Fay v. Macfarland ( 1908 )

Mr. Justice Van Orsuel

delivered the opinion of the Court:

At the threshold of this inquiry, we are met with reversible error. The petition of the commissioners contains the following-allegations :

“3. That your petitioners deem that the public interests re■quire the extension of the aforesaid alley in block thirty-two (32), Columbia Heights, and that it is necessary to acquire the hereinafter described land by condemnation for the purpose of said extension.

“4. That the owners of more than one half of the real estate in said block have petitioned for the extension of the aforesaid alley.”

In their motion to dismiss the proceedings, the appellants joined issue on the above allegations of the petition, as follows: “Your petitioners further allege that less than one half of the ■owners of the real estate in said block 32 have made petition to said commissioners for the opening or widening of said alley, or for the creation of a new alley from Fairmont street to connect with the same, and they deny that the public interests require such opening, widening, or straightening of the same. And your petitioners deny that said commissioners do deem that the public interests so require.” The court committed •error in overruling the motion, without taking evidence on the issues joined.

On hearing, the commissioners offered no evidence in support of the above allegations of the petition. On this point, the ■record discloses that “no evidence was introduced by the petitioners of the mode or manner in which they deemed the public interests required the extension of said alley, nor any record •of any proceeding by them showing any action by the petitioners on the subject, other than the filing of the petition herein; and no original or copy of any petition by the owners of more than •one half of the real estate in said block for the extension of ■said alley was produced or offered in evidence.” This defect in the proceedings was called specially to the attention of the •court by appellants in the objections filed before the decree of ■confirmation was entered.

These were, issues of fact that demanded affirmative proof in order to give the court jurisdiction to proceed with the condemnation. In the absence of any denial or objection, it is doubtful if the court, except upon a specific admission of the truth of the facts alleged by appellants, would have been justitled in entering a final order of confirmation, without proof-of the jurisdictional facts alleged in the petition. The declaration that the commissioners deemed it to the public interests that the alley in question should be opened, when denied or put in issue, must be supported by proof of official action to that effect. The mere signing of the petition does not purport .such united consideration and conference together upon the subject as is necessary to authorize an official declaration that the public interests demand the taking of private property for public use. Statutes like the present, authorizing the taking •of private property for public use, are to be strictly construed. The commissioners are creatures of statute. They possess no implied powers. Their authority to act must be gathered from the express terms of the law granting it. Hence, in any attempt to act under a statute granting authority, they must comply literally with its requirements. Neither has the court any implied jurisdiction in the premises. Every requirement of a statute conferring jurisdiction upon the court to entertain a proceeding, providing a legal method of taking private property, must be complied with to the letter. It must clearly appear, either by express admission of the parties, or by competent evidence, that all the jurisdictional requirements are present, before the court cam lawfully proceed.

As to the second declaration of the petition, that more than •one half of the property owners of the square through which it was proposed to extend the alley had signed a petition requesting such extension, it is clear that this allegation could be based only upon the actual possession of such petition by the commissioners. When the truth of the allegation of the •existence of such a document was challenged by proper objection "to the authority of the court to proceed under the statute, the •court could not, in the absence of proof other than the allegation in the petition, assume that such an instrument had actually "been filed by the property owners affected by these proceedings.

For the errors thus committed, the judgment will be reversed, with costs as to these appellants, and it is so ordered.

Reversed.