Walker v. City of Hutchinson

Opinion of the Court by

Mr. Justice Black,

announced by Mr. Justice Douglas.

The appellant Lee Walker owned certain land in the City of Hutchinson, Kansas. In 1954 the City filed an action in the District Court of Reno County, Kansas, to condemn part of his property in order to open, widen, and extend one of the City’s streets. The proceeding was instituted under the authority of Article 2, Chapter 26 of the General Statutes of Kansas, 1949. Pursuant to § 26-201 of that statute ¹ the court appointed three commissioners to determine compensation for the property taken and for any other damage suffered. These commissioners were required by § 26-202 to give landowners at least ten days’ notice of the time and place of their proceedings. Such notice could be given either “in writing ... or by one publication in the official city paper . ...” ² The appellant here was not given notice in writing but publication was made in the official city paper of Hutchinson. The commissioners fixed his damages at $725, and pursuant to statute, this amount was deposited with the city treasurer for the benefit of appellant. Section 26-205 authorized an appeal from the award of the commissioners if taken within 30 days after the filing of their report. Appellant took no appeal within the prescribed period. Some time later, however, he brought the present equitable action in the Kansas District Court. His petition alleged that he had never been notified of the condemnation proceedings and knew nothing about them until after the time for appeal had passed. He charged that the newspaper publication authorized by the statute was not sufficient notice to satisfy the Fourteenth Amendment’s due process requirements. He asked the court to enjoin the City of Hutchinson and its agents from entering or trespassing on the property “and for such other and further relief as to this Court seem[s] just and equitable.” ³ After a hearing, the Kansas trial court denied relief, holding that the newspaper publication provided for by § 26-202 was sufficient notice of the Commissioners' proceedings to meet the requirements of the Due Process Clause. Agreeing with the trial court, the State Supreme Court affirmed. 178 Kan. 263, 284 P. 2d 1073. The case is properly here on appeal under 28 U. S. C. § 1257 (2). The only question we find it necessary to decide is whether, under circumstances of this kind, newspaper publication alone measures up to the quality of notice the Due Process Clause of the Fourteenth Amendment requires as a prerequisite to proceedings to fix compensation in condemnation cases.

It cannot be disputed that due process requires that an owner whose property is taken for public use must be given a hearing in determining just compensation. The right to a hearing is meaningless without notice. In Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, we gave thorough consideration to the problem of adequate notice under the Due Process Clause. That case establishes the rule that, if feasible, notice must be reasonably calculated to inform parties of proceedings which may directly and adversely affect their legally protected interests.⁴ We there called attention to the impossibility of setting up a rigid formula as to the kind of notice that must be given; notice required will vary with circumstances and conditions. We recognized that in some cases it might not be reasonably possible to give personal notice, for example where people are missing or unknown.

Measured by the principles stated in the Mullane case, we think that the notice by publication here falls short of the requirements of due process. It is common knowledge that mere newspaper publication rarely informs a landowner of proceedings against his property. In Mullane we pointed out many of the infirmities of such notice and emphasized the advantage of some kind of personal notice to interested parties. In the present case there seem to be no compelling or even persuasive reasons why such direct notice cannot be given. Appellant’s name was known to the city and was on the official records. Even a letter would have apprised him that his property was about to be taken and that he must appear if he wanted to be heard as to its value.⁵

Nothing in our prior decisions requires a holding that newspaper publication under the circumstances here provides adequate notice of a hearing to determine compensation. The State relies primarily on Huling v. Kaw Valley Railway & Improvement Co., 130 U. S. 559. We think that reliance is misplaced. Decided in 1889, that case upheld notice by publication in a condemnation proceeding on the ground that the landowner was a nonresident. Since appellant in this case is a resident of Kansas, we are not called upon to consider the extent to which Mullane may have undermined the reasoning of the Huling decision.⁶

There is nothing peculiar about litigation between the Government and its citizens that should deprive those citizens of a right to be heard. Nor is there any reason to suspect that it will interfere with the orderly condemnation of property to preserve effectively the citizen’s rights to a hearing in connection with just compensation. In too many instances notice by publication is no notice at all. It may leave government authorities free to fix one-sidedly the amount that must be paid owners for their property taken for public use.

For the foregoing reasons the judgment of the Supreme Court of Kansas is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Brennan took no part in the consideration or decision of this case.

1 Section 26-201 reads in part as follows:

“Private property jor city purposes; survey; ordinance fixing benefit district; application to district court; commissioners. Whenever it shall be deemed necessary by any governing body of any city to appropriate private property for the opening, widening, or extending any street or alley, . . . the governing body shall cause a survey and description of the land or easement so required to be made by some competent engineer and file with the city clerk. And thereupon the governing body shall make an order setting forth such condemnation and for what purpose the same is to be used. . . . The governing body, as soon as practicable after making the order declaring the appropriation of such land necessary . . . shall present a written application to the judge of the district court of the county in which said land is situated describing the land sought to be taken and setting forth the land necessary for the use of the city and . . . praying for the appointment of three commissioners to make an appraisement and assessment of the damages therefor.”

2 Section 26-202 read in part as follows:

“Notice to property owners or lienholders of record; appraisement and assessment of damages; reports. The commissioners appointed by the judge of the district court shall give any owner and any lien-holder of record of the property sought to be taken at least ten days’ notice in writing of the time and place when and where the damage will be assessed, or by one publication in the official city paper, and at the time fixed by such notice shall, upon actual view, appraise the value of the lands taken and assess the other damages done to the owners of such property, respectively, by such appropriations. For the payment of such value and damages the commissioners shall assess against the city the amount of the benefit to the public generally and the remainder of such damages against the property within the benefit district which shall in the opinion of the appraisers be especially benefited by the proposed improvement. The said commissioners may adjourn as often and for such length of time as may be deemed convenient, and may, during any adjournment, perfect or correct all errors or omissions in the giving of notice by serving new notices or making new publication, citing corporations or individual property owners who have not been notified or to whom defective notice or insufficient notice has been given, and notice of any adjourned meeting shall be as effective as notice of the first meeting of the commissioners. . .

3 Although the relief prayed for was an injunction against the taking, the Supreme Court of Kansas evidently construed the pleadings as adequately raising the question whether notice was sufficient to assure the constitutionality of the compensation procedure; in its opinion it passed only on § 26-202, dealing with the latter problem. Since Kansas requires a showing of actual damage for standing to maintain an equity suit, McKeever v. Buker, 80 Kan. 201, 101 P. 991, and since the Kansas court took the complaint as alleging damage as a result of the compensation rather than the taking procedure, the pleading was evidently treated by the state court as alleging monetary damage resulting from the lack of notice in connection with compensation. We accept this construction of the complaint by the Kansas court as sufficient allegation of damage. See Bragg v. Weaver, 251 U. S. 57, where the adequacy of notice of compensation proceedings was passed on by this Court in an injunction suit like this one.

4 We applied the same rule in Covey v. Town of Somers, 351 U. S. 141; see also City of New York v. New York, N. H. & H. R. Co., 344 U. S. 293.

5 Section 26-202 was amended in 1955, after this Court’s decision in Mullane, to require that the city must give notice to property owners by mailing a copy of the newspaper notice to their last known residence, unless such residence could not be located by diligent inquiry. Kan. Gen. Stat., 1949 (Supp. 1955), §26.202.

6 The State also relies on North Laramie Land Co. v. Hoffman, 268 U. S. 276, and Bragg v. Weaver, 251 U. S. 57. But the holdings in those cases do not conflict with our holding here. The North Laramie case upheld c. 73, § 2, of the 1913 Laws of Wyoming, which provided for notice by publication in a newspaper and required that a copy of the newspaper must be sent to the landowner by registered mail. This Court’s opinion stated at p. 282 that: “The Supreme Court of Wyoming held that the procedure followed complied with the statutory requirements. By that determination we are bound.” In Bragg v. Weaver, supra, at pp. 61-62, this Court stated that the controlling Virginia statute provided that a landowner must be notified “in writing and shall have thirty days after such notice within which to appeal. ... It is apparent therefore that special care is taken to afford him ample opportunity to appeal and thereby to obtain a full hearing in the circuit court.”