Leonard v. Sparks

Ellison, J.

A perusal of the statement of this cause will disclose that the question for solution here is that of the validity of the proceedings had in the matter of the condemnation of property for a public street; in other words, the taking of private property for public use, where such proceedings originated before an inferior tribunal of limited statutory power only. "Where such is the case, we merely assert common, learning when we say that a strict construction must be applied and that every statutory requirement must appear to have been performed in order to validate the proceedings. State ex rel. Greely v. City of St. Louis, 67 Mo. 113; Ells v. Railroad, 51 Mo. 200.

This strict and close adherence to the statutory requirement must be followed until jurisdiction be fully obtained; after having acquired jurisdiction there are doubtless some irregularities which would not subject the proceedings to collateral attack. And in this connection plaintiff made one of his principal points in argument. He contends that jurisdiction of the subject-matter was obtained by the mayor’s court upon the passage of the ordinance prescribing the limits in which private property may be benefited, and also, perhaps, the filing with the mayor the engineer’s statement; that jurisdiction of the person of Bouton, who then owned the property, was obtained by service of the notice upon him, however erroneous or defective such service may have been; that defective service, unlike no service, causes jurisdiction over the person to attach, and that the defect can only be reached directly and not collaterally. These are his contentions and he has cited strong authority which maintains that irregular or defective service of notice secures jurisdiction of the person and will not defeat .jurisdiction of the cause. Freeman on Judg., sec. 26; Harrington v. Wofford, 46 Miss. 31; Isaacs v. Price, 2 Dillon C. C. 347; Ballinger v. Tarbell, 16 Iowa, 491. The latter ease was where the statute required five days for service and only four were given.

But in these authorities it appears, or is assumed, •or it is shown, that the court had jurisdiction of the subject-matter regardless of notice, and the distinction between jurisdiction of the subject-matter and the person is in the mind of those courts.

The case at bar belongs to a different class. It is of that class where the tribunal can only act conditionally ; where the notice required by the statute is a prerequisite to jurisdiction of the subject-matter. Wright v. Wilson, 95 Ind. 408; Doody v. Vaughn 7 Neb. 28; Van Auken v. Highway Com. 27 Mich. 414; Leavitt v. Eastman, 77 Maine, 117; Mills on Eminent Domain, sec. 95.

Notice, as prescribed by the statute, must be given before jurisdiction can by acquired to act at all in oases involving a special statutory proceeding for taking the property of the citizen for public use. Whether such notice be personal or constructive can make no difference in the principle. And, if not so given, the whole proceeding is void (at least as to the party affected) and may be attacked collaterally. Authorities supra, and Frizzel v. Rogers, 82 Ill. 109; Hull v. Railroad, 21 Neb. 371; Commissioners v. Harper, 38 Ill. 103; Brazee v. Raymond, 59 Mich. 548; Odle v. Knisken, 54 N. Y. 52; Fravent v. Frinfrock, 43 Ohio St. 335; Platt v. Highway Com. 38 Mich. 247; Morgan v. Railroad, 36 Mich. 428; Stanford v. Worn, 27 Cal. 171.

The case last cited was a defective or irregular service, in that the publication of the notice was for a shorter period than that prescribed. The case of Morgan v. Railroad was where the notice was mailed to the wrong post office. In each, the proceedings were held void for lack of jurisdiction. In Leavitt v. Eastman, 77 Maine, 117, it is declared that, ‘‘under statute authority, all the statute requirements must be fully and strictly complied with. In the procedure, no step, however unimportant, seemingly, must be omitted, nor will the substitution of other steps, in the place of those named in the statute, be sufficient. To deprive the citizen of his property requires the whole statute, and nothing in the place of the statute. If there be' any degree in the importance of the requirements, that of notice of the intended proceedings, would be the' chief.”

In all the foregoing authorities the proceedings were held not merely erroneous, but void. Most of the cases, were a collateral attack on the proceedings, and in several there was a notice, but not of the character or for the time prescribed by the statute conferring .the jurisdiction.

But we need not confine ourselves to the investigation of cases in other states. The supreme court of this state, in our opinion, has passed upon kindred questions in accord with the foregoing views. The case of State ex rel. Greely v. City of St. Louis, 67 Mo. 113, was a case of defective service, though it was a direct and not a collateral attack on the proceedings, but the court says that: “Notice to relators was a jurisdictional fact and is an essential prerequisite to be complied with before their property could be assessed with benefits.” Chicago, R. I. & P. Railway Co. v. Young, 96 Mo. 39, was a direct attack upon proceedings had to open a public road and the court held: “The fact of notice having' been given in the mode pointed out by the statute, is as much a jurisdictional prerequisite as is the residence of the statutory number of petitioners. If either be lacking, the jurisdiction fails, and for the obvious reason that such proceedings, being in invitum, in derogation of the common law and common right, are always regarded as strictissimi juris, and receive no aid from intendments or implication.” Zimmerman v. Snowden, 88 Mo. 218, and Doughtery v. Brown, 91 Mo. 26, were collateral attacks upon proceedings opening public roads, and it was held that notice of the intended application for the roads should be put up for twenty days as required by statute and that such was a jurisdictional fact. The case of Whitely v. Platte Co., 73 Mo. 30, though a direct appeal to reverse the order laying out a new road, is quite applicable to this case. There was a notice, but it was defective and irregular in that it did not comply with the statute, and the court held that notice for twenty days was jurisdictional and an indispensable prerequisite.

II. It is, however, further insisted that, as the record of the mayor’s court recites that “the court ■adjudged that all parties have been duly notified and all persons interested duly served,” that this is an adjudication of service and conclusive in a collateral proceeding. This is not tenable. An inferior court with special limited jurisdiction will not be permitted to give itself jurisdiction by a mere recital that it had such. The matters showing the jurisdiction must affirmatively appear. The service which the court recites was due-service, should have been stated affirmatively.

Again, even if the court had been one of general common law jurisdiction, such recital would be considered in connection with the whole record, and would be held to refer to the particular service actually made as is shown by other parts of the record, and, if the-actual service shows itself to be fatally defective, there-is no presumption of any other service. Cloud v. Peirce City, 86 Mo. 357; Adams v. Cowles, 95 Mo. 501; Blodgett v. Schaeffer, 94 Mo. 652.

III. It is further insisted that on the appeal of the case before the mayor to the circuit court there is a. recital in the record of the circuit court, that: ‘‘Now-on this nineteenth day of March, 1888, come the parties-to these proceedings,” which is contended to be conclusive as to the appearance of Bouton, under the rule laid, down in Crow v. Meyersieck, 88 Mo. 411. The .rule in that case is not applicable. That was with reference to-jurisdiction over the person, and we have shown that in this case there was no jurisdiction by the mayor’s court over the subject-matter, in that, there was lacking-the essential prerequisite of statutory notice. It needs no argument to show that if there was no jurisdiction of the subject-matter by the mayor’s court, there could be-none conferred upon the circuit court by appeal, and that,[if such case comes before the circuit court, the proceedings should be dismissed. Haggard v. Railroad, 63 Mo. 302; Jist v. Loring, 60 Mo. 487.

IY. It is further insisted that, as the jury was not impaneled on the day named in the notice to Bouton but that the cause was continued to a period of more-than six days from the date of service upon him, he had the requisite six days’ notice. The charter-requires that a day and place for assessment shall be fixed by the mayor and that notice of such day and place when and where a jury will be impaneled shall be issued by the city clerk and that service of such notice shall be made at least six days before the day fixed for empaneling such jury. The fact that there was a continuance of the case can in no case aid the jurisdiction which had not attached. The provision of the charter in regard to continuances where proper service has not been had, does not aim to cure an improper service.When there has nob been a proper service, the mayor may, says the charter, continue the matter of impaneling a jury from time to time, and cause new notices to be issued or published until jurisdiction is obtained. This we regard as a command of the statute which is in the face of the contention here urged.

We have been cited to the case of Bowman v. Railroad, 102 Ill. 472, a condemnation case, as sustaining the view taken by pliantiff as to the continuance curing the defect of the service and as to jurisdiction being obtained by the defective service. We are not advised as to the statutes under which the proceedings were instituted. But whatever the statute may be, the court, in announcing that strict construction need not be given in such cases and that a close adherence to the statute need not be had, is diametrically opposed to our notions of the law in such cases as it has been frequently declared by our supreme court.

The result is that the judgment should be affirmed.

G-ill, J., concurs. Smith, P. J., dissents.