Pursuant to Article 2, Chapter 26, of the General Statutes of Kansas, a City filed an action to condemn part of appellant's land for public use. Acting under 26-202, commissioners appointed to determine compensation gave no notice of a hearing except by publication in the official city newspaper, though appellant was a resident of Kansas and his name was known to the city and was on the official records. Alleging that he had no actual knowledge of the proceedings until after damages had been fixed and the time for appeal had passed, appellant sued in equity for an injunction against trespass and for other relief. Held: Since there was no reason in this case why direct notice could not be given, newspaper publication alone did not measure 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. Pp. 112-117.
Herbert Monte Levy argued the cause for appellant. With him on the brief was A. Lewis Oswald.
Fred C. Littooy argued the cause and filed a brief for appellees.
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 [352 U.S. 112, 113] 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 [352 U.S. 112, 114] 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 [352 U.S. 112, 115] 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 [352 U.S. 112, 116] 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 [352 U.S. 112, 117]
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 right 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.
[ Footnote 2 ] Section 26-202 read in part as follows:
[ Footnote 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, [352 U.S. 112, 115] 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.
[ Footnote 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.
[ Footnote 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 [352 U.S. 112, 117] 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."
MR. JUSTICE FRANKFURTER, dissenting.
Appellant contends that the provision of Kan. Gen. Stat., 1949, 26-202, allowing notice of the hearing on compensation to be given by one publication in the official city newspaper of itself violates the provision of the [352 U.S. 112, 118] Fourteenth Amendment that no State shall "deprive any person of life, liberty, or property, without due process of law. . . ." 1 The first issue that faces us, however, is to decide from the pleadings exactly what it is that we must decide in this case.
Once appellant discovered that his land had been condemned and that the time for appeal from the award of the commissioners had passed, various possible courses of action, followed separately or in combination and each raising different issues, were open to him. If he considered the award fair but still desired to keep his land, he could have contended that unconstitutionality of the notice for the hearing on compensation invalidated the taking. If he considered the award unfair, he could have [352 U.S. 112, 119] alleged in an appropriate action the unconstitutionality of the notice of the compensation hearing and the inadequacy of the compensation and sought to obtain fair compensation, see Ward v. Love County, 253 U.S. 17 , or to restrain entry onto his land until he received a hearing under Kan. Gen. Stat., 1949, 26-202, or, making a further allegation of the invalidity of the taking, to obtain a permanent injunction. At this stage, it is not relevant for me to imply any opinion on the merits of any of these possible courses of action.
On a fair reading of the complaint, appellant chose to pursue only the first course. The theory of his action, an attempt to restrain the city from trespassing on his land, is that he still has the right to possession. His petition for injunction based this right to possession solely on the allegation that the statutory notice was insufficient. Nowhere in his petition for an injunction does appellant make any factual allegation that the money deposited by the commissioners did not represent the fair value of his land and therefore left him out of pocket. Nowhere did he indicate that he wanted an injunction only until he received a hearing. The whole theory of his petition is that the property that was being taken without due process of law was his land, not its money value. 2
In a memorandum filed after oral argument in this Court, appellant contends that the allegation of "irreparable damage" is a sufficient allegation of monetary loss. He states: "Of course, there could be no irreparable damage - indeed there could be no damage at all - unless the amount of the award was less than the actual value of the property. Had this been an action for damages, then an allegation of the differences in value would logically [352 U.S. 112, 120] have been found in the petition. But it was an injunction proceeding."
But an allegation of "irreparable damage" is merely a legal conclusion, flowing from, and justified by, the necessary allegation of facts warranting injunctive relief. The usual factual assertion underlying such an allegation in a suit to restrain trespass is that the threatened continuous nature of the entry represents the "irreparable damage." Indeed, in his petition for injunction, appellant made the usual factual assertion, immediately preceding the prayer for relief:
If the Kansas Supreme Court had construed the pleading of "irreparable damage" as implying a factual assertion that the award was less than the fair value of the land, I would accept that construction. See Saltonstall v. Saltonstall, 276 U.S. 260, 267 -268. But the Kansas Supreme Court did not construe the pleadings at all. It decided the case by upholding the constitutionality of the statute. Kansas has a right to make such an abstract determination for itself. This Court, however, can decide only "Cases" or "Controversies." U.S. Const., Art. III, 2. It has no constitutional power to render advisory opinions. To assume that the Kansas courts construed these pleadings sub silentio as alleging monetary loss is to excogitate. A much more probable inference [352 U.S. 112, 121] is that since the issue so controlling for this Court's jurisdiction was not raised in the pleadings, the Kansas court did not concern itself with it. In any event, lacking an explicit construction of the pleadings by the Kansas courts, we must construe the pleadings ourselves to decide what constitutional questions are here raised on the record as it comes to us. See Doremus v. Board of Education, 342 U.S. 429, 432 .
In my view, the only constitutional question raised by appellant is whether failure to give adequate notice of the hearing on compensation of itself invalidates the taking of his land, apart from any claim of loss. We have held many times that the State's interest in the expeditious handling of condemnation proceedings justifies the taking of land prior to payment, without violating the Due Process Clause, so long as adequate provision for payment of compensation is made. See, e. g., Bragg v. Weaver, 251 U.S. 57, 62 . Appellant must be able to show that the provisions for payment, as they operated in his case, were inadequate before he can attack the Kansas statutory scheme for compensation in condemnation cases. See Ashwander v. T. V. A., 297 U.S. 288, 347 and cases cited n. 6 (Brandeis, J., concurring); cf. Smith v. Indiana, 191 U.S. 138, 148 -149. Since on the record before us the compensation was not alleged to be inadequate, the taking was valid and the judgment of the Kansas Supreme Court should be affirmed. At the very least, the case should be returned to the Kansas court so that we may have the benefit of its construction of the pleadings. See Honeyman v. Hanan, 300 U.S. 14 .
But the Court, without explicitly construing the pleadings, passes upon the constitutionality of Kan. Gen. Stat., 1949, 26-202. Without intimating any opinion whether in the circumstances of this case appellant was denied the due process required in determining fair compensation for property taken under the power of [352 U.S. 112, 122] eminent domain, I feel constrained to point out that the Court's decision does not hold the taking itself invalid and therefore does not require the Kansas court to grant an injunction so long as appellant's rights are protected.
[For dissenting opinion of MR. JUSTICE BURTON, see post, p. 126.]
[ Footnote 1 ] The important statutory provisions of the Kansas condemnation procedure are set forth in the opinion of the Court, except for the provision in Kan. Gen. Stat., 1949, 26-204, that title to lands condemned for parkways or boulevards vests in the city immediately on publication of the resolution of condemnation and that the city's right to possession of condemned land vests when the report of the commissioners is filed in the office of the register of deeds. Kan. Gen. Stat., 1949, 26-204, is as follows:
[ Footnote 2 ] The complaint in its entirety is set forth in an Appendix at the end of this opinion, post, p. 122.
MR. JUSTICE BURTON, dissenting.
If the issue in this case is the constitutionality of the statutory provision made for taking the property, its constitutionality seems clear. If, as I assume to be the case, the issue is the constitutional sufficiency of the statutory ten-day notice by publication of the hearing to assess the compensation for the land taken, I consider such a provision to be within the constitutional discretion of the lawmaking body of the State.
In weighing the "due process" of condemnation procedure some reasonable balance must be struck between the needs of the public to acquire the property, and the opportunity for a hearing as to the compensation to be paid for the property. Just compensation is constitutionally necessary, but the length and kind of notice of the proceeding to determine such compensation is largely a matter of legislative discretion. The minimum notice required by this statute may seem to some to be inadequate or undesirably short, but it was satisfactory to the lawmakers of Kansas. It also has been upheld by the Supreme Court of Kansas and the United States Court of Appeals for the Tenth Circuit. To proscribe it as violative of the Federal Constitution fails to allow adequate scope to local legislative discretion. Accordingly, while not passing upon the desirability of the statutory requirement [352 U.S. 112, 127] before us, I am not ready to hold that the Constitution of the United States prohibits the people of Kansas from choosing that standard. Particularly, I am not ready to throw a nationwide cloud of uncertainty upon the validity of condemnation proceedings based on compliance with similar local statutes. Since 1889, it has been settled that notice by publication in condemnation proceedings to take and to fix the value to be paid for the land of a nonresident comports with due process. Huling v. Kaw Valley R. Co., 130 U.S. 559 . See also, North Laramie Land Co. v. Hoffman, 268 U.S. 276, 283 -287; Bragg v. Weaver, 251 U.S. 57 .
I agree with the court below and with the opinion of the Court of Appeals for the Tenth Circuit rendered in the comparable case of Collins v. Wichita, 225 F.2d 132, which came to our attention at the last term of Court and in which certiorari was denied on November 7, 1955, 350 U.S. 886 . Therefore, I would affirm the judgment here. [352 U.S. 112, 128]