State v. District Court of Sixth Judicial District in and for Park County

• Decision Date: 26 April 1923
• Docket Number: 5294.
• Parties: STATE EX REL. MCLEOD v. DISTRICT COURT OF SIXTH JUDICIAL DISTRICT IN AND FOR PARK COUNTY ET AL.
• Court: Montana Supreme Court

215 P. 240

67 Mont. 164

STATE EX REL. MCLEOD v. DISTRICT COURT OF SIXTH JUDICIAL DISTRICT IN AND FOR PARK COUNTY ET AL.

No. 5294.

Supreme Court of Montana

April 26, 1923

Original application for a writ of prohibition by the State, on the relation of Daniel W. McLeod, against the District Court of the Sixth Judicial District in and for Park County, and another. Writ issued.

Gibson & Smith, of Livingston, for plaintiff.

O'Connor & Miller, of Livingston, for defendants.

GALEN J.

This is an original application for a writ of prohibition. It appears that on February 10, 1923, the city of Livingston, one of the municipal corporations of the state, commenced an action in the district court of Park county against the relator and his wife, Florence McLeod, for the purpose of condemning and taking for a public highway a strip of improved land belonging to the relator, consisting of about one acre. A general demurrer to the complaint having been overruled, the defendant answered, denying the plaintiff's right of condemnation. Upon hearing it was stipulated that the land involved lies outside of the territorial and corporate limits of the city. By judgment entered, the purpose was declared to be for a public use, and the condemnation of the land determined necessary. Commissioners were appointed to ascertain and determine the amount to be paid to the relator.

Although an appeal lies from the findings of the trial court, the remedy may not be adequate, since by the terms of the statute (section 9937, Rev. Codes 1921) proceedings are not stayed. The writ of prohibition may properly be issued where the district court has acted without jurisdiction, and the remedy afforded by appeal is not sufficiently speedy or adequate to grant relief. Section 9862, Rev. Codes, 1921; State ex rel. King v. District Court, 24 Mont. 494, 62 P. 820; State ex rel. Marshall v. District Court, 50 Mont 289, 146 P. 743, Ann. Cas. 1917C, 164; State ex rel. Lane v. District Court, 51 Mont. 503, 154 P. 200, L. R. A 1916E, 1079; State ex rel. Wooten v. District Court, 57 Mont. 517, 189 P. 233, 9 A. L. R. 1212; State ex rel. Examining and Trial Board v. Jackson, 58 Mont. 90, 190 P. 295; Powhatan Coal Co. v. Ritz, 60 W.Va. 395, 56 S.E. 257, 9 L. R. A. (N. S.) 1225.

The writ will issue only when it clearly appears that the district court acted without jurisdiction. State ex rel Spaulding v. Benton, 12 Mont. 66, 29 P. 425.

"It is hardly necessary to state that want of jurisdiction, in some respect, on the part of the court, judge, or tribunal against whom a writ of prohibition is asked is the only ground upon which it can ordinarily be obtained. As to what constitutes a want of jurisdiction, courts, judges, and lawyers sometimes differ, and there may be some conflict among the decisions, but all agree that it should never be used except to prevent acts which are not within the jurisdiction of the court, officer, or tribunal sought to be restrained. There may be an entire want of jurisdiction, or the judge against whom the writ goes may have jurisdiction of the subject-matter of the controversy and of all the parties interested, and yet render a judgment, or make an order in the cause, in excess of his powers. In both cases there is a want of jurisdiction. The difference between the two cases is in respect to form and degree, rather than principle. As regards the cause of action and parties, there may be a total want of jurisdiction and power over both, or over only one. In such cases it is said the proceeding is without jurisdiction. There may be jurisdiction over the subject-matter and all the parties, and still a want of power in the court to render a certain judgment; and, if this judgment is rendered, the judge is sometimes said to have abused his jurisdiction or acted in excess of it. Still it is an attempt to act without power, and a lack of power is a lack of jurisdiction." Powhatan Coal Co. v. Ritz, supra.

And the language of Mr. Justice Holloway, speaking for this court in the Lane Case, above cited, is quite applicable in the present proceeding:

"The existence of a remedy by appeal does not necessarily defeat the right to relief by prohibition. State ex rel. Marshall v. District Court, 50 Mont. 289, 146 P. 743. An application of this character is addressed to the sound discretion of this court (State ex rel. Mackel v. District Court, 44 Mont. 178, 119 P. 476); and whenever it is made to appear, as in this instance, that under no conceivable circumstances can the district court render a valid judgment because of a lack of jurisdiction, the discretion should be exercised in favor of issuing the writ, to the end that litigants may be saved the needless trouble and expense of prosecuting their litigation to a fruitless judgment."

In our opinion, the facts in this case warrant the issuance of the writ, should it be concluded that the district court is without jurisdiction to adjudge a condemnation of the lands involved.

The only question presented for decision is whether a city has the power or authority to condemn for a highway outside of its limits, a right of way leading to a public park owned by it, but located beyond its confines.

"Eminent domain is the right of the state to take private property for public use" (section 9933, Rev. Codes 1921); and the Constitution declares it shall never be abridged (section 9, art. 15). It may be exercised in behalf of such public uses as are authorized by the Legislative Assembly (Rev. Codes 1921, § 9934); but, before property may be so taken, it must appear that the use to which it is applied is authorized by law. (Id. § 9937). The state may thus acquire title to property, or authorize others so to do, for a public use, as by statute provided. Id. § 30.

Our statute provides, so far as pertinent here, that eminent domain may be exercised in behalf of the following public uses:

"2. Public buildings and grounds for the use of the state, and all other public uses authorized by the Legislative Assembly of the state; 3. Public buildings and grounds for the use of any county, city, or town, or school district; * * * roads, streets, and alleys, and all other public uses for the benefit of any county, city or town, or the inhabitants thereof, which may be authorized by the Legislative Assembly." Id. § 9934.

A city or town is a body politic and corporate, with the general powers of a corporation, and the powers specified, and those necessarily implied by general or special law. Id. § 4955. Among the enumerated powers of a city or town is the power to condemn private property for opening, establishing, widening or altering any street, alley, park, sewer, waterway, or for other public use in the city or town. Id. § 5039, subd. 75. And authority is expressly conferred upon a city to condemn private lands in order to provide it with an adequate water supply, and jurisdiction is conferred upon cities "over the territory occupied by their public works, and over and along the line of reservoirs, streams, trenches, pipes, drains, and other appurtenances used in the construction and operation of such works, and also over the source or stream from which water is taken, for the enforcement of its sanitary ordinances, the abatement of nuisances, and the general preservation of the purity of its water supply, with power to enact all ordinances and regulations necessary to carry the powers * * * conferred into effect." Id. § 5039, subd. 64.

Nowhere is any authority given to a city to condemn property for a public road outside of its limits. In the absence thereof, it does not exist. To the board of county commissioners of the several counties of the state is delegated general supervision over the highways within the several counties. Power is especially conferred upon them, and it is made their duty to "contract, agree for, purchase, or otherwise lawfully acquire the right of way over private property for the use of public highways, and for that purpose institute, when necessary," condemnation proceedings. Id. § 1622, subd. 5.

Authority to condemn property for a public use must clearly be expressed in the law before such right will be allowed. Seattle & Montana Ry. Co. v. State, 7 Wash. 150, 34 P. 551, 22 L. R. A. 217, 38 Am. St. Rep. 866; State v. Boone County, 78 Neb. 271, 110 N.W. 629, 15 Ann. Cas. 487; State v. Superior Court, 36 Wash. 381, 78 P. 1011; People v. Sanitary Dist. of Chicago, 210 Ill. 171, 71 N.E. 334; St. Louis, J. & C. R. Co. v. Trustees of Illinois Inst. for Education of Blind, 43 Ill. 303.

And the right to own or accept by gift, deed, or devise land for a public park given by section 5043, Rev. Codes, 1921, does not by implication or otherwise confer upon the city the power of eminent domain in order to establish a public road leading thereto. Not being conferred expressly or necessarily implied in the language of the statute, it has not been granted. Nor can it be successfully contended that the city, having been granted the power to accept by gift, deed, or devise land for a public park, may, as a necessary incident of such power, condemn land for a public road leading to it. It will be noted that authority has not been given to a city by statute to condemn lands for a park either within or without the limits; and, not having such power as respects the principal purpose--i. e., the public park--there is nothing upon which to even suggest implied authority to condemn a road leading thereto.

Municipal corporations can exercise the right of eminent domain only to the extent to which the power has been conferred upon them by statute.

"Not only must the authority of municipal corporations, or other legislative agents, to take private property, be expressly conferred, and the use for which it is taken...