Dissenting Opinion
Arterburn, J.As I understand the majority opinion it holds that the only notice necessary to meet the requirements of due process in an eminent domain proceeding is that of the notice to fix the damages. In other words, a property owner from whom property is to be taken forcibly, is not entitled to due notice and a hearing on the right, authority, or capacity ■ of the person or corporation who proposes to take it. I feel this runs counter to the fundamental constitutional concepts of due process.
The confusion in this area arises from a failure to distinguish the steps in taking of property for a public use. The first notice should issue on the right to take the property in the first instance, that is 'whether or not the one seeking to take the property has the legal capacity, right or authority to do so. For example, whether or not a school corporation-may take cemetery property already dedicated to a public use, or whether a park board can acquire land in another county and convey it to the state, or whether or not the proposed project is within the legal authority of .the person or corporation that desires to take the property.- May a railroad or other utility take private property forcibly for some alien use from a private owner' without ¿iving such owner a notice and an opportunity to be heard on that question? The Cemetery Co. v. Warren Sch. Twp., et al. (1957), 236 Ind. 171, 189, 139 N. E. 2d 538; Foltz, Van Camp Hdw., etc. v. City of Indpls., et al. (1955), 234 Ind. 656, 130 N. E. 2d 650; Joint County Park Bd. v. Stegemoller (1949), 228 Ind. 103, 88 N. E. 2d 686, 89 N. E. 2d 720.
*631The issue of right and capacity or authority to bring the action should be distinguished from that of the issue of the reasonableness, necessity or policy of taking which cannot usually be questioned because it is primarily discretionary and legislative. Whether or not the property is actually needed for the project is not an issue and cannot be questioned in the courts.
I feel this distinction between the right or authority to take and the need or reasonableness of the taking is lost sight of in the majority opinion. The quotes and cases referred to in the majority opinion deal with the necessity or reasonablenes of the taking, not the right to take in the first instance. Slentz et al v. City of Ft. Wayne (1954), 233 Ind. 226, 118 N. E. 2d 484; Falender v. Atkins (1917), 186 Ind. 455, 114 N. E. 965.
In the Cemetery Case, supra, p. 189, we said:
“To summarize, we hold a court may not inquire into the administrative determination of the propriety, reasonableness, or necessity for the taking of property by eminent domain by a proper authority, except for fraud, or where the proceeding is a subterfuge for taking property for private use. On the other hand, the courts have the duty to determine the legal authority and the limits thereof of those persons or bodies attempting to exercise the power of eminent domain.”
In the case before us the only notice of the intentions to take the property of the appellants was a publication in the local newspaper of a declaratory resolution addressed “To Whom it may Concern.” The notice did not mention the name of the appellant owners any place in the notice, yet appellants were the only property owners whose property was to be taken. The city officials in that small place knew the appellants who lived in the same community.
In Walker v. Hutchinson (1956), 352 U. S. 112, 1 L. Ed. 2d 178, 182, 77 S. Ct. 200, the United States *632Supreme Court said with reference to such kind of notice:
“It is common knowledge that mere newspaper publication rarely informs a landowner of proceedings against his property. In Mullane [339 U. S. 306, 94 L. Ed. 865, 70 S. Ct. 652] we pointed out many of the infirmities of such notice and emphasized the advantage of some kind of personal notice to interested parties. In the present case there seem to be no compelling or even persuasive reasons why such direct notice cannot be given. Appellant’s name was known to the city and was on the official records.”
In the case before us, aside from the failure to name the appellants in the notice, by which the board assumes to acquire jurisdiction, it also lacked a proper description of the real estate to be taken. The notice referred to the easement “according to plans and specifications now on file in the office of the Clerk-Treasurer of said city.” Even if the appellant was required to go to the Clerk-Treasurer’s office to see if his property was described therein (as it is held every property owner would accordingly be on notice to do), when he got there he would have found no definite description. This is revealed by the fact that when the notice was later served on appellants as to damages assessed for the taking, that notice merely said, “which right of way will hereafter be more specifically located.”!
The majority opinion says the description is questioned only in the first notice of the declaratory resolution as to adequacy. We ask, how could the initial notice of intentions to take certain real estate addressed “To Whom it May Concern,” be sufficiently definite as to the real estate if, in a later notice, fixing the damages assessed, that notice did not even then state definitely the location of the right-of-way? The majority opinion says: “. . . These (description of real estate) and the *633record in this proceeding were on file in the office of the city clerk. . . .” (p. 9 Opinion) What good would a trip to the Clerk-Treasurer’s office have served in making definite the description in the declaratory resolution and notice published thereon?
We further ask, how could damages be assessed or any proper objections prepared thereto for a defense, when the property was not definitely described in the second notice assessing damages? No one can say “which said right of way will hereafter be specifically located,” is any description under due process for any purpose. The fact is, both notices — that of the right to take, and that of the damages assessed — are inadequate and insufficient.
It is my view that the general notice given by the city in the newspaper by publication of the declaratory resolution, is for the purpose of advising the taxpayers generally of the city so they may object to the advisability of the city going into the proposed project as a civic improvement. It is not intended as a notice to the private property owner whose property is to be taken, and cannot stand on that basis for taking his private property with notice. Such publication where personal service may be made lacks due process under the Walker Case, supra.
I am personally very fearful of a rule which will permit boards and commissions and other officials quietly and sometimes secretly to enter a resolution taking a person’s property without any right to defend and only the right to question the damages. That is what the opinion holds. I do not think it is due process to publish notice in a newspaper “To Whom it May Concern” without naming the landowners involved and without describing the property so the landowners can understand that their property is involved. They *634should not have to make trips to city halls and other public buildings and peruse plans and other specifications with the thought in mind that they might possibly be one of the parties whose property is. being taken. Too often notice by publication is used with the hope that the interested party will not see it even when named. With all the condemnation suits to be faced by the citizens of Indiana in the near, future, I think they are entitled to be heard on the right to take their property first.
There is no reason why descriptions in eminent domain proceedings, where property is being taken from somebody forcibly, should not be definite and certain, so that the individual knows what they are trying to do to him, and he can determine the damages. He should not have to hunt up plans and specifications which may be changed from time to time, or depend upon descriptions tied into movable objects or landmarks, such as bridges or pipelines which may be moved.
The state and public corporations employ engineers for condemnation proceedings and they should properly describe the property involved, instead of using the sloppy method exhibited in this case.
This is not a case involving a deed between two private parties, in which the court attempts to determine exactly what was conveyed, and the same rule for determining the adequacy of the description is not applicable. This is a law-suit in which property is forcibly being taken from another person. He is entitled to adequate and definite notice of what is proposed. The rule in Indiana seems to support such a proposition. See Southern Ind. R. Co. v. Indianapolis, etc., R. Co. (1907), 168 Ind. 360, 81 N. E. 65,13 L. R. A. (N. S.) 197; The Indianapolis and Vincennes Railroad *635Company v. Newsom (1876), 54 Ind. 121; Prather v. The Jeffersonville, Madison and Indianapolis Railroad Co. et al. (1875), 52 Ind. 16.
The ownership of property is respected under our law. One may not be deprived of this ownership at the whim of some governmental unit and leave the owner only the right to question the damages. I deem the contrary to be the holding in the majority opinion.
.“Statutes of-eminent domain being in derogation of the common law rights to property must be strictly construed, both as to the extent of the power and as to the manner of its exercise. Kinney et al. v. Citizens Water, etc., Co. (1909), 173 Ind. 252, 90 N. E. 129, 26 L. R. A. (N. S.) 195; Westport Stone Co. v. Thomas (1908), 170 Ind. 91, 83 N. E. 617.” Cemetery Co. v. Warren Sch. Twp. et al., supra, 236 Ind. 171, p. 184, 139 N. E. 2d 538.
In Cemetery Co. v. Warren Sch. Twp., et al., supra, at p. 177, the appellee took the position that the Cemetery Company whose land was proposed to be taken, had no right “to show cause why the land should not be taken.” " We said there that the reasonableness or necessity of taking could not be questioned, but the authority or initial right to bring the action and take cemetery property for school purposes could be questioned. We sáid at p. 178:
“The gist of appellee’s contention is that the trial court lacked jurisdiction to consider appellant’s objections. .The implications of this position would seem to be at variance with the normal concept of -due process. If the contention is valid it would mean that the courts are prevented from adjudicating the legal right to take property merely upon the filing of a suit with certain allegations therein, without proof, and without permitting the parties thereto to make objections, questioning the authority to bring the suit. The position of the court would thereby be reduced to a mere administrative tribunal with a mandatory duty of ordering an *636appropriation and fixing the value of the property taken. The function of adjudicating the legal rights of the parties would be denied the courts. As long as the judiciary remains an effective part of our government it cannot be deprived of its proper role: that of determining the legal rights of the litigants. Likewise, every person is entitled to seek relief from oppressive actions, and that place in a law-abiding society is in the court room. At some place in the proceedings, and by some method the landowner is entitled to contest the legality of the condemnation proceedings, and question the authority under which the attempt is being made to take his property including the issue of whether or not it is a private or public purpose. Joint County Park Bd. v. Stegemoller (1950), 228 Ind. 103, 88 N. E. 2d 686, 89 N. E. 2d 720; Foltz, Van Camp Hdw., etc. v. City of Indpls. et al. (1955), 234 Ind. 656, 130 N. E. 2d 650.”
The general eminent domain statute [§3-1705, Burns’ 1946 Repl.] recognizes the right to make objections to the initation of eminent domain proceedings and provides therefor as follows:
“Any defendant may object to such proceedings on the ground that the court has no jurisdiction either of the subject-matter or of the person, or that the plaintiff has no right to exercise the power of eminent domain for the use sought, or for any other reason disclosed in the complaint or set up in such objections.”
The statute provides for an appeal from an adverse ruling. We should not deny a party these rights by approving a narrower statute which does not meet the requirements of due process in this respect by failing to provide for a proper notice and hearing on the authority and right to take the property initially. Such a statute with such a defect is unconstitutional.
I am particularly concerned about the type of publication and the abuse to which it can lead because of *637the lack of notice both to the person and as to the property to be taken. Every property owner will be bound by every notice in a newspaper addressed merely, “To Whom it May Concern,” and then have to make trips to some public office to examine plans and specifications to see if his property is included therein, and if it says “which right-of-way will hereafter be more specifically located,” he will be bound nevertheless. I do not believe that is sufficient notice under the due process clause of the United States Constitution.
I think the judgment should be reversed.
Note.—Reported in 154 N. E. 2d 33.