Eli Cupp et al. v. The Board of Commissioners of Seneca County et al.
1. A majority of the board of county commissioners is a quorum for the transaction of business, as well in proceedings under the act to provide for locating, establishing, and constructing ditches, drains and watercourses, as in other cases.
2. Personal notice to the owner of land sought to be taken for the construction of a ditch is not indispensable in order to its condemnation and appropriation under said act, the notice by publication provided for therein being for that purpose sufficient.
3. A land-owner failing to make application for compensation or damages • within the time limited by the act, will be deemed and held to have waived his right to the same, although he had no actual notice of the proceeding; and the provision in said act to that effect is not in conflict with sec. 19, art. 1 of the State constitution.
Appeal. Reserved in tbe district court of Seneca county.
This is an action to enjoin the commissioners of Seneca county from constructing a ditch, located and about to be constructed, over the lands of the plaintiffs and others. A temporary injunction was allowed by the probate judge, but upon the hearing in the common pleas the injunction was dissolved. The cause was appealed to the district court, whereby the injunction became revived, and upon motion in the district court to dissolve the injunction, the cause was reserved for decision here. The petition is taken as confessed, no answer having been interposed, and the only question is whether the petition makes a case for an injunction.
The petition shows that the proceedings for the location and establishment of the ditch were in conformity with the requirements of the statute on that subject (S. & S. 313)j except in the fact that only two of the three commissioners acted in the matter. The plaintiffs claim that less than the full board of commissioners could not act, and that therefore the proceedings were unauthorized and void. They also claim that the statute authorizing the proceedings is unconstitutional, in so far as it provides for the appropriation of land *174over which the ditch is located, without actually paying or securing a compensation to the owners of the land. They allege that no such compensation was paid or secured for their lands, so -taken for the ditch in controversy; and that, although notice of the prayer and pendency of the petition for the ditch, and of the time fixed for its hearing, etc., was published agreeably to the requirement of the statute, they had no actual notice of the same, and never in fact waived their claim for compensation, nor consented to such appropriation of their lands, or has any compensation been paid or secured to them therefor. They admit that they made no claim for compensation, or for damages, within the time limited by the statute; but insist that the provision of the statute, whereby a failure to file such claim is to be taken and held as a waiver of the claim, is unconstitutional and void.
Franh JBaher and G. E. Seney for plaintiffs:
1. Two county commissioners, when the third commissioner neither meets nor acts with them, have no power to locate and establish a ditch, and for this reason the proceedings appropriating the plaintiffs’ lands are void.
The board of county commissioners is composed of three persons. A majority of the board constitutes a quorum for the transaction of business. 1 S. & C. 243.
But the statute authorizing the county commissioners to locate and establish ditches (S. & S. 313) contains no provision constituting two commissioners a quorum, nor does it directly or indirectly, authorize two commissioners to locate and establish a ditch.
• The provision in the statute first mentioned, constituting a majority of the board a quorum for the transaction of business, does not apply to the statute authorizing the location of ditches.
The power to appropriate private property for a ditch is conferred upon the county commissioners. It is to be exercised whenever, in the opinion of the county commissioners, the public health, convenience, or welfare demands it. In exercising this power the commissioners do not act as a *175board of commissioners, nor as the county commissioners, but as the agents of the general assembly. As a board of commissioners, or as the county commissioners, they have no power to take private property from its owner without his consent.
Two county commissioners may not exercise the power of eminent domain under the special statute locating ditches, upon the ground that another and different and general statute authorizes them to transact business. The special statute governs and controls their proceedings, whether they act as the agents of the general assembly or as a board of commissioners ; and the provisions of the special statute must be followed strictly and technically. Commissioners of Hamilton County v. Mighels, 7 Ohio St. 109.
The county commissioners are three public officers. Whether these three public officers act as the agents of the general assembly, or otherwise, their power is joint and must be jointly exercised. Each one of the commissioners must join in the exercise of this power. Story on Agency, § 42; 7 Ohio St. 109; In the Matter of the Wells County Road, 7 Ohio St. 16; Young v. Buckingham, 5 Ohio, 485.
2. The proceedings of the county commissioners locating and establishing this ditch operate as, and are, an appropriation of so much of the plaintiff’s lands as are occupied by the ditch.
This court decided, in the case of Reeves v. Treasurer of Wood County, 8 Ohio St. 333, that taking land for the purpose of a ditch is a iakvng of private property within the spirit and meaning of sec. 19 of art. 1 of the constitution of this State.
If, then, these proceedings are valid, the public have acquired a permanent easement in those lands. This has been done without the consent of the plaintiffs, and without making any compensation whatever.
The question is, whether the public can appropriate these lands without compensating the plaintiffs. The right of the public to appropriate private property for its use, and the right of the owner to compensation therefor, are fixed by the section of the constitution mentioned.
*176Making compensation to the owner is a condition -imposed upon the right of appropriation. This condition is a condition precedent. The compensation must be assessed by a jury, and the amount paid to the owner, or secured by a deposit of the money for the owner, first or before the public acquires a right to the property. See Hueston v. Hamilton and Eaton Railroad Co., 4 Ohio St. 689; Kramer v. The Cleveland and Pittsburg Railroad Co., 5 Ohio St. 147
The right of the public to appropriate private property is no greater, or higher, or more to be favored, than the right of the owner to compensation; Both are fixed and established by the same instrument, and by that instrument made inseparable. As the right of appropriation cannot be exercised without making compensation, it follows that the one is a necessary and indispensable part of the other. Kent's Com. 339; 5 Ohio St. 147; Foote v. City of Cincinnati, 11 Ohio, 406; Symonds v. Same, 14 Ohio, 147; Lamb & McKee v. Lane, 4 Ohio St. 167.
The statute under which- the lands of the plaintiffs were appropriated is neither constructed nor executed upon the principle established by these authorities. It makes no provision for assessing and paying compensation to those owners who fail to file their applications on or before the day set for the hearing of the petition,.but provides that the right of such owners to compensation is waived. We insist, therefore, that this statute, in failing to provide for the assessment and payment of compensation to such owners, and in waiving their right to compensation, is unconstitutional and void.
It is not sufficient that the statute provides for assessing and paying compensation if the owner demands it. The constitution imposes no such condition.
We hold that-private property cannot be taken from its owner until compensation is made in the mode prescribed by the constitution. This rule admits of no exception whatever. The statute authorizing the appropriation must provide, not a remedy for the owner but that a jury assess his compensation, and that the sum assessed be paid, or secured by a deposit of money, first or before the property is taken. If *177the statute departs from this constitutional rule, and in providing a remedy for the owner imposes the condition that the owner must put the remedy in motion, then the statute, to be valid, must also provide that the owner have actual notice of the proceedings to appropriate his property.
Eor the reason, then, that the statute provides a remedy and requires the owner to put it in motion, without providing that he have actual notice of the proceeding to appropriate, the statute is, so far as these plaintiffs are concerned, void.
It is void, so far as these plaintiffs are concerned, for the reason that it waives their right to compensation. We concede that a party may waive either a constitutional or statutory provision made for his benefit. When private property is taken for the use of the public, the owner may waive or release his right to compensation. But this right cannot bet waived for the owner, without his knowledge or consent. If the owner l'cnows that he is required to assert his right, and falls so to do, in such case, it may be, that the statute will operate as a waiver of his right. But if the owner has no such knowledge, upon what principle can it be claimed that his right is waived ? To waive his right, the owner must do some positive act concerning that right. Ilis mere neglect to do that, which he does not know he is required to do, cannot, under any circumstances, be considered as a waiver of his right. The owner is not at fault. The fault is in the. statute.
Warren P Noble and Harrison Nolle for defendants:
A careful examination of the statutes (S. & C. 543, secs. 1, 8, 9, and S. & S. 313, secs. 1, 3) would seem to lead te these conclusions:
First. It was the intention of the legislature, in conferring upon the county commissioners the power to locate and establish ditches, that this power should be enforced by them as a hoard, when in session for such purpose, and not in their individual capacity. The law requires them to be in session as a board, either at one of the regular sessions, or at a called or special session of said commissioners.. '
*178The statute fixes a majority as a quorum, of the commis sioners for the transaction of any business required of them by law. The locating and establishment of ditches is one of the many duties required of them — required of them as a board of county commissioners. The language used by the legislature in imposing this duty upon the county commis- „ sioners is not such as to lead the court to the belief that the legislature intended that the board should be organized differently, or that a greater number should be required to constitute a quorum, while performing these duties, than is required while in the discharge of other duties required of them by law.
Second. We have no fault whatever to find with the constitutional provisions for compensation for lands appropriated or damages sustained. These are wholesome and proper provisions, and they secure well the rights of property owners against- any unjust appropriation of, or damages to, their /private property, by the public.
It was not the intention of the framers of the constitution to interfere with or in any way diminish the right of emivnent domain. This right exists in all its length and breadth ?as fully as it did before the adoption of this constitutional .provision. But the purpose and object of the constitutional /provision is to secure to the, owner of private property the ¡right to obtain compensation before he should be deprived of the use or enjoyment of his property, by having it taken from !his possession, to be appropriated to the use of the public.
Now, while it was designed to secure fully these private ¡rights, it certainly could not be fairly claimed that it was intended to require greater formality or more imposing solem:nity in the administration of the same, than is required by daw in securing and administering other well-defined private -rights of the same importance. Nor can it be fairly claimed that it was ever intended by any of these provisions to throw ¡any obstacle whatever in the way of any such improvements ¡as are clearly required by the public good.
There are no public improvements more imperatively demanded by the ¡public health, convenience, and welfare, *179throughout the north-western quarter of the State, than the establishment of these ditches, drains, and water-courses.
The public good requires the exercise of public authority in this behalf, as much as in the collection of taxes for the support of the government. And yet no one would pretend to question the right to sell a man’s lands to pay his taxes, levied for the support of the government, and that, tod, upon a notice published in a newspaper of general circulation in the county where the lands lie.
It seems as if the publication of a notice, in all such cases, was the most appropriate way of giving it; at least it would seem to be almost an imperative necessity, for the reason that it would be almost impossible to give it in any other way. It would oftentimes .be impossible to ascertain the names or find the place of residence of land-owners; more especially where the proceedings involved the necessity of notifying large numbers of them; as in a case like the present.
If the notice required by the statute was given, it is enough. Miller & Swan v. Graham & Smith, 17 Ohio St. 1.
The question as to how the owner of property shall be notified of any proceedings affecting his title or rights therein, is purely a question for the general assembly. The constitution has not undertaken to define or limit the manner or mode of giving that notice. The time, probably, never was when property might not be proceeded against, appropriated, and sold by means of published notice to the owner, under certain circumstances. The very highest title it was possible for him to have therein might be taken away from him by this kind of notice.
It has been repeatedly decided by this court, in well-considered cases, “ That in the exercise of the power of assessment, by municipal corporations, legislative discretion in apportioning the burden according to benefits is left as broad and unfettered as under the constitution of 1802.” (See cases of Hill v. Higdon, 5 Ohio St. 243; Reeves v. The Treasurer of Wood County and others, 8 Ohio St. 333.) *180This is also done in other States. (See case of The People v. The Mayor of Brooklyn, 4 Comstock, 540.)
There is nothing in any of the decisions made by this court, in any case heretofore determined, in giving construction to the constitutional provisions for compensation, and for damages, that goes to the extent claimed by the plaintiffs’ counsel; that is, “ that compensation shall first be made in money, or secured by a deposit of money” regardless of the fact, whether, the same is claimed by the owner or not. On the contrary, we find that when such provisions are made in the law as will enable the owner to claim and obtain such compensation and damage whenever he sees proper so to do, before his property if taken, it is sufficient; and the law cannot be held to be in violation of the constitution.
It is enough when the law clearly and fully provides the means whereby these private rights may be claimed and secured; and it was never intended that provisions should be made to thrust and enforce them upon parties whether claimed or not.
The plaintiffs, by their mode of argument, seem to think that the statute waives their right to compensation, and contend that for this reason the statute is unconstitutional and void. We submit that the statute does no such thing. Ie merely provides, that having been notified of the pendency of the petition, and the proceedings thereon, in the manner provided by the statute, if the party entitled thereto then fails to file his claim for compensation and damage, within the time limited by the act, in that case he himself shall be consdiered to have waived his right thereto.
Welch, J.
The first question presented is, whether a majority of the county commissioners is a quorum to act under the law in question. We have no hesitation in answering this question in the affirmative. No reason is perceived why the legislature should intend any discrimination in this respect between the powers of the commissioners to be exercised in the location and establishment of . ditches, and those to be exercised in performing various other equally important *181duties assigned to them by law. The location and establishment of roads, equally as of ditches, invoke the power of eminent domain, and it is conceded that in the former case a majority is sufficient. Nor is there anything in the language used by the legislature indicating an intention to make such discrimination. The act to establish boards of county commissioners (S. & C. 543, sec. 9) makes a “majority” of the board of county commissioners “ a quorum,” and authorizes them (sec. 1) to do and perform “ all such duties as now are, or hereafter may le, required of them.” The act in question confers the power to locate and establish ditches upon “ the county commissioners,” to be exercised “ at any regular or called session.” (S. & S. 313, sec. 1.) A quorum of the commissioners, when met and in session as such, is the board of county commissioners in law, equally as a quorum of the court or a quorum of the Senate or House of Representatives is in law the court, or the Senate, or the House of Representatives, and as such is authorized to do and perform any act. which the body might do and perform, were its members all present and participating. We see no validity in this objection to the proceedings.
The remaining question, which regards the plaintiffs’ constitutional right to compensation, and to its prepayment or security, is not so easy of solution. It is, in fact, a question of the constitutionality of the act.
The constitutional provision on the subject is as follows : “ Private property shall ever be held inviolate, but subservient to the public welfare. When taken in time of war, or other public exigency imperatively requiring its immediate seizure, or for the purpose of making or repairing roads, which shall be open to the public without charge, a compensation shall be made to the owner in money ; and in all other cases, when private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury, without deduction ior benefits to any property of the owner.” (Sec. 19, article 1.)
The statute in question authorizesthe county commissioners, *182upon petition of one or more of the land-owners praying for the establishment of a ditch, to order a survey of the route of the proposed ditch; which survey, with a plat, profile, description of land to be affected, etc., is to be reported to the auditor of the county. Upon receipt of this report, the auditor is required to make an apportionment of the costs of locating and of the labor of constructing the ditch, and give notice of said report and apportionment, the prayer and pendency of the 'petition, and the time set for its hearing, by publication for four weeks in a newspaper published or of general circulation in the county. The act then provides that all persons claiming compensation for land taken, or damages occasioned by the construction of the ditch, shall file their claims therefor with the auditor on or before the day set for hearing the petition, and makes provision for the assessment of such compensation and damages, if any are claimed, by a jury, in the probate court. It also provides that persons failing so to malee their claims withim, the time specified shall be deemed and held to have warned their right to such compensation or damages. Upon hearing of the petition the commissioners have a.discretionary power, in view of all the circumstances of the case, to grant or refuse the prayer of the petition, as may seem to them just and for the public good. The act makes no provision for the service of personal notice upon the land-owners to be affected by the construction of the ditch.
Is this act in conflict with the constitutional provision referred to? That provision guarantees to the public the right to take the land, and to the owner the right to a compensation, to be paid or secured before the land is taken. One of these rights is just as sacred as the other, and neither is more sacred than any other form of right to land, or to compensation therefor. Nothing is better established as law, than that such rights may be affected, and lost to the owner, by a proceeding in rem,, and upon merely constructive notice. The law of all such proceedings rests in the necessity of the case, and in no instance, perhaps, is that necessity more plainly apparent than in the construction of public roads, and other *183improvements of like nature. Without the aid of some such proceeding, the construction of roads and ditches would be next to impracticable. A similar proceeding is provided, and a like provision as to the waiver of claims is made, in the law for the establishment of roads. (S. & C. 1286, sec. 8.) Some such provision of law seems indispensable. The owner of land necessary to be used for a road or ditch may be absent or unknown. The title may be in dispute. The legal title may be in one, and the equitable title in another. One may have the present estate and another the reversion or remainder. The owner may make a secret conveyance, on purpose to evade the law. Without the power to proceed in some such form against the land itself, the right guaranteed to the public by this provision of the constitution, to take the land for public uses, would be of little avail. In the construction of such improvements, of any considerable length, personal notice, if at all practicable, would be attended with great inconvenience and uncertainty. It was the duty of the legislature to provide some reasonable means for .securing, both to the public and to the owner of land, these rights so guaranteed by the constitution. To require in such cases personal notice to the owners, would, in our judgment, be quite as unreasonable, as to require that owners of lands should, as was said in the case of Miller v. Graham, (17 Ohio St. 1), “ maintain some kind of an agency in the vicinity of the lands, through which they may be informed of proceedings affecting them.” They are presumed to know of the existence of this act, and therefore to have notice that their lands are liable at any time, upon four weeks’ publication of notice to that effect, to be taken for the use of a ditch, and that their non-claim will be taken and held as a waiver of all right to compensation or damages. There is no greater hardship in this implied waiver, after notification beforehand that silence will be taken for consent, than there is in the analogous cases of creditors of a bankrupt or insolvent, or of claimants upon any fund in the hands of a court for distribution, whose fail ure to present their claims is made to work a forfeiture of the same. Nor is the necessity for such implication any the *184greater in the latter cases than in the former. A principal element in the determination by the commissioners, as to the expediency of constructing a road or ditch, is the amount of its cost, and that amount should, if practicable, be ascertained before the day fixed for the determination. The whole proceeding is substantially in rem. Jurisdiction over the person of the parties is not necessary. The act in question relates to and affects only the remedy, and not the rights of the parties, and is therefore.within the general scope of legislative power. The constitutional provision referred to does not take away that power. It defines and guarantees the right of the party to his land, or to a sure and adequate compensation therefor. The remedy — the proceeding by which that right is to be affected — is still left to legislative discretion. We fail, therefore, to see wherein the act in question violates the constitution.
The injunction will be dissolved and the cause remanded for further proceedings.
Brinkeehoff, C.J., and Scott, J., concurred.
White, J., dissented as to the third proposition of the syllabus.
Dat, J., did not sit in the case.