North Laramie Land Co. v. Hoffman

• Decision Date: 18 October 1923
• Docket Number: 967
• Citation: 219 P. 561,30 Wyo. 239
• Parties: NORTH LARAMIE LAND CO. v. HOFFMAN, ET AL
• Court: Wyoming Supreme Court

219 P. 561

30 Wyo. 239

NORTH LARAMIE LAND CO. v. HOFFMAN, ET AL

No. 967

Supreme Court of Wyoming

October 18, 1923

ERROR to the District Court, Platte County; WILLIAM C. MENTZER Judge.

Action by the North Laramie Land Company as plaintiff, against the Board of County Commissioners of Platte County as defendants to restrain proceedings of defendant in the location and establishment of a public road, running through and taking part of plaintiff's land. From a judgment for defendant plaintiff brings error. Other material facts are stated in the opinion.

Affirmed.

Pam &amp Hurd and M. A. Kline for plaintiff in error.

Burrell J. Cramer of counsel.

The filing of a proper petition for the establishment of a road is necessary to confer jurisdiction upon the County Board to act. Toledo Ry. Co. v. Detroit L. & R. Co. 29 N.W. 500 (Mich.); In re Rochester Elect. Ry. Co. (N. Y.) 25 N.E. 381; Lesieur v. Custer County, (Neb.) 85 N.W. 892; In re Montgomery, 48 F. 895; Smith v. C. & N.W. Ry. Co., 105 Ill. 511; Clay v. Imprv. Co., 34 Mich. 204; 22 Wyo. 401; 143 P. 356; Sec. 1 Chap. 73 Wyo. Session Laws 1913, page 68. The Board cannot contend that mandates of statute are not essential. Anderson v. Pemberton, 1 S.W. 216. Acts of the Board can only be proven by its record. Brooks v. Morgan, 76 N.E. 331. Defective proceedings cannot be cured by evidence aliunde. Parker v. Ry. Co., 19 S.W. 518. Record recitals cannot cure jurisdictional defects. Welsford v. Weidlein, 23 Kans. 426. The proceedings are a direct attack. Crawford v. McDonald, 33 S.W. 325. Absence of jurisdictional facts nullifies the proceedings of the Board. Oliphant v. Com'rs., 18 Kans. 386. The road petition did not contain a list of names as required by statute. Laws 1913 see Chap. 873. The word "shall" is mandatory and excludes discretion. Mau v. Stoner, 14 Wyo. 183; K. C. Ry. Co. v. Davis, 197 Mo. 669; 95 S.W. 881; City v. Board, 135 Ia. 27, 112 N.W. 167. The Road Act, Secs. 2530-2531 conflicts with the State and Federal Constitutions with respect to due process of law. Art. 1 Sec. 6 Const. Wyo. Art. 14 Sec. 1 Const. U. S. Condemnation proceedings are adversary. Seifert v. Brooks 34 Wis. 443, and as such require notice and opportunity for hearing. Sec. 2531 fails to so provide and is void. Sterritt v. Young, 14 Wyo. 162; 82 P. 946; Board v. Aldrege, 73 P. 1104; Stuart v. Palmer, 74 N.Y. 183; Catch v. City, 63 Ia. 718; Sav. Ry. Co. v. Mayor, 23 S.E. 847. The owner is entitled to a hearing at each stage of the proceeding. Edwards v. Cheyenne (Wyo.) 114 P. 677; McGarvey v. Swan, 17 Wyo. 133, 96 P. 697; In re Bench Canal, 24 Wyo. 143, 156 P. 610. The appointment of a viewer was unlawful. 2518 C. S. his report did not comply with law 2531 C. S.; In re Grove Street, 61 Cal. 438. It was the duty of the Board to pay for land taken whether claim was made or not. Kime v. County, 71 Neb. 677, 101 N.W. 2. Yazoo Board v. Daney, 65 Miss. 335; Kinkaid v. Seattle, 134 P. 504; Kanne v. Ry. Co. (Minn.) 23 N.W. 854. The Board sat as a judicial body. Goerke v. Town, 139 P. 1049; Phillips v. Brill, 17 Wyo. 26; Sec. 1170 C. S. has no application; the Board sitting to pass on claim, acts in a ministerial capacity. Converse County v. County, 53 So. 196; Mobile Co. v. Williams, 61 So. 963; Albert v. Board, 161 P. 521; State v. Diemer, 164 S.W. 517; State v. Goldsmith, 50 So. 394. When hearing matters pertaining to the opening of roads, the Board acts judicially. Foerke v. Town, supra. The claim for damages was sufficient. City v. Grand Rapids Co., 45 N.E. 793; Dallas Co. v. Day, 22 S.W. 538. Failure of appraisers to meet upon the day fixed destroyed the Board's jurisdiction. M. K. & C. Co. v. Town, 26 Kans. 503; State v. Mayor, 9 A. 781. Compensation for land taken shall be paid in cash, other damages may be compensated by benefits. Art. 1, Sec. 33 Const.; Ginn v. Dist., 188 Ill. 305; Hays v. Co., 54 Ill. 573; Omaha v. Co., 46 N.W. 919; Carson v. Coleman, 11 N. J. E. 106; State v. Ry. Co., 37 A. 614. The Board was without jurisdiction for non-compliance with Laws 1913, Chap. 73. The petition is jurisdictional. Toledo Ry. Co. v. Co., 29 N.W. 500; In re Co. 25 N.E. 381; Lesieur v. County, 85 N.W. 892; In re Montgomery, 48 F. 895; Smith v. Ry. Co., 105 Ill. 511; Clay v. Co., 34 Mich. 204; Edwards v. Cheyenne, 143 P. 356. Provisions of the statute are mandatory. Anderson v. Pemberton, 1 S.W. 216. The petition was not signed; the waiver which was signed was not intended as an adversary proceeding. 2535 C. S. The rule in 36 Cyc. 449 does not apply; the waiver was not a part of the petition when it was signed; it was not operative for the reason that some land owners objected, and thereupon a different procedure was attempted under a different statute, without proper notice. Edwards v. Cheyenne, supra; McGarvey v. Swan, supra; In re Bench Canal, supra. The Board's proceedings constituted the taking of property without due process of law, and without just compensation. Stuart v. Palmer, supra. No justification of emergency existed as provided by 2518 C. S. The viewer's report was insufficient. In re Grove Street, supra. Failure to make a claim is not a waiver of damages. Deber v. Ry. Co., 29 Minn. 256, Kime v. County, 71 Neb. 677. Plaintiff received no compensation; the value of land taken must be paid in cash. Hays v. Ry. Co., 54 Ill. 373; Omaha v. Co., supra. Damages for taking land cannot be compensated by alleged benefits. State v. Ry. Co., 37 A. 614.

Kinkead, Ellery & Henderson for defendants in error. Fred A. Lynch of counsel.

This action is a collateral attack upon the proceedings of the Board of County Commissioners in the establishment of a public road. There are but two propositions involved in the case.

1. The Road Act is not in conflict with the State or Federal Constitution.

2. The proceedings of the Board were in compliance with law and are not subject to collateral attack.

The Road Law differs from the law considered in Sterritt v. Young, 14 Wyo. 162, 82 P. 946. The Road Law provides for due process of law. Buckwaller v. School Dist. 65 Kans. 603; 70 P. 607. Under it, the jurisdiction of County Commissioners is exclusive. Kelley v. Com'rs., 24 Wyo. 386, 159 P. 1086. Procedure is prescribed by statute; Chap. 168 C. S. 1910. The Board acts in a judicial capacity; the law in its general provisions has been followed in the establishment of public roads for almost thirty years; a fact that should be persuasive in considering its validity. Slidell v. Grandjean, 111 U.S. 421. It will be upheld unless its unconstitutionality appears beyond a reasonable doubt. Farm Inv. Co. v. Carpenter, 9 Wyo. 110. The notice provided constituted due process of law. 12 C. J. 1229. This action is a collateral attack. Burke v. Ass'n., 64 P. 879, 25 Mont. 315; Black's Judgts. 253. The statute provides for an appeal from damages allowed. Any other method is direct attack. Kalb v. Society, 25 Wash. 349; 65 P. 559; Spencer v. Spencer, 51 Ind.App. 321, 67 N.E. 1018, 13 R. C. L. 55; Terre Haute v. Beach, 96 Ind. 143; Brown v. Jackson, 7 Wheat. 218; Foley v. Harrison, 15 How. 443; Smiley v. Sampson, 1 Neb. 70; Kuhn v. Port Townsend, 29 L. R. A. 445; Willis v. Sproule, 13 Kans. 194; Stoddard v. Johnson, 75 Ind. 20; Million v. Board, 89 Ind. 5. Plaintiff is estopped from alleging the sufficiency of the petition; the Board acted upon a petition which it held to be sufficient and its judgment thereon cannot be collaterally attacked. Elliott R. & S. 219; Board v. Justice, 133 Ind. 86, 36 Am. St. Rep. 529; State ex rel, S.Ct. (Wash.) 91 P. 241; C. & A. Ry. Co. v. Sutton, 30 N.E. 291. The proceedings of the Board must be presumed to be regular and not subject to indirect attack. State v. Joyce, 131 N.C. 610; 28 S.E. 689; Mitchell v. Ry. Co. (Mo.) 39 S.W. 790; Kelly v. State (Tex.) 80 S.W. 382; State v. Schenkel (Mo.) 108 S.W. 635; Henkamer v. County Com'r. (Tex.) 154 S.W. 622; Crescent Twp. v. Ry. Co., 210 Pa. 334; 59 A. 1103; Central Ry. Co. v. Mayor, 73 J. N. L. 625; Bryant v. Town, 68 N.H. 483, 39 A. 431; Board v. State, (Ind.) 132 N.E. 680; Yankton County v. Klemich, 11 S.D. 170; 76 N.W. 312. The record shows the petition to have been signed by at least ten qualified electors of the County; the appraisers met and qualified on the day assigned for meeting; plaintiff did not file a claim for damages at the time fixed in the published notice; the allegation of damage in its petition filed in District Court is insufficient to invoke the jurisdiction of that court; plaintiff's action is apparently based on the sole contention that the Road Law is invalid; it was plaintiff's duty to avail itself of the process of law provided for its protection. Seifield v. Bohne (Mo.) 69 S.W. 1051; Crescent Twp. v. Ry. Co., 210 P. 334, 59 A. 1103. Plaintiff having failed to take advantage of the statute for his own protection cannot now complain; it made default; it admits having received notice and purposely refused to file its objections or make its claim for damages within the time required by statute, while at the same time it was contemptuous of the authority and orders of the Board.

M. A. Kline, Pam & Hurd, and Burrell J. Cramer in reply.

A direct attack upon a judgment is an attempt to amend correct, reform, vacate or enjoin the execution of it. Crawford v. McDonald, supra; Bushe v. Ass'n. cited by defendants; a careful analysis of the cases cited by defendants in error will show that they differ upon facts from the case at bar; an immunity from collateral attack exists only so long as tribunals act within their jurisdiction. 13 R. C. L. 55. The immunity does not extend to void judgments. The Washington case of Pagett v. Court, 91 P. 241 cited by defendants in error turned upon the peculiar provisions of a statute, and the Missouri case of...