(184 N.W.)

owner, with reference to which legislation this court is committed to the proposition Harrison, J., remarked: that, before the property of a citizen may be taken for public use under the power of eminent domain, the owner is entitled to such notice of the proceedings as will give him an opportunity to be heard upon the questions involved.

"Here is conferred the power and authority to one party to appoint or form the tribunal or body, take, hear or examine the evidence, and assess the amount of recovery, without any notice to other parties concerned, or any provision for them being in any manner represented in the proceedings, and providing for an appeal from an adjudication of their rights about which they can have no knowledge, and making the remedy by appeal exclusive. Can this be done? We are satisfied it is within the inhibition of the provisions of the Constitution, as an attempt to appropriate or damage property 'without due process of law,' and will not bar parties of the right to an action for the damages sustained, and the fact that the legislature has failed to provide for any notice cannot bar the right to compensation." The court, however, as noted by Letton, J., in Enterprise Irrigation District v. Tri-State Land Co., 92 Neb. 121, on page 143, 138 N. W. 171, restricted their holding to the proposition that in such case an action for damages would not be barred.

In Wilber v. Reed, 84 Neb. 767, 122 N. W. 53, the validity of a portion of section 8605, Ann. St. 1907, was under consideration. By that section the city of Beatrice and others of its class were authorized to appropriate private property for the purpose of public parks, after providing for the appointment of appraisers, and notice to the owners of the time of making the assessment for damages, and contained the following:

"At the next regular meeting of the council after such assessment, the council may vacate such assessment, if unjust, and, if so vacated, or in case of a failure to obtain the assessment, for any cause, the council by resolution may appoint three other assessors; and, in that case, such new assessors shall, on the day following their appointment, without further notice, meet at the place fixed by the ordinance for meeting of the assessors, and * shall proceed as provided for the first board of appraisers."

For the purpose of determining the legislative interpretation of "due process of law," we have examined the other enactments on the subject of eminent domain as contained in the Annotated Statutes of 1913, and find that, in 23 out of 25 such enactments, notice to the property owner of the time and place of the meeting of the appraisers is required, either by specific direction or by reference to other enactments where such notice is required. It is contended, however, by the appellant that the provision for the issuance of notice by the county court satisfies the requirement of due process of law. It has been held that the appraisers in condemnation proceedings, in determining the value of the property taken, or the amount of damages, exercise judicial functions (In re Appraisement of Omaha Gas Plant, 102 Neb. 782, 169 N. W. 725); in other words, that upon this question the proceeding is in its nature judicial, and therefore, in determining whether or not the notice provided is sufficient, the principle governing such proceeding should govern.

The notice in question advised the property owner that a petition was filed, and appraisers appointed May 1, and that the hearing on said petition would be had May 20. In the meantime the appraisers had taken the oath, determined the question of damages, all without notice to the property owner until the report was filed, not, later than the day of hearing. We are unable to perceive how this can be looked upon as due process of law. The property owner, when he comes into court on the day of hearing, finds the only question upon which he has a right to be heard at all already determined, and the only remedy afforded him is an appeal, to get the benefit of which he must give bond, and probably incur the expense of employing counsel. Furthermore, what is this hearing to which he has been invited? Certainly not upon the question of damages which shall be awarded him, because the act confers no authority upon the county judge or court to alter the appraisement in any way. In fact, the only peril in which the appraisement stands is of being rejected by the school board, a right granted it by section 6 of the act in case the assessment is not satisfactory; while, if satisfactory, section 5 merely requires the board to signify its acceptance thereto in writing, and deposit the amount thereof in court, when a fee-simple title will vest in the district. The only matters upon which the owner can be heard are those referred to in section 8; i. e., These cases are sufficient to show that that more than ten acres are sought to be

The matter proceeded to the point where the appraisers met for the purpose of making their appraisement, when they were restrained by an order of the district court. Subsequently the restraining order was dissolved, and the council proceeded under that part of the section above quoted to appoint three other appraisers, who made the appraisement, and thereafter plaintiff brought the action to enjoin the officers of the city from taking possession of the property upon the ground that quoted portion of said section was unconstitutional in failing to provide notice to the property owner of the time and place of meeting of said appraisers, and such was the holding of the court; citing People v. Tallman, 36 Barb. (N. Y.) 222; Rathbun v. Miller, 6 Johns. (N. Y.) 281, and other cases.

taken, or where the property constitutes an orchard, garden, or public park, or, if outside the corporate limits of a city or village, that it lies within 20 rods of a residence with no highway intervening. In the respect now under discussion the act is not unlike one which should provide that, in all actions brought before a justice of the peace, the defendant should have notice of the hearing, but that judgment should be rendered for the plaintiff, from which the defendant might appeal. If the analogy is perfect, we hardly think it would be contended that such a proceeding constituted due process of law. [2, 3] The case of Sterritt v. Young, 14 Wyo. 146, 82 Pac. 946, 4 L. R. A. (N. S.) 169, 116 Am. St. Rep. 994, contains a very full and learned discussion of this question, citing a number of cases in support of their conclusion, among others Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289, quoting from the opinion of Earl, J.:

It was

adequate. In Hood River Lumbering Co. v. Wasco County, 35 Or. 498, 57 Pac. 1017, however, the court held that a statute providing for the taking of private property under the power of eminent domain containing no provision for notice to the owner is void; and Judge Bean distinguishes the case of Branson v. Gee, supra, remarking: "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. * * held in these cases that the city charters were constitutional and valid, although they made no provision for notice to the property owners; but this holding was expressly put upon the "I am of opinion that the Constitution sanc- ground that 'the city is a miniature state-the tions no law imposing such an assessment, with-council is its legislature, the charter is its out 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 them, and give them the right to a hearing and an opportunity to be heard. It matters not, upon the question of the constitutionality of such a law, that the assessment has, in fact, been fairly apportioned. The constitutional validity of the law is to be tested, not by what has been done under it, but by what may, by its authority, be done."

McGavock v. Omaha, supra, is also cited. The case is on all fours with the one at bar and involved the validity of a statute under the power of eminent domain. See, also, People v. Tallman, 36 Barb. (N. Y.) 222, Anderson v. Tuberville, 46 Tenn. (6 Cold.) 150, Dodd v. Hart, 8 Del. Ch. 448, 68 Atl. 397, and Burns v. Multnomah R. Co. (C. C.) 15 Fed. 177. The last two cases are cited by appellant, but they hold the reverse of his contention.

For the purpose of sustaining the constitutionality of the statute in question, appellant cites the case of Branson v. Gee, 25 Or. 462, 36 Pac. 527, 24 L. R. A. 355, a case, strictly speaking, referable to the police power, rather than power of eminent domain. The statute permitted the road supervisors to enter upon private property adjoining the road and take therefrom gravel and materials for the purpose of making repairs, and provided that the owner might file his claim with the county court and have his damages assessed. The action was brought against the road supervisors, and the court held that the remedy of the plaintiff was that provided by the statute, and, the proceedings being instituted by the state, no notice was required before the taking, and that the remedy to the property owner was

constitution; and it is enough if, in that, the power is granted in general terms, for, when granted, it must necessarily be exercised subject to all limitations imposed by constitutional provisions, and the power to prescribe the mode of its exercise is, except as restricted, subject to the legislative discretion of the council.' Mr. Justice Brewer, in Paulson v. Portland, 149 U. S. 38, 13 Sup. Ct. 753."

The failure to distinguish between the police power, the power of taxation, and the power of eminent domain, has led to some confusion in the cases upon the question of due process of law, as was noted by Post, C. J., in Chicago, B. & Q. R. Co. v. State, 47 Neb. 549, 565, 66 N. W. 624, 41 L. R. A. 481, 53 Am. St. Rep. 557. Such distinctions are thoroughly pointed out and discussed in 20 C. J. 517, § 5, consideration of which will explain many of the cases holding that notice to the property owner affected may be implied; for example, Enterprise Irrigation District v. Tri-State Land Co., 92 Neb. 121, 138 N. W. 171, which was a case involving the exercise of the police power, and State v. Several Parcels of Land, 83 Neb. 13, 119 N. W. 21, L. R. A. 1916E, 1, a tax case.

The case of Buckwalter v. School District, 65 Kan. 603, 70 Pac. 605, also cited by appellant, was an action in ejectment against the school district, which by mistake had built a schoolhouse upon the land of plaintiff. A statute covering such situations permitted the district to apply to the county judge to appoint freeholders to appraise the value of the land, and thereupon title should vest in the district, but omitting to provide for notice of such application to the owner. It was held that ejectment could not be maintained, that compensation need not be made before the taking, but that the owner was not bound by the amount of the assess

(184 N.W.)

ment, and might either appeal therefrom, [ statute upon the mere probability that the or bring an action to recover the value of owner may have notice. the land; the court saying, 65 Kan. at page 607 (70 Pac. 607):

The cases cited to support that holding fail to do so. Huling v. Kaw Valley Railway & Improvement Co., 130 U. S. 559, 9 Sup. Ct. 603, 32 L. Ed. 1045, merely holds that notice by publication is sufficient to a nonresident owner, and Hagar v. Reclamation District No. 108. 111 U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569, McMillen v. Anderson, 95 U. S. 37, and Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616, were all cases involving assessment of a tax. Furthermore, it appeared that the proceedings were in December, 1889, and the plaintiff had notice of them as early as January 1, 1890, by personal correspondence with the engineers in charge, and took no action until December, 1897; and the bill might well have been dismissed the fact, if true, that our holding invalid on the ground of want of equity. In any event we cannot approve of the reasoning in that case, which rests the validity of the 184 N.W.-10

We are constrained to hold the act uncon- [ within a reasonable time after he had actual stitutional, and therefore the judgment of notice. The remedy there pointed out would the district court is right and is affirmed.

ALDRICH, J., dissents.

doubtless require the owner to file a claim with the county board, though the opinion is silent on that point, and it is presumed that body would do its full duty. In the DEAN, J. (dissenting separately). The present case plaintiffs forfeited no property present case does not present a controversy rights. True, they could not be heard bebetween private persons. It is a controversy fore the appraisers after the report was filed between private persons and a consolidated with the county judge, but plaintiffs were rural school district, an arm of the sover- not remediless, as pointed out in the McGaveign government that functions under its au-ock Case and in the Storm Case. thority, whose officers are charged with the responsibility that pertains to the elementary education of the youth of the district. It is conceded that plaintiffs were without actual notice of the appointment of the appraisers until three days thereafter, namely, May 3,

1920.

The point that plaintiffs stress the most is technical. They argue with great force that they were not formally notified of the time when nor the place where the appraisers were to meet. Questions pertaining to the value of the land and to the damage suffered, if any, are treated as of no concern, but firm reliance is placed upon the failure of formal service of notice.

In 2 Lewis, Eminent Domain (3d Ed.) § 568. the Storm Case is cited. The text reads:

"In Nebraska it has been held that, while nodiction and enable the land to be bound by its tice by publication will give the tribunal jurisjudgment, the landowner, who does not receive actual notice of the proceedings in time to make his claim pursuant to the published notice, may present it afterwards and will be entitled to have it allowed."

For other reasons plaintiffs are not in posi tion to question the constitutionality of the act. The question of value is not referred to in the evidence, nor is it pleaded in the petition that the five-acre tract exceeded $1,500 in value or that plaintiffs were damaged in exThe same principle is involved in McGav-cess of that sum. With respect to value they ock v. City of Omaha, 40 Neb. 64, 58 N. W. 543. In that case, as here, the question of notice was involved, and we held:

"A notice must be given by a city of proceedings to assess the damage to property which will be caused by a proposed change of the grade of a street in said city and of the time and place where the appraisers appointed for the purpose of assessing such damages will meet, in order that the owner of the property so damaged may have an opportunity to be heard in his own behalf. * If the notice is not given, the appraisement proceedings will not exclude the party of any remedy, but such party may commence an action at law to recover damages caused by such change of grade to property of which he or she is the owner."

Plaintiffs had an adequate remedy at law. As in the McGavock Case they were without notice, but their remedy was to "commence an action at law to recover damages," if any they suffered beyond the amount of the appraised value. If plaintiffs' remedy at law was adequate, further inquiry, under the weight of authority herein noted, should cease with respect to the constitutionality of

the act.

Pawnee County v. Storm, 34 Neb. 735, 52 N. W. 696, is in point. The opinion is by Maxwell, C. J. That case had to do with the location of a public highway over the land of a nonresident owner. The usual statutory notice was published. The owner, as in the present case, was without actual notice of the proceeding until after the time for filing claims for damages had expired. The court held that the right of the owner to compensation was not forfeited, and that he might recover the value of the land so taken

have pleaded only conclusions. On this point the petition reads:

"Plaintiffs further allege that the defendants have deposited with the county judge the condemnation money and are now plowing said land preparatory to putting in fall wheat thereon, and if the defendants are permitted to take possession of said tract of land they will suffer irreparable injury, for which they have no adequate remedy at law."

In 21 R. C. L. 440, § 5, it is said:

"It is a well-settled rule that legal conclusions are not to be pleaded, for it is the duty of the courts to declare the conclusions, and of the parties to state the premises. The allegations of a conclusion of law raises no issue, need not be denied, and its truth is not admitted by a demurrer to the complaint containing it."

Having failed to plead or to prove damages, plaintiff's cannot be heard to complain of the act on constitutional grounds. Cram v. Chicago, B. & Q. R. Co., 85 Neb. 586, 123 N. W. 1045, 26 L. R. A. (N. S.) 1028, 19 Ann. Cas. 170, and 228 U. S. 70, 33 Sup. Ct. 437, 57 L. Ed. 734. See note L. R. A. 1917C, 142. It may be noted incidentally that the Cram Case was affirmed on appeal to the Supreme Court of the United States. In the Cram Case it is said:

"Until defendant is shown affirmatively to have been injured, he cannot be heard to complain that the act under which the suit is brought is unconstitutional." 85 Neb. 586, 123 N. W. 1045, 26 L. R. A. (N. S.) 1028, 19 Ann. Cas. 170.

Unless this appears he has not been deprived of due process.

In Cooley, Constitutional Limitations (7th Ed.) at page 232, it is said:

(184 N.W.)

"Nor will a court listen to an objection made | present case neither the equities nor the law to the constitutionality of an act by a party whose rights it does not affect, and who has therefore no interest in defeating it."

In Clark v. Kansas City, 176 U. S. 114, 20 Sup. Ct. 284, 44 L. Ed. 392, Mr. Justice McKenna cites with approval the foregoing language of Judge Cooley, and adds:

"We concur in this view, and it would be difficult to add anything to its expression."

State v. Currens, 111 Wis. 431, 87 N. W. 561, 56 L. R. A. 252:

are with the plaintiffs. In brief, it appears that a law has been declared unconstitutional at the suit of "a party whose rights it does not affect" and who "merely assumes to champion the wrongs of others." A slender judicial thread is it not upon which to hazard the validity of a legislative act?

McSHANE v. MURRAY et al. (No. 21682.)

"Statutes are not to be declared unconstitutional at the suit of one who is not a sufferer (Supreme Court of Nebraska. July 7, 1921.) from their unconstitutional provisions.

#

We cannot set aside the acts of the Legislature

(Syllabus by the Court.)

at the suit of one who, suffering no wrong him-1. States 191(1)-State's constitutional imself, merely assumes to champion the wrongs of others."

In Wellington, Petitioner, 16 Pick. (Mass.) 87, 26 Am. Dec. 631, the court, speaking by Shaw, C. J., says:

"Where an act of the Legislature is alleged to be void, on the ground that it exceeds the limits of legislative power and thus injuriously affects private rights, it is to be deemed void only in respect to those particulars, and as against those persons, whose rights are thus affected."

If plaintiffs were damaged in excess of $1,500 by the appropriation of their land, they should have so alleged in plain and unmistakable language. Or if the tract, by reason of location or because of contiguity to other lands of plaintiffs, or for any other good and sufficient reason, caused them to be damaged in a sum exceeding that allowed by the appraisers, they should have pleaded

the facts.

munity from suit cannot be waived by volun. tary general appearance by Attorney General.

Where by its Constitution the state is immune from suits against it except as the Legislature otherwise provides, the immunity thus provided cannot be waived by a voluntary general appearance in the case and a participation in the trial thereof upon its merits by the Atan unauthorized action torney General in brought against the state.

2. States ~212—Decree against state in unauthorized suit void.

A decree rendered against the state under the circumstances above stated is void as

against the state, and upon appeal to this court will be vacated and set aside in so far as the same seeks to bind the state.

3. Dismissal and nonsuit

42-Dismissal of

state held not to affect action against other defendants.

tion, however, does not affect the action against Such dismissal of the state from the litigaother defendants against whom the plaintiff had a right to maintain a suit.

4. Boundaries 37(3)-Evidence sustaining finding as to location of government quarter corner.

With respect to the judicial annulment of a legislative act, I adhere to the views expressed in the dissenting opinion in the nonpartisan judiciary case entitled, State v. Junkin, 85 Neb. 1, at page 11, 122 N. W. 473. defendants as to the true boundary line between In a dispute arising between plaintiff and wherein the following authorities are cited: their adjoining lands, the sole question deCooley, Constitutional Limitations (7th Ed.) pended upon the genuineness of a certain alp. 227; Professor Wigmore, 23 Am. Law Re-leged original government quarter corner. The view, 719; City of Topeka v. Gillett, 32 Kan. 431, 4 Pac. 800; Ogden v. Saunders, 12 Wheat. (U. S.) 213, 6 L. Ed. 606; Hoover V. Wood, 9 Ind. 296.

The delicate duty of declaring that a legislative act is void is an assumption of judicial authority that should not be exercised except upon the clearest grounds. An attack against an act of the legislature on alleged constitutional grounds should be the last resort of the litigant. To hold an act invalid

should be the last resort of a court. When a litigant presumes to raise his hand against the validity of a legislative act he should first plead facts showing clearly and affirmatively that his rights will be injuriously affected by an enforcement of the act. In the

trial court found for the plaintiff and estab-
lished the corner as contended for by the plain-
the decree of the lower court.
tiff. Evidence examined, and held to support

Appeal from District Court, Sheridan County; Westover, Judge.

Suit by Barney McShane against John Murray, the state of Nebraska, and another. Decree for complainant, and defendants appeal. Decree vacated as to the State, and as

to the other defendants affirmed.

Clarence A. Davis, Atty. Gen., and Mason
Wheeler, Asst. Atty. Gen., for appellants.
J. H. Edmunds, of Rushville, and J. E.
Gilmore, of Hay Springs, for appellec

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