Peterson v. Board of Supervisors , 199 Minn. 455 ( 1937 )

Jurisdiction had not been acquired as to the appellant at the time the town board met. 1 Mason Minn. St. 1927, § 2583; Thompson v. Town of Berlin, 87 Minn. 7, 91 N.W. 25. Although jurisdiction had not been acquired over appellant by service of notice, it is said that he waived such service. The statute, requiring service, is intended to be obeyed or else it would never have been enacted, and therefore it comes to the respondents as public officers, who act under it, as a command to comply with its terms. 6 Dunnell, Minn. Dig. (2 ed. Supps. 1932, 1934) § 8954, note 91; Kipp v. Dawson, 31 Minn. 373, 381,17 N.W. 961, 18 N.W. 96. Appellant's special appearance was a challenge to jurisdiction. It directed the attention of respondents to the fact that they had proceeded, and were proceeding, illegally. It was then incumbent upon them to obey the commands of the statute. Further proceedings necessarily would be illegal unless they were by the consent of the appellant clearly given.

The court below held, and this court adopts the ruling, that if appellant intended to stand on the special appearance he should not have participated in the hearing on the merits. This is equivalent to saying that if a special appearance is made and is not heeded and proceedings are then had upon the merits, that a citizen must then withdraw if he is to save his rights under the special appearance. The rule is that a party who has appeared specially and objected to the jurisdiction does not waive the objection by answering to the merits and proceeding to trial after his objection has been overruled. 1 Dunnell, Minn. Dig. (2 ed. Supp. 1932) § 482. The reason for this rule is well stated in 2 R.C.L. p. 339, § 20, as follows:

"According to the prevailing rule illegality in a proceeding by which jurisdiction over the person of the defendant is to be obtained is in no case waived by the appearance of the defendant for the purpose of calling the attention of the court to such irregularity. Nor is the objection waived when, being urged, it is overruled, and the defendant is thereby compelled to answer. He is not considered as abandoning his objection because he does not submit to further proceedings without contest. It is only where he pleads to the merits in the first instance, without insisting upon the illegality, that the objection is deemed to be waived. The reason for this view is that a defendant has a perfect right to remain out of court until regularly and legally brought in. Then if an attempt is made to bring him in irregularly, he has a perfect right to object, on the ground of irregularity, in proper time and manner. To force him to waive it, by saying that if he does not do so he can make no defense on the merits, is a palpable denial of a legal right. He must then determine whether he will risk his whole case on the question of insufficiency of the writ or return, as the case may be, however full and complete he might be able to make his defense on the merits, or waive the defect and submit himself to a jurisdiction not lawfully obtained. This he would be forced to do in order to prevent being forever deprived of his defense in case his objection to the writ or return should prove to be not tenable."

The effect of the majority opinion is that the rules of procedure applicable to cases in court do not apply to road proceedings. The authorities are to the contrary. 1 Elliott, Roads Streets (4 ed.) § 361, note 62. It is true that a town board does not proceed in the same manner as a court, but when its jurisdiction is challenged it is required to answer that challenge in the same manner required of a court. In this case the finding of the court below, which is approved by this court, is that appellant did make a special appearance. As to that there is no dispute. The court omitted to find that the appellant thereafter participated in the proceedings upon his own motion. The evidence is not in dispute that, after the special appearance had been entered and the objections to the jurisdiction had been made, the appellant and his attorney were about to withdraw from the meeting. Thereupon the chairman of the town board asked the appellant's attorney: "Well, have you any further objections?" Then the appellant's attorney went across the street to his automobile and got the map and presented it to the town board, with the explanations referred to. By proceeding with the meeting, and through its chairman asking appellant if he had any further objections, the respondent did not acquire jurisdiction over the appellant, nor did it thereby nullify his special appearance. In Finsilver, Still Moss, Inc. v. Goldberg, Maas Co. Inc. 253 N.Y. 382,171 N.E. 579, 582, 69 A.L.R. 809, an objection was made to the jurisdiction of a board of arbitrators to proceed with a hearing, but the board proceeded with the hearing and the appellant participated therein. In holding that the participation in the proceeding after the special appearance did not amount to a waiver of jurisdiction, Cardozo, C.J., speaking for the court, said [253 N.Y. 391]:

"We assume that circumstances may exist in which a party to an arbitration, joining in its proceedings without protest or disclaimer, may be found to have joined by implication in the appointment of the arbitrators, and to have confirmed their jurisdiction, if otherwise defective. The limits of this implication and its effect may be postponed for definition until the event creates the need. On the other hand, the rule is well established and of general validity that where there is seasonable protest or disclaimer in response to a claim of jurisdiction, the protest or disclaimer is not nullified by proceeding thereafter to a hearing on the merits." Citing Harkness v. Hyde, 98 U.S. 476, 479, 25 L. ed. 237, 238; Southern P. Co. v. Denton, 146 U.S. 202, 209, 13 S. Ct. 44,36 L. ed. 942, 945; Hassler, Inc. v. Shaw, 271 U.S. 195,46 S. Ct. 479, 70 L. ed. 900; Jones v. Jones, 108 N.Y. 415, 425,15 N.E. 707, 2 A.S.R. 447.

It seems that that rule should apply to the case at bar. In May v. Grawert, 86 Minn. 210, 213, 90 N.W. 383, 384, this rule was applied and the court quoted from § 677, p. 631, of Elliott, Appellate Procedure:

" 'Having done all in his power at the proper time, to present his objection, subsequently contesting the case is in no just sense a waiver. A party cannot be held to relinquish a right which he asserts as the law requires, nor is he bound to constantly repeat his objections. It would be unjust to hold that he must surrender his right, * * * or yield a right he has done his best to preserve and assert.' The authorities on this are abundant, and need not be further cited."

The cases cited in the majority opinion sustain the views here stated. It seems that McCauley v. Town of McCauleyville,111 Minn. 423, 127 N.W. 190, 20 Ann. Cas. 828, is squarely in point and that the court has not successfully distinguished this case in the majority opinion. It is stated that that case is not in point "for there the owner did not appear, she merely filed her protest against the laying of the road, on the ground that the board was without jurisdiction." The opinion shows that she did more than that. After stating that she filed a written protest, it is said [111 Minn. 424]: "The protest also stated that the road was neither necessary nor of public utility sufficient to warrant the expense attending its establishment." This followed the objections to the jurisdiction. It is precisely the situation which we have in the case at bar. In Board of Co. Commrs. of Stearns County v. Smith, 25 Minn. 131, the court held that an objection to the jurisdiction was well taken in an answer in which the objection to the jurisdiction was set forth with a statement: "If such objection to the jurisdiction be overruled," that the defendant answered upon the merits, setting forth an answer in that respect. The court held that the answer was interposed only upon condition that the objection to the jurisdiction was overruled. So it was in the McCauley case, and so were the objections on the merits in the instant case.

It seems to me that this matter has an importance that transcends the parties concerned and the case at bar. A citizen should be protected in his rights. Officials should be compelled to obey the mandates of the law. True, if a citizen waives provisions intended for his protection, jurisdiction is conferred. But the court should not tempt officials to override and nullify the objections of the citizen by ignoring them and thus denying citizens the protection of the law and conferring upon themselves, by their own illegal conduct, a jurisdiction which they do not have. If it can be done in the instant case it can be done in all cases. It seems that there is even greater reason to throw protection of jurisdictional prerequisites around the citizen in proceedings before boards and administrative tribunals than there is in the courts of law. In the latter, a complete record of the proceedings is had, and the citizen ordinarily appears represented by an attorney, whereas he often appears without an attorney before other tribunals. I am satisfied that the proceedings before the town board were illegal and that the order below is erroneous and should be reversed.