Memphis, Kansas & Colorado Railway Co. v. Parsons Town Co.

26 Kan. 503 | Kan. | 1881

The opinion of the court was delivered by

Horton, C. J.:

Several objections to the validity of the condemnation proceedings for the railway route through the real estate of the defendant in error are urged. In our view, only one need be considered, as that one is fatal. It appears from the record, that notice was properly given that the commissioners would commence to lay off the railway route in Labette county on May 1, 1878, at nine o’clock a. m., and that upon said day the commissioners proceeded in the discharge of their duties, continuing their labors from day to day, and on the 4th of May adjourned, subject to the call of the president of the board; all of which doings the commissioners embodied in a written report, and filed the same in the office of the county clerk of Labette county, on May 6, 1878. On the 14th of May, 1878, without notice to anyone, the commissioners met again, and thereupon proceeded to locate a further route, &c., for the railway, over the land now in controversy. A written report of this proceeding was filed in the office of the county clerk, on May 15, 1878. The trial court found as a matter of law, that the adjournment of the commissioners on May 4, 1878, not to a day certain, but merely upon the call of the president of the board, rendered the subsequent proceedings at the meeting of May 14, void, excepting as to parties having actual notice thereof. We concur in this conclusion of law, and think that there was such an abandonment of the proceedings commenced under the notice published prior to May 1st, that they could not be continued nor revived after May 4th, without new notice. The adjournment without specifying a day for meeting, caused the commissioners to lose jurisdiction. Counsel for plaintiffs claim that the jurisdictional fact was the publication in the newspaper; that thereby jurisdiction attached, and was complete at the first meeting of the commissioners. They then refer us to Commissioners of Leavenworth County v. Espen, 12 Kas. 531; Venard v. Cross, 8 Kas. 258, and Beabe v. Scheidt, 13 Ohio St. 406, as authorities that notice of the meeting of commissioners is not jurisdictional. A part of the argument of counsel is correct, and a part faulty. The jurisdictional fact, is the publication in a newspaper as prescribed by the statute, but if the proceedings be abandoned for any reason, the subsequent doings have no validity on account of the prior publication. The authorities referred to are not applicable, because in the laying-out and location of highways, the jurisdictional notice is given before the order appointing viewers, and therefore it was held that the notice to the land-owners afterward is not a jurisdictional one. Here, the notice was jurisdictional, and we deem all proceedings ended thereunder by the adjournment of the commissioners on May 4th without day. In anticipation of this view, the counsel of plaintiff contend that actual notice of the subsequent meeting of the commissioners on May 14th was had by the defendant, because Angelí Matthewson, who was the agent of the defendant to sell property at a price prescribed by it, and receive the money paid on such sales, and to attend to the payment of taxes on its property, was present at the adjournment of the commissioners on May 4th, and was also present at the reconvening of the commissioners on May 14th. The special authority conferred by the Parsons town company upon Matthewson did not authorize him to appear in the condemnation proceedings and attend thereto for the benefit of the company. Notice to him, therefore, was not notice to the company. It also appears from the record, that Matthewson was the president of the railway company, and therefore he could not act both as the agent of the railway company and the agent of the town company. “No man can serve two masters.”

The judgment of the district court must be affirmed.

All the Justices concurring.