State v. Officer , 4 Or. 180 ( 1871 )

By the Court,

Bonham, J.:

The question to be determined in this case is, whether the record of the County Court above referred to shows the necessary jurisdictional facts to entitle it to be read in evidence for the purpose for which it was introduced, to wit: to show that the road charged to have been obstructed was a legally established public highway.

Section 8 of Chapter 50,- Miscellaneous Laws, reads:

“When any petition shall be presented fon the action of the County Court for laying out, alteration or vacation of any county road it shall be accompanied by satisfactory proof that notice .has been given by advertisement, posted at the place of holding County Court, and also in three public places in the vicinity of said road or proposed road, thirty days previous.to the presentation of said petition to the County Court, notifying all persons concerned that application will be made,” etc.

In determining the question whether the record of the County Court referred to shows upon its face such a want of jurisdiction as to subject it to be thus collaterally attacked, it would be proper to consider the character of such Court as recognized and classified by the Constitution and laws of this State. While our Constitution on this subject is not as clear and definite as might be desired, yet, in construing its whole language in reference to the same together, we think that the County Court is regarded by that instrument as practically and essentially a Court of special and limited jurisdiction. It is true that § 1 of Art. YII classifies the County Courts with Courts of general jurisdiction; to be defined and limited, however, by law, in accordance with this Constitution. But by reference to §§12 and 13 of the article of the Constitution referred to, it will be observed that in providing specially for the organization and jurisdiction of County Courts, they are practically treated as Courts of special and limited jurisdiction. At all events, it has already been judicially determined by this Court, in several cases, that County Courts are to be regarded as Courts of special and limited jurisdiction. (Thompson v. Multnomah County, 2 Oregon, 37; Johns v. Marion County, ante, p. 46.)

In the former case the Court says: “It is admitted that the County Court or Board of County Commissioners, so far as it exercises judicial power, is a Court of special and limited jurisdiction.” And further: “Before the Court could take a step, or acquire any authority, two things must plainly have been done: First. A petition of twelve householders. Second. Notice as provided above. "Without these facts the Court was no more than a stranger to every person or interest involved in the proceeding; and until the jurisdiction was acquired no intendment of regularity or power operates in its favor. It nowhere appears in the record, by way of allegation or recital, that any such notice was given, either at the court-house door or in the vicinity of the road. The omission was fatal to the proceedings of the Board of County Commissioners, as clearly showing that no jurisdiction was at any time gained over the subject-matter to be adjudicated upon.”

In the case of Hahn v. Kelly (34 Cal. 409), which is a leading case, and one evincing great ability and research, in reviewing the question of the jurisdiction of Courts gener ally, the Court says: “The presumptions of law are in favor of the jurisdiction and of the regularity of the proceedings of Superior Courts, or Courts of general jurisdiction, «-*■*'* but that they are not in favor of the jurisdiction and regularity of the proceedings of inferior Courts, or Courts of limited jurisdiction; and parties who claim any right or benefit under their judgments must show their jurisdiction affirmatively.”

The record in the case of Thompson v. Multnomah County differs from that in the case under consideration in this respect only: In the former it appears that no reference was made whatever to the proof of the posting of notices, while in the latter the language of the record is, “ Proof of posting notices having been made to the satisfaction of the Court,” etc. Does this language disclose the necessary jurisdictional facts to warrant the Court in proceeding, is the question. The County Court in its proceedings by the location of public highways to condemn the lands of private persons to public use, is only required to cause constructive notice to be given by the petitioners of their application for that purpose. This notice is to be given by posting the same at the time, at the places, and in the manner prescribed by law; and the language of' the record should show affirmatively that this law had been strictly complied with.

We do not think that it is sufficient to say that the proof of the posting of notices was made to the satisfaction of the Court. That proof which might satisfy the Court might not satisfy the law. That proof which might satisfy the Court might not justly and lawfully satisfy the persons whose private property is sought to be condemned to public use. If it is sufficient to say that the Court is satisfied with the proof of the posting of notices, without any showing as to the time, place or manner of posting, then the only question upon this subject would .be one in the discretion of the Court, which, when once exercised, would be a finality, however erroneous the judgment of the Court might have been.

We do not think that the record of the County Court in this case was sufficient to show that it had acquired jurisdiction of the persons of those affected by its proceedings.

The judgment of the Court below is reversed.