Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1880-08-28
THE LEGAL WORLD.

Taking Property Without Notice-The
Chief Justice Dissents-The UDfairness
of Copcealing q Public In the Especial
Law" Department The Winona st.
Peter vs. The st. Paul s. Sioux City.
Settling Their Lad Grants
The State of Minnesota, respondent, vs.. A.
E. Messenger, appellant, is the title of case
pending before the supreme court for several
months past, and in which the opinion Of the
.ice Gilflllan were fled yesterday. The case is
one of much more than ordinary interest, as 1t
serves to bring to public notice the great dam
ger inflicted upon private interests by illad-
vised or dishonest special legislation. The
case grew out of the passage by the Legislature
of 1878, of special act to legalize and estab-
lish az public highway, an old Travelled road
running through several towns IN Dakota
county. The act limited the time for taking
steps to secure compensation Tor prlvats lano
taken for the public use, to sixty days, but
provided no means Of informing parties to be
affected by it of the time of the act, and being
o special act, publicity was not given the same
BY publication as is done with general acts. A.
e. Messenger, the defendant. was among those
whose land had been used as the "old Travelled
road" which by the act was dedicated to use
as a public highway, and the iimi.
passed before the existence or effect
of the act was known to her. She thereupon
commenced suit in the district court for Da-
kota county TO set aside the condemnation,
upou the ground that the act was anconstitu-
tional in that it took private property for
public use, without any compensation there
for. The Dakota county court decided against
her. upon which she appealed to the supreme
court, with the result of disagreement of the
court, as above stated. though the majority
opinion sustains that Of the court below.
The syllabus of the majority opinion is as
Chapter 1871, SPECIAL lava 1878, is public and
not a private law, of the passage Of which the
citizens and courts are bound to
take notice. The enactment is not
in violation of the constitutional
provision that private property shall not be
taken for public use without just compense-
ton first paid or secured.
Judgment affirmed.
DISSENTING OPINION OF THE CHIEF JUSTICE.
think the act in question unconstitutional
because it does not make adequate provision
to pay or secure compensation to any owner of
land taken for the road. The land is taken
without compensation, and right to compen-
eation Ia cut off-unless the owner within sixty
DAYS from the passage of the act institute pro-
ceedines to fix the annuity, and no notice is to
be given him that he must move In the matter
except such as he may be assumed to have
from the passage of the act.
think it is great strain on the constitution
to hold. even if the act is to be deemed a
public act, and the public are presumed to
have notice of 1t, that the mere right given
the owner to secure the compensation himself.
if by chance be in fact learns of the passage OF
the act in time to exercise the right, is secur-
ing compensation within the spirit and mean-
ing of that instrument. 1t 1t is. l can only
say that the legislature is vested with power
to practically con6scate the property of the
citizen, for hundreds Of acts like this might
be passed, and none Of the persons whose
property was proposed to be taken actually
know anything about 1t until too late.
The authorities hold that acts for taking
private property for public use may put the
initiative in ascertaining the amount OF com
pensation on the owner, and may also limit
the time within which he shall do 80, and de-
bar him if he fail to move within the time. But
find more which decides that the time may
be limited from the mere date of passage OF
the act without other notice or any klnd.
While it may be conceded that an act placing
the duty on the owner to institute proceedings
to ascertain the compensation to be paid, and
limiting the time for him to do so, may be
void. IL must afford him full opportunity to
do so. And it certainly must not afford him
such full opportunity without reasonable
notice to him that he il required to
move, and of the time within which he must
move, and what he must do.
It is assumed that theact is a public statute.
1t Is general rule that all are concluslvely
presumed to know public statute from the
4: = ito Rr1t-
this act is or any like it, can be in all Its
features, q public act of which everybody IL
bound to take notice.
An act may be public as to some Of its pro
visions and private as to others.
Bacons abr, statute I.
AKRON IL, Mod. 249.
Ingram vs.. Foot, Id. 6l3.
Dire VS.. Maningham, Plowden 65.
This act, SO far as it proposes to establish the
road Is public, for it affects alike all the indi
v,duals within the district through which it il
| to pass. But SO far as it affects only an indi
vidual owner of property to be taken for the
| road it is private. In the compensation to be
| paid him. and how its amount shall be ascer
tanned, it interests only him and the State. Oh
| in this case the county which is appointed to
pay it, and does not interest the people of the
State 1t large, nor of the district through which
the road is to run. OF the private provisions
of the oct no one is presumed to know from
the mere fact of it's passage, although they may
be presumed to know of its public provisions.
As the act therefore does not of itself serve as
notice to the owner of what he is to do and
within what time, aud it provides for no other
notice, 1t does not furnish him full opportu.
nifty to have the compensation asoertained. and
as it purports to take his property without
compensation in case he does not have the
amount ascertained, I think the act invalid.
I therefore dissent from the decision.