186 F. 315 | 8th Cir. | 1911
The Eegislature of the state of Kansas in 1905 authorized the formation of drainage districts in the several counties of the state by the board of county commissioners, upon the presentation to them of a proper petition, showing that the lands and property therein embraced are subject to injury and dam
The statute provided, in substance, that the board of directors shall have power, whenever it shall be deemed necessary to appropriate any private property for use by the district in widening, deepening, or otherwise improving-, any natural water course to prevent the overflow thereof, or for the construction of any levee, to cause a survey and description of the lands so required to be made by some competent engineer and filed with its secretary. The board was thereafter authorized to make an order declaring that the appropriation of such land was necessary, setting forth for what purpose the same was to be used. The board of directors, as soon as practicable' thereafter, was required to present a written application to the judge of the district court or the court of common pleas of the county in which the land was situated, describing the land sought to be taken, setting forth the necessity for the appropriation thereof for the use of the district, and pra3ring for the appointment of three commissioners to make ap-praisement and assessment of damages therefor. Upon the presentation of such petition by such board of directors, or its attorney, the judge to whom the same was presented was required forthwith in writing to appoint such commissioners, and deliver a certificate thereof to the said board of directors, or its attorney, who were required without delay to cause the application and certificate of appointment to be recorded in the office of the register of deeds of the county. The commissioners so appointed were required to take an oath to honestly and faithfully discharge their duties, and to give all owners of property sought to be taken at least 10 days’ notice of the time and place when and where the damages would be assessed, such notice to be given by one publication in some newspaper published in the cou’nty, and at the time fixed in such notice the commissioners were required, upon actual view, to appraise the value of the lands taken and to assess the other damages done to the owners of the property, respectively, by such appropriation. The commissioners were authorized to adjourn from time to time as they deemed convenient, correct all errors or omissions in the giving of notice by serving new notices or making new publications, and were authorized to make from time to time partial reports, and upon completing their duties to make a final report. Such reports were to be in writing and filed in the office of the clerk of the county. In such reports the commissioners were required to accurately describe the land by them set forth and appropriated, the purpose for which the same was taken, the name of each owner, if known, and appraise each owner’s interest and assess his damages separately. The county clerk was required, upon any such report being filed, forth
Any person being or claiming to be the owner of any lands so condemned or appropriated, deeming himself aggrieved by the award of said commissioners, could appeal from the award of said commissioners to the district court of the county; but such appeal should only, affect the amount of compensation to be allowed and should not delay the prosecution of the work of the district, upon the district paying or depositing the amount assessed by such commissioners with, the county treasurer, as aforesaid, and said district, upon executing a bond with sufficient surety to be approved by the county clerk to pay all damages' or costs which said district might be adjudged to pay by said district court, was authorized, notwithstanding such appeal, to take possession of, appropriate, and use said land for the purposes for which it was condemned. Provision was also made in the statute allowing the drainage district, under certain circumstances, to appeal if desired from the award of such commissioners.
The Kaw Valley Drainage District, organized pursuant to the statute, on the 4th day of January, 1911, by its board of directors, presented its application to the judge of the district court of Wyandotte county, reciting the facts required by the statute to be recited in such application, praying for the appointment of commissioners to assess the damages to the owners of the property sought to be taken and damaged. On the following day, January 5th, respondent presented to the judge of the district court of Wyandotte county a petition and bond for the removal of such proceedings, instituted and taken by said drainage district for the appointment of commissioners, as aforesaid, to the Circuit Court of the- United States for the District of Kansas; said petition and bond being in proper form and the security adequate. Such petition and bond were filed with the clerk of the district court of said Wyando.tte county. The petition for removal was by the judge of said court denied, and the appellants Stumpf, Mason, and Mebus were by said judge appointed commissioners. The commissioners accepted the office, took the oath required by statute, and on the 6th day of January, 1911, caused a notice to be published, being such notice as was required by the statute, stating that'they (the commissioners) would meet at 10 o’clock a. m., on the 19th day of January, 1911, at the east end of the James Street Bridge over the Kansas river, in Kansas City, Kan., and thereupon proceed, upon actual view, to condemn for the use of the drainage district the tracts of land described in the notice, and appraise the value of the land and assess the true damages done to the owners thereof.
Thereafter, and on the 13th day of January, 1911, plaintiff, having filed a transcript of the proceedings relating to the removal in the Circuit Court of the United States, filed its bill in the Circuit Court of the United States for the District of Kansas, setting forth the proceedings of said drainage district for the appointment of the commis
“Neither can It be said that there is any fundamental right secured by the Constitution of the United States to have the questions of compensation and necessity both passed upon by one and the same jury. In many stall's tin' question of necessity is never submitted td tile jury which passes upon ihe question of compensation. It is either settled affirmatively by the Legisla ture, or left to the judgment of the corporation invested with the rigid; to take property by condemnation. The question of necessity is not one of a judicial character, but rather one for determination by the lawmaking branch of the government. * * *
“It is within the power of the state, to provide that the amount shall be determined in the first instance by commissioners, subject to an appeal to the courts for trial in the ordinary way; or it may provide, that the question shall bo settled by a sheriff’s jury, as it; was constituted at. common law. without the presence of a trial judge. These are questions of procedure which do not enter into or form the basis of fundamental right. All that is essential is that in some appropriate way, before some properly constituted tribunal, inquiry shall be made as to the amount of compensation, and when this has been provided there is that due process of law which is required by the federal Constitution.”
While it is true that the state may not deprive the federal court of its jurisdiction to determine matters of a judicial nature which are within the federal judiciary act, it by no means follows that, in all instances, the proceedings to take private property for public use, which
Boom Co. v. Patterson, supra, was a case in which condemnation proceedings had been instituted in the state of Minnesota. The statute of that state provided that the party seeking to condemn private property for a public use should apply to the district court of the county in which the property was situated for the appointment of commissioners to appraise its value and take proceedings for its condemnation. The law provided that they should give notice to the owners of the land before the appraisement was made. If the award of the commissioners should not be satisfactory, any one claiming an interest in the land was authorized to take an appeal to the district court, where it was to be entered by the clerk “as a case upon the docket.” The court was then required to “proceed and determine such case in the same manner as other cases are heard and determined in said court.” In that case an appeal was taken to the district court of the state from' the award ■ of damages by the commissioners, and the cause thereafter removed from the district court of the state to the United States court. The question was presented as to whether or not the United States court acquired jurisdiction in removal; the court saying:
“The proceeding in the present ease before the commissioners appointed to appraise the land was in the nature of an inquest, to ascertain its value, and not a suit at law in the ordinary sense of those words. But, when it was transferred to the district court by appeal from the award of the commissioners, it took, under the statute of the state, the form of a suit at law and was thenceforth subject to its ordinary rules and incidents. The point in issue was the compensation to be made to the owner of the land; in other words, the value of the property taken. No other question was open to contestation in the district court.”
In Pacific Railroad Removal Cases, 115 U. S. 1, 5 Sup. Ct. 1113, 29 L. Ed. 319, among the questions presented was one as to when a condemnation proceeding instituted by the city of Kansas City, Mo., for the purpose of widening a street running through the depot grounds of the railroad, became an action so as to be removed into the federal court. By the statute law in that case, proceedings were instituted and tried before the mayor and a jury, from which an appeal could be taken to the circuit court of the county. The case was tried before the mayor and a jury and an appeal taken to the circuit court and removed from the circuit court of the county to the Circuit Court of the United States. It was contended in opposition to the removal that, as it was a case that had once been tried before the mayor and a jury, the application to remove after the appeal to the circuit court came .too late. The court, on page 18 of 115 U. S., on page 1121 of 5 Sup. Ct. (29 L. Ed. 319), said:
“The second ground of objection, that the cause had been once tried before the mayor by a jury, and an appeal taken, before a petition for removal was filed, and therefore the application was too late, is answered by the reasoning of this court in the case of Boom Co. v. Patterson, 98 U. S. 403 [25 L. Ed. 206], which was a case very similar in this respect to the present. It was there held that the preliminary proceedings were in the nature of an inquest to ascertain the value of the property condemned, or sought to be condemned by the right of eminent domain, and was ‘not a suit at law*321 in the ordinary sense of those terms,’ consequently not ‘a suit’ within the meaning of the removal acts; but that, ‘when it was transferred to the district court by appeal from the award of the commissioners, it took, under the statute of the state, the form of a suit at law and was Thenceforth subject to its ordinary rules and incidents.’ ”
Searl v. School District, 124 U. S. 197, 8 Sup. Ct. 460, 31 L. Ed. 415, was a case in which condemnation proceedings, had been instituted in Colorado by the school district, to condemn certain land for school purposes. The statute law of Colorado was summarized by justice Matthews, who delivered the opinion of the court, as follows:
“The Code of Civil Procedure of that state provides for the appropriation of private property for public use, and authorizes a judicial proceeding in the district or county court for the purpose of ascertaining and awarding the amount of compensation to be paid therefor. It requires the filing of a petition setting forth the authority of the plaintiff to acquire the property in that mode, the purpose for which it is sought to be taken, a description of the property, and the names of all persons interested therein, who are to be made defendants and brought into court by the service of a summons or other process, as in other cases is provided by law. It provides, in the first instance, for the ascertain:went of the amount of compensation or damages by a commission of three freeholders, but also that before the appointment of such commissioners any defendant may demand a jury of six freeholders residing in the county, to ascertain, determine, and appraise the damages or compensation to be allowed, and prescribes in snch case the mode of (rial, at which the court or judge shall preside ill the same manner and with like power as in other cases; that evidence shall be admitted or rejected by, the court or judge according to the rules of law; and at the conclusion of the evidence that the matters in controversy may be argued by counsel to the jury, and at the conclusion of the argument that the court or judge shall instruct the jury in writing in the same manner as in eases at law: that, motions for a new trial, and to set aside the verdict, may he made and heard as in other eases; that an appeal may be taken to the Supreme Court in the same manner as provided by law for taking appeals from the district court to the Supreme Court; and that a writ of error from the Supreme Court shall lie in every such ease to bring in review the final determination.”
It was held that such a proceeding was a suit within the meaning of the Constitution and acts of Congress, conferring jurisdiction upon the courts of the United States. Comparing the case with the cases of Boom Co. v. Patterson and Pacific Railroad Removal Cases, it was said:
“The appointment of (he commissioners is not, as in the case of Boom Co. v. Patterson and the Pacific Railroad Removal Cases, a Step taken by the party seeking to make the appropriation ex parte and antecedent to the actual commencement of the adversary proceeding inter partes, which constitutes a suit in which the controversy takes on the form of a judicial proceeding. because under the Colorado law the appointment of the commissioners is a step in the suit after the filing of the petition and the service of summons upon the defendant.. It is an adversary judicial proceeding from the beginning. The appointment of commissioners to ascertain the compensation is only one of the modes by which it is to be determined. The proceeding is therefore a suit at law from the time of the filing of the petition and the service of process upon the defendant.”
It is, however, urged that the more recent case of Traction Co. v. Mining Co., 196 U. S. 239, 25 Sup. Ct. 251, 49 L. Ed. 462, is a final determination that any step or proceeding by the state to take private property for public use is, from its inception, a civil action within the meaning of the federal judiciary act. We find nothing in that case
Complainant’s contention that the statute violates the fourteenth amendment to the Constitution of the United States, in that it deprives complainant of its land without due process of law, by permitting the drainage district to take possession of the land pending the final hearing upon appeal, by paying the amount of the appraisement and giving an approved bond to pay any additional sum which should be awarded upon such appeal, has been too often decided against such contention to require extended consideration. The question was before the court in Backus v. Fort Street Union Depot Co., supra, and it was said:
"Does tills amount to a denial of tlie right to that protection to properly which is guaranteed by the fourteenth amendment to the federal Constitution? In other words, is it heyond the power of a state to authorize in condemnation cases the taking of possession prior to the final determination of the amonnt of compensation and payment thereof? This question is fully answered by tlie opinions of tills court in Cherokee Nation v. Southern Kansas Railway, 135 U. S. 641, 10 Sup. Ct. 965, 34 L. Ed. 295, and Sweet v. Rechel, 159 U. S. 380, 16 Sup. Ct. 43, 40 L. Ed. 188. There can be no doubt that if adequate provision for compensation is made authority may be granted for taking possession pending inquiry as to the amount which must be paid and before any final dstermination thereof.”
The bill in this case having been filed in aid of a jurisdiction wrongfully assumed, it follows that the injunction was improvidently awarded, and the judgment of the Circuit Court granting to complainant a temporary injunction is reversed, and the cause is remanded for proceedings in accordance herewith.