Walker v. City of Hutchinson Kansas

• Decision Date: 10 December 1956
• Docket Number: No. 13,13
• Citation: 352 U.S. 112,1 L.Ed.2d 178,77 S.Ct. 200
• Parties: Lee WALKER, Appellant, v. CITY OF HUTCHINSON, Reno County, KANSAS, a Municipal Corporation, et al
• Court: U.S. Supreme Court

352 U.S. 112

77 S.Ct. 200

1 L.Ed.2d 178

Lee WALKER, Appellant,

v CITY OF HUTCHINSON, Reno County, KANSAS, a Municipal Corporation, et al.

No. 13.

Argued Oct. 15 and 16, 1956.

Decided Dec. 10, 1956.

Mr. Herbert Monte Levy, New York City, for appellant.

Mr. Fred C. Littooy, Hutchinson, Kan., for appellees.

Opinion of the Court by Mr. Justice BLACK announced by Mr. Justice DOUGLAS.

The appellant Lee Walker owned certain land in the City of Hutchinson, Kansas. In 1954 the City filed an action in the District Court of Reno County, Kansas, to condemn part of his property in order to open, widen, and extend one of the City's streets. The proceeding was instituted under the authority of Article 2, Chapter 26 of the General Statutes of Kansas, 1949. Pursuant to s 26—201 of that statute¹ the court appointed three commissioners to determine compensation for the property taken and for any other damage suffered. These commissioners were required by § 26—202 to give landowners at least ten days' notice of the time and place of their proceedings. Such notice could be given either 'in writing * * * or by one publication in the official city paper * * *.'² The appellant here was not given notice in writing but publication was made in the official city paper of Hutchinson. The commissioners fixed his damages at $725, and pursuant to statute, this amount was deposited with the city treasurer for the benefit of appellant. Section 26—205 authorized an appeal from the award of the commissioners if taken within 30 days after the filing of their report. Appellant took no appeal within the prescribed period. Some time later, however, he brought the present equitable action in the Kansas District Court. His petition alleged that he had never been notified of the condemnation proceedings and knew nothing about them until after the time for appeal had passed. He charged that the newspaper publication authorized by the statute was not sufficient notice to satisfy the Fourteenth Amendment's due process requirements. He asked the court to enjoin the City of Hutchinson and its agents from entering or trespassing on the property 'and for such other and further relief as to this Court seem(s) just and equitable.'³ After a hearing, the Kansas trial court denied relief, holding that the newspaper publication provided for by § 26—202 was sufficient notice of the Commissioners' proceedings to meet the requirements of the Due Process Clause. Agreeing with the trial court, the State Supreme Court affirmed. 178 Kan. 263, 284 P.2d 1073. The case is properly here on appeal under 28 U.S.C. § 1257(2), 28 U.S.C.A. § 1257(2). The only question we find it necessary to decide is whether, under circumstances of this kind, newspaper publication alone measures up to the quality of notice the Due Process Clause of the Fourteenth Amendment requires as a prerequisite to proceedings to fix compensation in condemnation cases.

It cannot be disputed that due process requires that an owner whose property is taken for public use must be given a hearing in determining just compensation. The right to a hearing is meaningless without notice. In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865, we gave thorough consideration to the problem of adequate notice under the Due Process Clause. That case establishes the rule that, if feasible, notice must be reasonably calculated to inform parties of proceedings which may directly and adversely affect their legally protected interests.⁴ We there called attention to the impossibility of setting up a rigid formula as to the kind of notice that must be given; notice required will vary with circumstances and conditions. We recog- nized that in some cases it might not be reasonably possible to give personal notice, for example where people are missing or unknown.

Measured by the principles stated in the Mullane case, we think that the notice by publication here falls short of the requirements of due process. It is common knowledge that mere newspaper publication rarely informs a landowner of proceedings against his property. In Mullane we pointed out many of the infirmities of such notice and emphasized the advantage of some kind of personal notice to interested parties. In the present case there seem to be no compelling or even persuasive reasons why such direct notice cannot be given. Appellant's name was known to the city and was on the official records. Even a letter would have apprised him that his property was about to be taken and that he must appear if he wanted to be heard as to its value.⁵

Nothing in our prior decisions requires a holding that newspaper publication under the circumstances here provides adequate notice of a hearing to determine compensation. The State relies primarily on Huling v. Kaw Valley Railway & Improvement Co., 130 U.S. 559, 9 S.Ct. 603, 32 L.Ed. 1045. We think that reliance is misplaced. Decided in 1889, that case upheld notice by publication in a condemnation proceeding on the ground that the landowner was a non-resident. Since appellant in this case is a resident of Kansas, we are not called upon to consider the extent to which Mullane may have undermined the reasoning of the Huling decision.⁶

There is nothing peculiar about litigation between the Government and its citizens that should deprive those citizens of a right to be heard. Nor is there any reason to suspect that it will interfere with the orderly condemnation of property to preserve effectively the citizen's rights to a hearing in connection with just compensation. In too many instances notice by publication is no notice at all. It may leave government authorities free to fix one-sidedly the amount that must be paid owners for their property taken for public use.

For the foregoing reasons the judgment of the Supreme Court of Kansas is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

Reversed and remanded.

Mr. Justice BRENNAN took no part in the consideration or decision of this case.

Mr. Justice FRANKFURTER, dissenting.

Appellant contends that the provision of Kan.Gen.Stat.1949, § 26—202, allowing notice of the hearing on compensation to be given by one publication in the official city newspaper of itself violates the provision of the Fourteenth Amendment that no State shall 'deprive any person of life, liberty, or property, without due process of law * * *.'¹ The first issue that faces us, however, is to decide from the pleadings exactly what it is that we must decide in this case.

Once appellant discovered that his land had been condemned and that the time for appeal from the award of the commissioners had passed, various possible courses of action, followed separately or in combination and each raising different issues, were open to him. If he considered the award fair but still desired to keep his land, he could have contended that unconstitutionality of the notice for the hearing on compensation invalidated the taking. If he considered the award unfair, he could have alleged in an appropriate action the unconstitutionality of the notice of the compensation hearing and the inadequacy of the compensation and sought to obtain fair compensation, see Ward v. Board of County Com'rs of Love County, 253 U.S. 17, 40 S.Ct. 419, 64 L.Ed. 751, or to restrain entry onto his land until he received a hearing under Kan.Gen.Stat.1949, § 26—202, or, making a further allegation of the invalidity of the taking, to obtain a permanent injunction. At this stage, it is not relevant for me to imply any opinion on the merits of any of these possible courses of action.

On a fair reading of the complaint, appellant chose to pursue only the first course. The theory of his action, an attempt to restrain the city from trespassing on his land, is that he still has the right to possession. His petition for injunction based this right to possession solely on the allegation that the statutory notice was insufficient. Nowhere in his petition for an injunction does appellant make any factual allegation that the money deposited by the commissioners did not represent the fair value of his land and therefore left him out of pocket. Nowhere did he indicate that he wanted an injunction only until he received a hearing. The whole theory of his petition is that the property that was being taken without due process of law was his land, not its money value.²

In a memorandum filed after oral argument in this Court, appellant contends that the allegation of 'irreparable damage' is a sufficient allegation of monetary loss. He states: 'Of course, there could be no irreparable damage—indeed there could be no damage at all—unless the amount of the award was less than the actual value of the property. Had this been an action for damages, then an allegation of the differences in value would logi- cally have been found in the petition. But it was an injunction proceeding.'

But an allegation of 'irreparable damage' is merely a legal conclusion, flowing from, and justified by, the necessary allegation of facts warranting injunctive relief. The usual factual assertion underlying such an allegation in a suit to restrain trespass is that the threatened continuous nature of the entry represents the 'irreparable damage.' Indeed, in his petition for injunction, appellant made the usual factual assertion, immediately preceding the prayer for relief:

'That at the present moment defendant City of Hutchinson, either itself, or by contractors employed by it, is, or is threatening to enter upon said real estate owned by the Plaintiff, and this for the purpose of building a highway across said real estate, all in utter and complete disregard of the rights of this Plaintiff.'

In view of this assertion and the absence of any other assertion with respect to 'irreparable damage,' appellant's claim that monetary loss is alleged is baseless.

If the Kansas Supreme Court had construed...