Board of Com'rs of Hamilton County v. Blue Ribbon Ice Cream & Milk Corp.

• Decision Date: 12 December 1952
• Docket Number: 28968,28967,Nos. 28971,s. 28971
• Parties: BOARD OF COM'RS OF HAMILTON COUNTY v. BLUE RIBBON ICE CREAM & MILK CORP., Inc. BOARD OF COM'RS OF HAMILTON COUNTY v. GOODWIN et al. BOARD OF COM'RS OF HAMILTON COUNTY v. FOLAND et al.
• Court: Indiana Supreme Court

Page 88

109 N.E.2d 88

231 Ind. 436

BOARD OF COM'RS OF HAMILTON COUNTY v. BLUE RIBBON ICE CREAM & MILK CORP., Inc.

BOARD OF COM'RS OF HAMILTON COUNTY v. GOODWIN et al.

BOARD OF COM'RS OF HAMILTON COUNTY v. FOLAND et al.

Nos. 28971, 28967, 28968.

Supreme Court of Indiana.

Dec. 12, 1952.

Campbell, Campbell & Malan, Noblesville, for appellant.

Christian, Waltz & Klotz, Noblesville, for appellees Goodwin and others.

Garrison & Castor, Noblesville, for appellee Blue Ribbon Ice Cream & Milk Corp.

DRAPER, Judge.

The appellant in Number 28971 instituted this action against the appellee to condemn and appropriate certain rights in the land of the appellee for the purpose of widening and improving an existing public highway. The proceeding was initiated pursuant to the provisions of Ch. 48 of the Acts of 1905, and acts amendatory thereof and supplemental thereto, being Burns' Stat. § 3-1701 et seq.

Objections filed by appellee were overruled, and appraisers were thereupon appointed who in due course made their report and award of damages. The appellant filed exceptions to said report and prayed that the amount of damages due to defendants on account of said condemnation be fixed and determined by a jury as in ordinary civil proceedings. The appellee also filed exceptions to the report of the appraisers.

Thereafter, and on June 3, 1952, the appellant paid court costs and deposited with the Clerk of the Hamilton Circuit Court the full amount of the award, to--wit, $20,000.

On July 14, 1952, the appellee dismissed its exceptions to the report of the appraisers and filed its petition for an order directing the Clerk to pay over to it said sum of $20,000. On July 25, 1952, the petition of the appellee was sustained and the Clerk was authorized to pay the money to the appellee.

We are asked to decide whether the court erred in ordering the Clerk to pay the money to the appellee. Since the question is one of importance which should be answered, we pass procedural questions raised by the appellee, and proceed to the merits.

It is inaccurate to say, as it has sometimes been said in Indiana, that the exercise of the right of eminent domain is 'prescribed by the Constitution and regulated by statute.' The power is inherent in, and essential to, the existence of all government even in its most promitive forms. It does not depend for its existence upon a specific grant in the Constitution. It is a power which exists without constitutional recognition, a power which is limited, but not conferred, by constitutional provisions. 18 Am.Jur., Eminent Domain, §§ 2 and 7.

The right to authorize the exercise of the power is nevertheless legislative, and private property can be taken for public use only pursuant to and in accordance with legislative authority. Thomas v. Lauer, 1949, 227 Ind. 432, 86 N.E.2d 71; State v. Pollitt, 1942, 220 Ind. 593, 45 N.E.2d 480; 18 Am.Jur., Eminent Domain, § 9; Annotation 22 L.R.A.,N.S., 12. 'The time, manner, and occasion of the exercise of the power of eminent domain are wholly in the control and discretion of the legislatures of the several states of the Union, except as it is restrained by the constitutions of such states.' Consumers' Gas Trust Company v. Harless, 1892, 131 Ind. 446, 451, 29 N.E. 1062, 1064, 15 L.R.A. 505. (Emphasis supplied.)

The pertinent provision of the Constitution of Indiana is in § 21 of Art. 1, reading:

'* * * No man's property shall be taken by law, without just compensation; nor, except in case of the State, without such compensation first assessed and tendered.'

This constitutional provision does not forbid legislation permitting the state to take private property without first tendering compensation. But the provision is not self-executing. Under it, the state could take property whether or not compensation was first assessed and tendered if the legislature saw fit to so provide, but no such legislation has been enacted. Thomas v. Lauer, supra; State v. Pollitt, supra.

The only method of procedure for condemning land that has been provided by our legislature, and which was invoked in this case, is exclusive, and available equally and alike to all bodies having the right to exercise the power of eminent domain. Any such body seeking to exercise the right, even though it be the state itself by one of its authorized agencies, of which the appellant is one, is bound by the provisions of the statute. Accordingly, such state agency, like any other body having the power of eminent domain, must tender payment before taking possession of the condemned property. State v. Pollitt, supra; Thomas v. Lauer, supra.

In this case the appellant filed written exceptions to the assessment of the damages, and prayed that the amount thereof be fixed and determined by a jury as in ordinary civil actions. It thereafter paid the amount of the award to the clerk of the court. While said payment was voluntary in the sense that it could have proceeded with the litigation without making such payment, it was nevertheless required to make the payment if possession...