Thomas v. Boise City

Decision Date07 February 1914
PartiesBENJAMIN THOMAS, Respondent, v. BOISE CITY, a Municipal Corporation, et al., Appellants
CourtIdaho Supreme Court

EMINENT DOMAIN-MUNICIPALITY-POWER IN PROCEEDINGS TO CONDEMN REAL PROPERTY OF A PERSON OR ANY CORPORATION OR ANY TITLE TO REAL PROPERTY-DUE PROCESS OF LAW-CONSTITUTIONALITY OF STATUTES AND MUNICIPAL ORDINANCES ENACTED BY THE CITY-POWER OF MAYOR TO ADMINISTER OATHS TO OFFICERS OR APPRAISERS OR COMMISSIONERS APPOINTED BY THE MAYOR OR THE CITY COUNCIL.

1. Sec 14, art. 1 of the constitution of Idaho provides "Private property may be taken for public use, but not until a just compensation, to be ascertained in a manner prescribed by law, shall be paid therefor."

2. Sec 14, art. 1, above, applies to the case that is decided in this opinion, and there can be no question of its application.

3. It is contended in this case that the only oath administered to the appraisers was by the mayor, and that he had no authority to administer oaths in such cases. The appellant was unable to find any provisions in the constitution or the statute which show that the mayor has power or authority to administer oaths such as was done in this case. We hold therefore, that the mayor of Boise City was not authorized to qualify the appraisers elected by the mayor and council by administering an oath or affirmation to them, as he did in this case, and that he has authority to administer oaths and affirmations only when authorized by the constitution or by statute.

4. In a case relating to eminent domain proceedings a right of appeal may be taken, while in the case at bar it is confessed by the appellant there is no right of appeal; hence there is a distinction between the two cases, in that the proceedings in the former case are voidable by an appeal, in this case void, there being no appeal.

5. Ordinance No. 1076 fixes the qualification of appraisers as "freeholders," while in subd. 27, sec. 2238, Rev Codes, "holder" was provided as a qualification; hence the proceedings of the city were ineffectual to appropriate the real estate in controversy in this case; therefore the city in its ordinance did not comply with the statute, even if it was unconstitutional, and the city has not shown in this case either legal or equitable right to have the judgment reversed, or that it should have been entered in favor of the appellant.

6. In this case the record shows clearly that no notice was issued by the appraisers, the mayor or the council to the respondent, that the city would proceed to secure respondent's real estate for the use of the public, and that the swearing of the appraisers by the mayor when he had no authority and the passage of Ordinance No. 1076 were not due process of law, and that the respondent was denied due process of law where a city is proceeding to acquire private rights for public use, and that such proceedings cannot be approved under the constitution and statutes of this state.

7. Sec. 2238, Rev. Codes, subds. 26 and 27, provides no method for condemning real property to public use under art. 1, sec. 14 of the constitution of this state, and therefore has no force in the proceedings in this case, because there is no provision in either subdivision of the section, or any other provision, that provides for the condemnation proceedings attempted to be enforced as shown by the record in this case.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.

An action brought in the district court by the respondent against Boise City, a municipal corporation. Affirmed.

Judgment affirmed, with costs in favor of respondent.

C. F. Reddoch, for Appellants.

Subdivisions 26, 27, sec. 2238, Rev. Codes, seem to be identical with and were apparently copied from Nebraska. The proceedings taken by the city are in harmony with that outlined as necessary by the Nebraska court in Union P. Ry. Co. v. Burlington & M. R. R. Co., 19 Neb. 386, 27 N.W. 238.

The fact that the city council is vested with power to appoint the appraisers does not deprive the respondent of any substantial right. (Cook v. Borough of Allendale, 79 N.J.L. 285, 75 A. 769.) Lewis on Eminent Domain, sec. 564, vol. 2, 3d ed., collates the cases holding that no notice need be given in eminent domain proceedings. In this classification he enumerates the states of Illinois, Maryland, Mississippi, and Massachusetts as holding to this view. (Johnson v. Joliet & Chicago R. Co., 23 Ill. 202; New Orleans etc. R. Co. v. Hemphill, 35 Miss. 17; Stewart v. Board of Police of Hinds County, 25 Miss. 479; Inhabitants of Walpole v. Massachusetts Chemical Co., 192 Mass. 66, 78 N.E. 140; Lancy v. City of Boston, 185 Mass. 219, 70 N.E. 88; Secombe v. Milwaukee & St. P. Ry. Co., 90 U.S. 108, 23 L.Ed. 67.)

The ordinance declaring the intention to appropriate this land for street purposes was published in the "Idaho Daily Statesman," the official newspaper of the city, and the respondent certainly had constructive notice of the proceedings. (Wulzen v. Board of Suprs., 101 Cal. 15, 40 Am. St. 17, 35 P. 353.)

His appearing and taking part in the proceedings is certainly a waiver of any right to notice. (Hanson v. Cloud County, 8 Kan. App. 857, 55 P. 468; Condon v. County Commrs., 89 Me. 409, 36 A. 626; Anderson v. Town of Decoria, 74 Minn. 339, 77 N.W. 229; Hurst v. Town of Martinsburg, 80 Minn. 40, 82 N.W. 1099.)

This is not a local or special law within the constitutional provision, and is not prohibited thereby. (Hettinger v. Good Road Dist. No. 1, 19 Idaho 313, 113 P. 721; Boise Irr. Co. v. Stewart, 10 Idaho 38, 77 P. 25, 321.)

It is most certain that "householders" was intended to be used by the legislature, if we take the Nebraska statute as a guide, and our statute must have been copied from that state, as they are identical, except that ours says, "disinterested holders," and Nebraska "disinterested householders," and it is a well-established canon of statutory construction that the courts will supply an omission where the legislative intent is plain, when by so doing the statute can be upheld. (Neacy v. Board of Suprs., 144 Wis. 210, 128 N.W. 1063; State v. Radford, 82 Kan. 853, 109 P. 284.)

The courts will not declare an act of the legislature void and inoperative unless it appears unconstitutional beyond all reasonable doubt, and where two meanings can be given to a word or phrase, that meaning will be given which will give effect to the legislative intent. (Wooley v. Watkins, 2 Idaho 590 (555), 22 P. 102; Ogden v. Saunders, 12 Wheat. (U.S.) 213, 6 L.Ed. 606.)

B. F. Neal, for Respondent.

The appraisers in this case were not elected in the manner prescribed by the statute, but in a manner in violation of the provision of the statute. (Union P. Ry. v. Burlington & M. Ry. Co., 19 Neb. 386, 27 N.W. 238.)

The mayor is without authority to administer oaths in such cases. (Lewis on Eminent Domain, 3d ed., sec. 629; 29 Cyc. 1300; Payne v. San Francisco, 3 Cal. 122; Latah County v. Hasfurther, 12 Idaho 797, 88 P. 433.)

The last case was a proceeding to open a road under the general statutes of the state relating to eminent domain in which a right of appeal is specifically given; while in the case at bar it is confessed by the appellants there is not right of appeal. Hence there is a distinction between this case and that; in that the proceedings are voidable by an appeal, in this void, there being no appeal. (Lewis, Em. Dom., 3d ed., secs. 629, 630.)

"If facts are submitted to the tribunal it should be done in some legal method and the opposing party should be allowed an opportunity to hear and meet them." (Elliott, Roads and Streets, 2d ed., sec. 347; Lewis, Em. Dom., 3d ed., sec. 566.)

The Nebraska statute, from which ours was taken, prescribes the qualifications of appraisers as "disinterested householders." The appellants procured appraisers who were "disinterested freeholders."

The distinction between "householders" and "freeholders" is clearly defined. (Shively v. Lankford, 174 Mo. 535, 74 S.W. 835, 838, citing Carpenter v. Dame, 10 Ind. 125.)

Since the statute says neither "freeholder" nor "householder," but merely "holders," who shall determine what word was omitted?

"Where matter interpolated into a statute to make it valid comprises the real substance of the act, the court is not authorized to make such interpolation." (Holmberg v. Jones, 7 Idaho 752, 65 P. 563; Hettinger v. Good Road Dist. No. 1, 19 Idaho 313, 113 P. 721.)

If no sensible meaning can be given to the statute, or if it is so incomplete that it cannot be carried into effect, it must be pronounced inoperative and void. (Lewis' Sutherland, Stat. Const., sec. 86; State v. Ashbrook, 154 Mo. 375, 77 Am. St. 765, 55 S.W. 627; Cook v. State, 26 Ind.App. 278, 59 N.E. 489. See further cases cited sec. 86, Lewis' Sutherland, Stat. Const.)

The statute does not provide for due process of law, because no provision is made for notice and process or for hearing according to the laws of the land. (Elliott, Roads and Streets, 2d ed., secs. 194A, 279, 429; Murdock v. Cincinnati, 39 F. 891; Chauvin v. Valiton, 8 Mont. 451, 20 P. 658, 3 L. R. A. 194; Allen v. Jones, 47 Ind. 438; Barrow v. Page, 5 Hayw. (Tenn.) 97; Chicago etc. R. Co. v. Town of Lake, 71 Ill. 333; Phillips v. Dunkirk etc. Co., 78 Pa. 177; Dyckman v. Mayor, etc., 5 N.Y. 434; Dronberger v. Reed, 11 Ind. 420; Brunswick etc. R. Co. v. City of Waycross, 94 Ga. 102, 21 S.E. 145.)

"If no notice is provided by law, no effective notice can be given, since a notice not authorized can have no legal force and without a notice authorized by some valid statute there can be no due process of law." (Elliott, Roads and Streets, 2d ed., sec. 198; Stuart v....

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