Kessler v. Thompson

• Decision Date: 17 January 1956
• Docket Number: No. 7541,7541
• Citation: 75 N.W.2d 172
• Parties: Christ KESSLER, Plaintiff and Respondent, v. Sivert W. THOMPSON, Commissioner of the State Highway Department, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 172

75 N.W.2d 172

Christ KESSLER, Plaintiff and Respondent, v. Sivert W. THOMPSON, Commissioner of the State Highway Department, Defendant and Appellant.

No. 7541.

Supreme Court of North Dakota.

Jan. 17, 1956.

Rehearing Denied March 6, 1956.

Syllabus by the Court

1. The State Constitution is not a grant but a limitation on legislative power, so that the legislature may enact any law not expressly or inferentially prohibited by the constitution of the state or nation.

2. The courts will presume in favor of the constitutionality of a law until the contrary clearly appears.

3. A statute will, if possible, be so construed as to render it valid.

4. Court should not declare a statute void unless its invalidity is, in the court's judgment, beyond reasonable doubt.

5. Due process of law does not require a proceeding according to the common law or according to any particular form. Matters of procedure are subject to legislative regulation provided the essential elements of due process are preserved.

6. Procedure in eminent domain by a civil action is not exclusive insofar as the acquisition of rights of way for highway purposes is concerned.

7. Under Section 24-0118, NDRC 1953 Supp., the state highway commissioner may determine the necessity for the taking of private property for highway use. Under Section 24-0510, NDRC 1943 the county commissioners declare the necessity for the taking of land. But the determination in each case is not final. The owner of the property sought to be taken, unless waived, has a right of appeal. Section 24-0722, NDRC 1943, and Section 24-0123, NDRC 1953 Supp.

8. The owner of property sought to be condemned for highway use may in the notice of appeal challenge, not only the amount of the damages awarded, but the necessity for the taking, or may assert any grounds available to him, contesting either the necessity for the taking or the amount of the award. The issue of necessity for the taking is determined by the court without a jury and the issue of damages must be submitted to a jury, unless waived.

9. The owner of property sought to be taken for highway use retains title to the property, enjoyment and control thereof until the time for appeal has expired, and if he appeals within the thirty-day period provided by statute, he retains title, control and enjoyment of the property until final determination of such appeal. Section 24-0122, NDRC 1953 Supp.

10. The fixing of the procedure for acquisition of property by eminent domain lies in the discretion of the legislature subject to the constitutional limitations guaranteeing the rights of the owner.

11. The primary test of the validity of a statute prescribing the procedure to be followed in an acquisition by eminent domain is, of course, based upon its constitutionality, and if adequate means are provided to protect the right to determine the necessity for the taking and to just compensation, and sufficient legal machinery provided for the expeditious and impartial determination of these issues, in accordance with constitutional requirements, the law providing for the procedure is constitutional and valid.

12. Under the statutory procedure challenged in this action, Sections 24-0119, 24-0120, 24-0121, 24-0122, NDRC 1953 Supp., and Section 24-0716, NDRC 1943, the owner of property sought to be condemned, by appeal, may procure a judicial determination of any issue he may raise by a trial to the court and to a jury.

13. Since the procedure challenged affords the owner of the property sought to be condemned for highway use the right of appeal and a trial upon the necessity for the taking by court, and also upon the adequacy of the award of damages by a jury, unless waived, and during the time provided for appeal and thereafter if an appeal is taken until final determination thereof, the owner retains title, enjoyment and control of the property, the constitutional requirements of Sections 13 and 14 of the North Dakota Constitution are thereby satisfied and preserved.

14. Waiver is the intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim or privilege, which except for such waiver, the party would have enjoyed.

15. Where the owner of property sought to be taken for highway use makes a special appearance before the board of county commissioners and challenges the jurisdiction of the board over his person and property and therein states that the special appearance is made to preclude any claim or assertion that he has waived his constitutional rights to have the question of the necessity of the taking judicially determined and his right to a jury trial to determine the just compensation for the taking of his property, and thereafter commences an action to enjoin the taking of the property on the theory that the statutory procedure employed by the state highway commissioner is unconstitutional, he preserves his right of appeal. Failure to establish that the statutes challenged in his action to enjoin the state highway commissioner are unconstitutional does not constitute a waiver of the right of appeal and he may assert the same within thirty days from the entry of final judgment in such action.

Leslie R. Burgum, Atty. Gen., Vernon R. Pederson, Sp. Asst. Atty. Gen., for defendant and appellant.

Kelsch & Scanlon, Mandan, for plaintiff and respondent.

JOHNSON, Judge.

The plaintiff brought this action to enjoin the defendant from carrying on certain pending proceedings to condemn land owned by him for highway purposes needed as a part of Project F-694(1), consisting of 4.01 acres in the Southwest Quarter (SW 1/4) Section 12, Township 144 North of Range 88, Mercer County, North Dakota, and designated as parcel number 52.

The defendant employed the statutory procedure set forth in Chapters 24-01, NDRC 1943, as amended in the 1953 Supplement, and 24-07, NDRC 1943 in his attempt to acquire the plaintiff's land for highway purposes.

The facts were stipulated and are not in issue. The plaintiff pleads a great many facts which he asserts show that it is neither feasible nor necessary to take parcel number 52 from him for highway purposes. These alleged facts form a part of the plaintiff's general challenge to the constitutional validity of the procedure used by the defendant in his attempt to acquire the real property involved. The plaintiff predicates his cause of action on the theory that Sections 24-0119, 24-0120, 24-0121 and 24-0122, NDRC 1953 Supp. and Section 24-0716, NDRC 1943 violate Sections 13 and 14 of the North Dakota Constitution. That is the sole question presented on this appeal.

The trial court issued a temporary restraining order against the defendant on the 24th day of March 1955, pending hearing on an order to show cause set for March 29, 1955. Upon the hearing on the order to show cause, the court issued its temporary restraining order enjoining the defendant, his agents and employees, and each and all of them pending hearing in the action.

'from entering or trespassing upon the plaintiff's lands (described in this complaint) and from committing any waste thereon, until the defendant has acquired the title to parcel 52 of 4.01 acres and just compensation for the taking thereof has been determined in accordance with the Constitution and statutes of this state and the money has been paid into court as required by law. * * *'

Thereafter the defendant answered the plaintiff's complaint denying the allegations thereof except as admitted by statement of facts stipulated and requested a dismissal of the action.

The plaintiff by his attorneys made a special appearance before the board of county commissioners of Mercer County on the 7th day of January, 1955, for the sole and only purpose of objecting to the jurisdiction of the board of county commissioners over the subject matter and the person of the plaintiff, and challenged their right to ascertain and determine the damages and make the award to the plaintiff. The special appearance is pleaded in the complaint and is attached thereto as an exhibit. It is unnecessary to set forth in detail the contentions of the plaintiffs as outlined in the special appearance. Generally it challenges both the right to determine the necessity for the taking and the awarding of damages. It sets forth that under Section 14 of the North Dakota Constitution the plaintiff is entitled to a judicial determination of the issue of necessity for the taking and of a jury trial on the issue of just compensation, unless a jury is waived; that a jury trial has not been waived. It is also asserted that under Section 32-1507, NDRC 1943 the power of eminent domain can only be exercised in a civil action in district court of the county in which the property or some part thereof is situated; that the legislature has no power to vest jurisdiction in the commissioner of the State Highway Department or the board of county commissioners to judicially determine the question of necessity or issue of just compensation, and that if Sections 24-0118, 24-0127, NDRC 1953 Supp. and 24-0510 and 24-0716, NDRC 1943, are so construed, they violate Section 14 of the North Dakota Constitution and are null and void; that the issuance of an order declaring the taking necessary is preliminary only and does not constitute a judicial determination of the necessity for the taking or the issue of just compensation under the statutes just mentioned; that on the contrary under Section 24-0123, NDRC 1953 Supp. there is conferred upon the landowner a right of appeal, and that under the sections mentioned there is no provision that the official discretion is final or conclusive. It is also stated, that the special appearance is made,

'to preclude any claim or assertion (1) that they (persons mentioned in the special appearance) have waived their constitutional rights to have the question of the necessity of the taking judicially determined; (2) that they have waived their...