Co., 119 Mass. 516; Binney v. Canal Co., (U. S.) 8 L.Ed. 917; Sevennes v. Village, (Wis.) 91 N.W. 121; N. P. & Co. v. Portland, (Ore.) 13 P. 705.)

Section 2915, R. S. 1899, is inapplicable to special charter cities and any proceeding brought thereunder by the City of Cheyenne is absolutely void. The four classes of cities and towns authorized by the constitution to be incorporated under a general law were not intended to include special charter cities theretofore organized. The power to condemn private property should be strictly construed and the prescribed mode for its exercise strictly followed. (Schneider v. Rochester, 160 N.Y. 165; In re Buffalo, supra; Lewis Em. Dom., secs. 254, 341; Cooley's Const. Lim. (6th Ed.) 241, 648; Adams v. Ry Co., 10 N.Y. 81; People v. Kniskern, 54 N.Y. 52; Ry. Co. v. South, (Ohio) 84 N.E. 418; Minturn v. Larue, 23 How. (U.S.) 435; Bloom v. Xenia, 32 O. St. 118.) If it is doubtful whether the statute confers the authority to condemn, the doubt must be resolved against the petitioner. (107 N.W. 407; Ry. Co. v. Fairibault, 23 Minn. 67; Fletcher v. Ry. Co., (Minn.) 68 N.W. 1085; Telephone Co. v. Ry. Co., 120 F. 363; Holyoke Co. v. Lyman, 15 Wall. 500; New Jersey Co. v. Morris Co., (N. J.) 1 L. R. A. 133.)

The scheme laid down in section 2915 for condemnation of land contemplates a compulsory board of arbitration within the meaning of section 28 of Article 5 of the Constitution, and no right of appeal having been provided by statutes, the same is null and void as in violation of said constitutional provision. (Memphis v. Burlington, (Ala.) 18 L. R. A. 166; Ry. Co. v. County, 27 Ill. 50; Flanary v. Kane, (Va.) 46 S.E. 312; Odel v. Wharton, (Tex.) 27 S.W. 123.)

The functions of a board of appraisers provided for in section 2915 are judicial in their nature, and the statute therefore violates sections 1 and 10 of Article 5 of the Constitution of the State. (Rev. Stat. 1899, sec. 3084.) If the functions of said appraisers are not judicial but administrative, ministerial or quasi judicial only, then section 2915 violates Article 2 of the Constitution, in that legislative and administrative duties are imposed upon the district judge in the matter of the appointment of appraisers. The power of appointment is necessarily executive and cannot be exercised by the judiciary, except for the appointment of subordinate officers and employees immediately connected with the court and such as are needed to aid it in the proper administration of its functions. A sovereign power conferred upon any one branch or department of government cannot be delegated by that branch to any other. (State v. Young, 100 Minn. 499; In re Supervisors, 114 Mass. 247; County v. Mitchell, 97 Md. 330; State v. Barker, 116 Ia. 96; Beasley v. Ridout, 94 Md. 641; Houseman v. Montgomery, 58 Mich. 364; In re Weston, 28 Mont. 207; State v. Towns, 153 Mo. 91; State v. Mayor, 103 Ia. 76; Cooley on Tax., 2nd Ed., 61, 65.)

The condemnation procedure provided for in sections 2915 and 3084 does not constitute due process of law and is therefore void. (Wyo. Const., Art. 1, sec. 6; U. S. Const., 14th Amendment, sec. 1) The best that a court can do is to say in each case as it arises whether a particular act or provision is due process of law. (3 Words & Phr. 2227; 43 L. R. A. 727; 70 N.Y.S. 1050; 74 N.Y. 183; 9 L. R. A. 152; 46 N.W. 315; 15 Fla. 410; 76 Ala. 603.) An act which the legislature may think proper to pass in the uncontrolled exercise of its power is in no sense due process of law required by our Constitution. (12 N.Y. 202; 45 N.Y. 356; Davidson v. Board, 86 U.S. 104; Parks v. Board, 61 F. 436; State v. Mayor, 703 Ia. 86; Ry. Co. v. Minn., 134 U.S. 457; Kilburn v. Thompson, 103 U.S. 168.)

So far as section 2915 and 3084 affect or attempt to enlarge upon the authority of cities and towns in the matter of condemnation for water works purposes they were repealed by Chapter 27 of the Laws of 1890-91, and by previous legislation of the Territory. (Const., Art. 21, sec. 3; Rev. Stat. 1899, sec. 1704, 1713.) Without express words of repeal a previous statute will be held to be modified by a subsequent one, if the latter was plainly intended to cover the whole subject embraced by both and to prescribe the only rules to govern the subject. (Tracy v. Tuffly, 134 U.S. 206; Institute v. City, (N. Y.) 75 N.E. 1119; Murdock v. Memphis, 87 U.S. 590; Ry. Co. v. Newcastle, (Ind.) 87 N.E. 1067.) While repeals by implication are not favored, it is well settled that where two acts are not in all respects repugnant, if the latter act covers the whole subject of the earlier one and embraces new provisions plainly showing that it was intended as a substitute for the first, it will operate as a repeal. (King v. Connell, 106 U.S. 395; U. S. v. Tynen, 11 Wall. 88; Brome v. County, 31 Neb. 362; State v. Elevator Co., (Neb.) 106 N.W. 979; Nichol v. St. Paul, 80 Minn. 415; Sutherland Stat. Const. sec. 154; Clark v. Baxter, (Minn.) 108 N.W. 838; Finding v. Foster, (Ind.) 84 N.E. 529; Thomas v. Butler, 139 Ind. 245; Hadley v. Musselman, 104 Ind. 459; 26 Ency. L. 731-735; Lewis' Sutherland Stat. Const. secs. 269, 271; In re Press Co., (N. Y.) 79 N.E. 1006; Freeman v. People, (Ill.) 89 N.E. 667; Allen v. People, 84 Ill. 502.)

The amount allowed by the appraisers did not constitute just compensation. A judgment by a state court, even if authorized by statute, whereby private property is taken for public use without just compensation, is not due process of law under the 14th amendment of the United States Constitution. (Ry. Co. v. Chicago, 166 U.S. 241.) The question of...

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