City of San Antonio v. Astoria

• Decision Date: 13 December 1933
• Docket Number: No. 9389.,9389.
• Citation: 67 S.W.2d 321
• Parties: CITY OF SAN ANTONIO v. ASTORIA.
• Court: Texas Court of Appeals

Page 321

67 S.W.2d 321

CITY OF SAN ANTONIO v. ASTORIA.

No. 9389.

Court of Civil Appeals of Texas. San Antonio.

December 13, 1933.

Rehearing Denied January 24, 1934.

Appeal from Ninety-Fourth District Court, Bexar County; F. Stevens, Judge.

Action for mandamus by P. A. Astoria against the City of San Antonio. From a judgment granting the mandamus, defendant appeals.

Affirmed.

W. C. Davis, T. D. Cobbs, Jr., and Jack Davis, all of San Antonio, for appellant.

Hirshberg, Mueller, Powell & Green, of San Antonio, for appellee.

SMITH, Justice.

The city of San Antonio instituted and prosecuted a statutory proceeding to condemn certain real property of P. A. Astoria for street widening purposes. The regularity and validity of the proceeding is not in question here.

Commissioners appointed to assess the damages for the taking of the property awarded Astoria $7,500 therefor. The city was satisfied with the award and tendered the amount thereof to Astoria, who rejected the tender and appealed from the award.

In pursuance of the statutory procedure, the city, in order to enter into possession of the condemned property pending the appeal, deposited the amount of the award with the county clerk, who, it is alleged, appropriated the fund to his own uses, so that it was not forthcoming upon the termination of the appeal, in which the award was increased to $10,000 with interest. Astoria thereupon brought this action for mandamus to require the city to pay the award in full. The mandamus was granted, and the city has appealed from the order thereon.

The deposit of the award with the county clerk was made under and by virtue of the provisions of article 3268, R. S. 1925, as follows:

"If the plaintiff in the condemnation proceedings should desire to enter upon and take possession of the property sought to be condemned, pending litigation, it may do so at any time after the award of the commissioners, upon the following conditions, to-wit:

"1. It shall pay to the defendant the amount of damages awarded or adjudged against it by the commissioners, or deposit the same in money in court, subject to the order of the defendant, and also pay the costs awarded against it."

It is the contention of appellant that when it deposited the amount of said award with the county clerk, such deposit fully and finally satisfied the constitutional requirement that no person's property shall be taken for a public use until adequate compensation therefor "shall be first made, or secured by a deposit of money." Const. art. 1, § 17.

The contention is, in short, that the deposit of the award with the county clerk amounted in law to payment of the award to appellee and put an end to appellant's liability to appellee for the amount thereof; that it was not incumbent upon appellant to keep the deposit good; and that the loss of the fund through the malfeasance of the depository the county clerk, should fall, not upon appellant, but upon appellee.

After some hesitation and much consideration and investigation, a majority of this court have reached the firm conclusion that both the justice and the law of the case are against appellant's contentions. The authorities are in confusion, as well as in actual conflict, upon the question. The precise point has not been decided by the appellate courts of Texas, although it has been written upon, adversely to appellant, in obiter dicta of the Beaumont Court of Civil Appeals, in Texarkana Ry. v. Brinkman, 288 S. W. 852, in which the judgment of that court was affirmed by the Supreme Court, without an expression upon that point, in 292 S. W. 860.

All decisions of the question must be anchored to the constitutional and inviolable inhibition against the taking of private property without first adequately compensating the owner.

It is true that the method of making compensation has been intrusted to the Legislature, but such method, when prescribed, must be so construed as to preserve inviolate to the owner the absolute assurance of compensation before he is required to surrender possession of his property, for, as said by our Supreme Court in an early case, "the making of compensation must be as absolutely certain as that the property is taken." Buffalo Bayou, B. & C. Ry. v. Ferris, 26 Tex. 588.

So must it be kept in mind that the owner is always an involuntary party to the proceeding to take his property, since such proceeding can arise only in the contingency of his refusal of consent to the taking.

By this process the taker assumes all the burden of the proceeding, which he must strictly pursue, step by step, until the owner is "adequately compensated," "in money."

It is true, also, that the Legislature, under the grant of authority to prescribe appropriate proceedings for taking, may lawfully provide the method of securing payment of compensation to the owner pending the final adjudication of the right to take and the amount of compensation, but this grant does not carry with it the right to prescribe any procedure which would lessen the absolute obligation of the taker to compensate the owner, "in money," for the property taken. Upon this conclusion we hold that when appellant deposited the award with the county clerk, the deposit was a continuing one, to be kept good by appellant against loss through the insolvency or defalcation of the depository. Lewis Em. Dom. (3 Ed.) §§ 680, 842; Buffalo Bayou, B. & C. Ry. v. Ferris, supra; Texarkana Ry. v. Brinkman, supra; Burns v. Ry., 110 Iowa, 385, 81 N. W. 794; Brown v. Ry., 64 Neb. 62, 89 N. W. 405; Id., 66 Neb. 106, 92 N. W. 128; White v. Ry., 64 Iowa, 281, 20 N. W. 436; Clelland v. McCumber, 15 Colo. 355, 25 P. 700, 701.

It is true that in Ackerman v. Huff, 71 Tex. 317, 9 S. W. 236, 238, our Supreme Court said that deposit with the county clerk satisfied "the constitutional requirement that `compensation shall be first made or secured by a deposit of money,'" but that expression was used in discussing a question of evidence, in a case in which there was no contention that the award was not finally paid over to the landowner, and the implied holding was therefore mere dictum. The maximum effect to be given the expression is that the deposit was sufficient compliance with the constitutional requirement to permit the condemner to enter into possession of the property to be taken, pending final adjudication of the right to take and the amount of the award to be made. It is perhaps true, too, that a different rule than that here announced may have been made in other states, but it cannot be adopted in this state, in view of our constitutional provisions. Oliver v. Ry., 83 Ga. 257, 9 S. E. 1086; Johnson v. Ry., 45 N. J. Law, 454, 17 A. 574; State v. Superior Ct., 80 Wash. 417, 141 P. 906.

The conclusion we have stated is supported by a rational analysis of the statute, which does not make the deposit a condition to the taking of the property absolutely, but only to possession "pending" the owner's appeal from the initial award. The statute does not provide that the deposit shall constitute payment, but that it shall be security for ultimate payment. It does not provide that upon making the deposit the condemner shall have the property, absolutely, but simply that he may have possession until the litigation thereon shall end with a final adjudication of the amount of compensation to be paid. The obvious inference deducible from the statute is that this temporary possession is subject, after all and as a matter of course, to the obligation of the condemner to "adequately compensate" the owner for his property. To hold otherwise, and construe the statute to mean that a deposit shall constitute actual payment, would render the act invalid, as in contravention of...