Atlantic Refining Co. v. Director of Public Works, No. 10596

• Court: United States State Supreme Court of Rhode Island
• Writing for the Court: JOSLIN; PAOLINO; PER CURIAM; PAOLINO
• Citation: 200 A.2d 580,98 R.I. 167
• Decision Date: 14 May 1964
• Docket Number: No. 10596
• Parties: The ATLANTIC REFINING COMPANY v. DIRECTOR OF PUBLIC WORKS for the State of Rhode Island. Ex.

Page 580

200 A.2d 580 98 R.I. 167 The ATLANTIC REFINING COMPANY
v.
DIRECTOR OF PUBLIC WORKS for the State of Rhode Island. Ex. No. 10596. Supreme Court of Rhode Island. May 14, 1964.
Reargument Denied May 25, 1964.

[98 R.I. 174] Letts & Quinn, Andrew P. Quinn, Daniel J. Murray, Jerome B. Spunt, Providence, for petitioner.

Page 581

J. Joseph Nugent, Atty. Gen., Arthur N. Votolato, Jr., Chief Counsel, for the State.

[98 R.I. 168] JOSLIN, Justice.

This is a petition filed in the superior court pursuant to G.L.1956, § 37-6-18, for an assessment of damages for the taking by the respondent of the petitioner's property for the public use. On the petitioner's motion and without objection by the respondent the case was assigned [98 R.I. 169] for trial to the miscellaneous calendar on which jury-trial-waived cases are heard. Before the trial date was reached, however, that assignment was vacated by a justice of the superior court on the ground that § 37-6-18 gave petitioner 'one remedy and one remedy only, that being assessment of damages by a jury.' The case is here on the petitioner's exception to that ruling. In this court the respondent's motion to dismiss the bill of exceptions because it was premature was denied without prejudice to his right to a later determination thereof. At the outset, therefore, we consider the question of prematurity.

The respondent relying on the rule laid down in Troy v. Providence Journal Co., 43 R.I. 22, 109 A. 705, and affirmed in DePrete v. Farm Bureau Mut. Auto. Ins. Co., 83 R.I. 10, 111 A.2d 837, contends that the ruling excepted to should not be reviewed by us until the case has been finally determined on the merits. While it is the general rule, as respondent argues, that ordinarily a bill of exceptions will not lie to a decision which will not in due time by operation of law lead to a final judgment in the case, it is equally well settled that the rule is otherwise when public policy warrants and in order to avoid the possibility of undue hardship or injurious consequences. Ewing v. Tax Assessors, 90 R.I. 86, 155 A.2d 61; Montaquila v. Montaquila, 85 R.I. 447, 133 A.2d 719; McAuslan v. McAuslan, 34 R.I. 462, 83 A. 837.

In our opinion this is a case that calls for application of the modification rather than the rule. Both parties agree that as a result of the state's large-scale highway program numerous petitions for assessments of damages under the statute in issue have been and will in the future be filed in the superior court. There is a diversity of opinion among the justices of that court, however, as to whether or not a jury trial is required in those suits. Whether judge or jury shall determine the justness of compensation for the taking of private property is, of course, a question of paramount public importance and its resolution should not depend on [98 R.I. 170] the happenstance of whether the trial justice deciding that question holds that a jury trial is an essential part of the statutory procedure or adheres to the opposite view. That there be a prompt resolution to this divergence of opinion makes appropriate a departure from the rule in Troy and for that reason we reaffirm our denial of respondent's motion to dismiss the bill of exceptions on the ground of prematurity.

On the merits, we construe chap. 6 of title 37. In several instances it speaks in terms of jury trials, but it is § 37-6-18 which is crucial. It provides in pertinent part that 'Any owner * * * who cannot agree with the acquiring authority upon the price to be paid for his estate * * * may * * * apply by petition to the superior court * * * praying for an assessment of damages by a jury.' The language is clear, but what is unclear is whether the provision as to an assessment of damages by a jury is mandatory or directory.

There is no rule of universal application which provides an answer. Resort instead in instances of this...