Byrd v. Board of Sup'rs of Jackson County
Decision Date | 15 November 1937 |
Docket Number | 32842 |
Citation | 176 So. 910,176 So. 386,179 Miss. 880 |
Parties | BYRD et al. v. BOARD OF SUP'RS OF JACKSON COUNTY |
Court | Mississippi Supreme Court |
(Division B.)
1 HIGHWAYS.
In proceeding for closing road where question whether road was private rather than public road was not raised or passed upon by county board of supervisors or circuit court issue could not be considered in Supreme Court (Code 1930, section 214; Const. 1890, section 170).
2 HIGHWAYS.
County board of supervisors has authority to close and discontinue a public road (Const. 1890, section 170).
3. EMINENT DOMAIN.
Neither the state nor any of its political subdivisions is required to tender in actual cash just compensation for property taken or damaged in eminent domain proceeding, and the requirement of just compensation in advance is satisfied when public faith and credit are pledged to a reasonably prompt ascertainment of payment and there is adequate provision for enforcing the pledge (Const. 1890 section 17).
4. EMINENT DOMAIN.
Abutting property owners damaged by closing of public road have adequate remedy (Const. 1890, section 170).
ON SUGGESTION OF ERROR. (Division B. Nov. 15, 1937.) [176 So. 910. No. 32842.]
1. HIGHWAYS. In proceeding to close road, where question whether road was private rather than public road was not raised or passed upon by county board of supervisors or circuit court issue could not be considered in Supreme Court (Code 1930 section 61). 2. APPEAL AND ERROR. The Supreme Court will not review another and a different case from that presented in the lower tribunals. 3. APPEAL AND ERROR. A suggestion of error, charging that, from original opinion, attorneys and the people did not know what to depend upon as to what the law was or what the courts would say on any legal proposition, that even the Constitution might be set aside at the pleasure of the courts, and that "it is no wonder the American people are fast beginning to have no respect for the Constitution or the laws," was improper.
October 18, 1937
APPEAL from the circuit court of Jackson county HON. W. A. WHITE, Judge.
Proceeding between Leo Byrd and others and the Board of Supervisors of Jackson County. From an adverse judgment, the former appeal. Affirmed.
On suggestion of error. Suggestion of error overruled.
Affirmed. Suggestion of error overruled.
H. B. Everitt, of Pascagoula, for appellants.
The court erred in affirming the order of the board in the matter of its order failing to show the jurisdictional fact that the road was a public road and, as such, under the jurisdiction of the board.
The court erred in affirming the order of the board of supervisors in that the order was in violation of Section 170 of the Constitution of the State of Mississippi, the board of Supervisors failing to follow Section 6340 of the Code of 1930.
The board of supervisors failed to do the several things required by Section 6340 of the Code of 1930 under which they were proceeding.
It was perfectly manifest to the court that the order of the board of supervisors was in violation of Section 17 of the State Constitution forbidding that "private property shall not be taken for public use except on condition that the damage be first paid to the person being damaged."
The board of supervisors had no authority for closing this road either by the acts of the Legislature or the Constitution to the damage and deprivation of ingress and egress from abutting property owner as was shown in this case.
There are no cases that we can find that give the board of supervisors the authority to close a public road. The cases holding that the board had the right to abandon or discontinue a public road of the county were rendered prior to the Constitution of 1890 providing that private property should not be taken or damaged except on the ascertainment and payment of the damage being done for public use in a manner to be provided by law. In the case of the abandoning or discontinuing of a public road resort would be either to the proceeding provided by Section 6340 or eminent domain proceedings.
Nicholson v. Stockett, Walker 67; Hatch v. Board of Supervisors, 56 Miss. 26; Hinton v. Perry Co., 84 Miss. 536, 36 So. 565; Ferguson v. Board of Supervisors, Wilkinson County, 149 Miss. 623, 115 So. 778; Craft v. DeSoto Co., 79 Miss. 618, 31 So. 204; Aden v. Issaquena County, 142 Miss. 696, 107 So. 753; Board of Supervisors, Lowndes Co. v. Ottley, 146 Miss. 118, 112 So. 466; City of Laurel v. Rowell, 84 Miss. 435, 36 So. 543; Herrod v. Carroll Co., 162 Miss. 78, 138 So. 800; Kwong v. Levee Comrs., 164 Miss. 250, 144 So. 693; Parker v. State Highway Commission, 173 Miss. 213, 162 So. 162.
Otto Karl Wiesenburg, of Pascagoula, for appellants.
The first question is whether the circuit court erred in construing the order of the board of supervisors closing the road as an order "abandoning the same as a public road." We submit that the circuit court did err. Neither under Section 6345, if this case is controlled by Section 6340 of the Code of 1930, nor under Section 61 of the Code of 1930, does the circuit court, as an appellate court, have the power to construe an order of the board of supervisors as something other than it was obviously intended to be.
4 C. J. S. 39; C. J. S., Appeal and Error, sec. 1874, par. 2; Section 61, Code of 1930; Shapleigh H. A. Co. v. Brumfield, 130 So. 98, 159 Miss. 75.
A judgment or decree will not be modified by an appellate court so as to give improper relief.
C. J. S., Appeal and Error, sec. 1879.
The petition on which the board made its order, on its face, did not confer jurisdiction upon the board of supervisors. There is no allegation in the petition that the road sought to be closed is a public road.
4 C. J. S., Appeal and Error, sec. 41, pages 122, 123; 2 Am. Jur., Appeal and Error, sec. 11; Tegarden v. McBean, 33 Miss. 283; Willis v. Reid, 38 So. 793, 86 Miss. 446; Jenkins v. McQuaid, 120 So. 814, 153 Miss. 185; Burnely v. Mullins, 38 So. 635, 86 Miss. 441; Rylee v. State, 63 So. 342, 106 Miss. 123.
The constitutional and statutory powers granted the board of supervisors do not include the acquisition of any property whatsoever for school purposes.
Sec. 170, Constitution of 1890; Chapter 9, Code of 1930; Adams v. First National Bank, 60 So. 770, 103 Miss. 744; State v. Board of Sup'rs, Grenada County, 105 So. 541, 141 Miss. 701; Tallahatchie Drainage Dist. No. 1 v. Yacona-Tallahatchie Drainage Dist. No. 1, 114 So. 264, 148 Miss. 182; Green v. Board of Sup'rs., Adams County, 161 So. 139, 172 Miss. 573.
The Fourteenth Section of the Constitution of the State of Mississippi provides "No person shall be deprived of . . . property except by due process of law." Considering that this is an ex parte proceeding, without notice to abutting landowners, and without providing for compensation first to be made, we submit that the action of the board violates this section.
Jack v. Thompson, 41 Miss. 49; State v. Woodruff, 150 So. 760, 170 Miss. 744.
Due course of law requires actual notice to known resident defendants.
Brown v. Levee Comrs., 50 Miss. 468; Section 24 of the Constitution.
The fourth question is whether Section 6340 of the Code of 1930 is the proper statutory proceeding governing the case of closing a road. Although it has been said that in the abandoning of a road or vacating of a road, the board of supervisors is not bound by Section 6340, Nicholson v. Stockett, 1 Walker (Miss.) 67; Noxubee County v. Long, 106 So. 83, 141 Miss. 72; Berry v. Board of Sup'rs, Jefferson Davis County, 126 So. 405, 156 Miss. 629; we submit to the court that in the matter of closing a road Section 6340 applies, since it comes within the meaning of the words "altered" or "changed" as set out in that section (Section 6340) and that an entirely different rule governs the closing of a highway as differentiated from the abandoning of a highway as determined in the following cases:
Town of Hazlehurst v. Mayes, 36 So. 33, 84 Miss. 7; Laurel Improvement Co. v. Rowell, 36 So. 543, 84 Miss. 435; Funderburk v. City of Columbus, 78 So. 1, 117 Miss. 173; City of Jackson v. Wright, 119 So. 315, 115 Miss. 829; Berry v. Town of Mendenhall, 61 So. 163, 104 Miss. 94; Goldstein v. Board of Levee Comrs., 140 So. 721, 165 Miss. 724; Theobold v. Louisville N. O. & T. Ry., 6 So. 230, 66 Miss. 279.
If Section 6340 controls, the entire proceedings of the board were void not only for failure to adjudicate the necessary jurisdictional facts, but also because of their complete failure to follow the statute.
Ferguson v. Steward, 111 So. 596, 146 Miss. 613; Craft v. DeSoto County, 31 So. 204, 79 Miss. 619; Aden v. Board of Sup'rs., Issaquena County, 107 So. 753, 142 Miss. 696; State v. Morgan, 31 So. 338, 79 Miss. 659.
Section 17 of the Constitution provides that "private property shall not be taken or damaged for public use except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law." "Compensation must precede the seizure of property for public uses."
Thompson v. Grand Gulf R. Co. , 3 Howard 240; Levee Board v. Dancey, 65 Miss. 335, 3 So. 568; Pearson v. Johnson, 54 Miss. 259; Alabama & R. Co. v. Bloom, 71 Miss. 247, 15 So. 72.
Landowner is entitled to benefit of doubt of right to exercise power of eminent domain.
Ferguson v. Board of Sup'rs., Wilkinson County, 115 So. 779, 149 Miss. 623.
The record in this case clearly shows that an abutting landowner without any other means of ingress and egress to his property than said road, opposed the proposal to change the road, and, as a matter of fact, is an appellant herein. That he had a vested property right in the road, which he could not be...
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