57 P. 1017 | Or. | 1899
after stating the facts in the foregoing language, delivered the opinion of the court.
Several objections are made to the validity of the proceedings in the county court, but the principal one is
But, while it is everywhere admitted that one cannot be deprived of his property without due process of law, neither the federal nor state constitutions have made
Coming then to the case in hand, we are called upon to determine whether the course of proceeding for the taking of private property without the consent of the owner, provided in the statute under consideration, is ‘ ‘ according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights,” and which Mr. Justice Field says, in Pennoyer v. Neff, 95 U. S. 714, is essential to due process of law, or whether it is “arbitrary, oppressive, and unjust.” If the former, the statute is valid ; and if the latter, void. Looking at its provisions somewhat in detail, it will be noted that it authorizes the taking of the right to the use of the bed and channel of the stream; the building of dams, and the consequent right to overflow lands outside the channel; the right to cut through adjacent lands for the purpose of straightening, widening, or deepening the stream; to pass along the banks for the purpose of doing the necessary work to make the stream navigable and keeping it in repair, and properly superintending and managing the use of the highway (an easement of indefinite extent); the building and maintaining of booms for the handling of property to be transported, and the taking of such
After a careful examination of the question, we are satisfied that the better rule — the one supported by the great preponderance of authority — is that where a
And in the noted case of Stuart v. Palmer, 74 N. Y. 183, in which the doctrine of “due process of law,” as applicable to' a statute authorizing an assessment for opening a highway, received an exhaustive and learned discussion, Mr. Justice Earl, in speaking for the entire court, said: “The constitution sanctions no law imposing such an assessment without a notice to, and a hearing or an opportunity of a hearing by, the owners of the property to be assessed. It is not enough that the owners may by chance have notice, or that they may, as a matter of favor, have a hearing. The law must require notice to
The decisions of this court upon the validity and constitutionality of acts providing for the assessment of property and levy of taxes for general purposes, or for assessments for opening or improving streets in municipalities, or the laying of sewers, or the taking of material by road supervisors for the repair of public highways, are not authority in the present case, except in so far as they may illustrate the application of the doctrine of due process of law to a given state of facts. It is conceded in all of these cases that notice to the party to be affected is essential, and the point decided in each of them was whether or not such a notice had been provided for by the law under which the proceedings were had. We are here, however, to deal with an act providing for the taking of private property of an individual without his consent
But the power granted by the statute under consideration is vested in, and is to be exercised by, the county court, acting in a judicial and not a legislative capacity. It has no authority to prescribe the mode of exercising the power granted, or to supplement the statutory method of procedure. It can only execute the law according to its terms, and, as the statute undertakes to provide the entire method of procedure, it necessarily follows that, unless in its several provisions it is in conformity with the constitution, and provides for due process of law, all