Woodruff v. Town of Glendale

• Citation: 1 N.W. 581,26 Minn. 78
• Parties: John Woodruff v. Town of Glendale and others
• Decision Date: 12 June 1879
• Court: Supreme Court of Minnesota (US)

1 N.W. 581

26 Minn. 78

John Woodruff v. Town of Glendale and others

Supreme Court of Minnesota

June 12, 1879

Appeal by plaintiff from a judgment of the district court for Scott county, where the action was tried before Dickinson, J acting for the judge of the eighth district.

Judgment affirmed.

E Southworth, for appellant.

H. J Peck, for respondent.

OPINION

Gilfillan, C. J.

Action to enjoin the defendants from entering upon the lands of plaintiff in the town of Glendale, and opening through the same a public road, previously located by the supervisors of the town under the provisions of Laws 1873, c. 5. All the proceedings of the supervisors are admitted to have been in accordance with the provisions of the act, the damages, however, not having been paid.

The only point made is that the act is unconstitutional, because it does not provide for payment of the damages assessed. If no such provision were found in the act, of course it would be unconstitutional. There is no express provision to that effect. But rather than hold the law to be void, the court will find such provision by implication, if the act will admit of such a construction. Where the legislature makes provision for taking private property for public use, and there is anything in the act from which the court can spell out an intention that just compensation shall be made, and by whom it shall be made, and there is a mode given for ascertaining the amount, it must give a construction to the act that will sustain it.

Section 1 of the act in question gives to the supervisors of towns the care and superintendence of roads and bridges therein. Section 33 authorizes them to lay out any new road when petitioned by not less than six legal voters residing or owning real estate within one mile of the road to be laid out. Sections 34, 35, 36, 37 and 38 regulate the proceedings therein. Section 39 provides for ascertaining the damages by agreement between the supervisors and owners, and for an assessment of them by the supervisors if no such agreement is made, or release of claim to the same executed -- the agreement, release, or statement of damages assessed to be filed with the town clerk. The agreement for the damages here mentioned is surely one made for and in behalf, not of the supervisors personally, but of the town whose officers they are, and which they represent -- an agreement binding upon and creating a liability against the town. Woodruff v. Town of Glendale, 23 Minn. 537. It is to be presumed that the damages assessed shall be paid by some one; else, why assess them? And that the assessment, resorted to only if no agreement is made, or a release given, shall not only...