City of Toccoa v. Marchbanks

• Decision Date: 09 December 1919
• Docket Number: 135.
• Parties: CITY OF TOCCOA v. MARCHBANKS.
• Court: U.S. District Court — Northern District of Georgia

261 F. 684

CITY OF TOCCOA v. MARCHBANKS.

No. 135.

United States District Court, N.D. Georgia.

December 9, 1919

Fermor Barrett, of Toccoa, Ga., and W. A. Charters, of Gainesville Ga., for plaintiff.

J. C Edwards, of Clarkesville, Ga., and S. C. Upson, of Athens Ga., for defendant.

SIBLEY District Judge.

By an act passed in 1894 (Code Ga. 1910, Sec. 5206 and following) all corporations or persons authorized to take or condemn private property for public purposes are required to proceed as follows:

Failing to agree on compensation, a notice directed to the owner or owners of the property to be condemned, describing the property or franchises and the amount of interest to be condemned, fixing a time of hearing, giving the name of an assessor selected by condemnor, and requesting the owner to select an assessor, is to be served by the sheriff in person, 15 days before the date fixed for the hearing. Guardians ad litem may be appointed by the clerk of the superior court or ordinary for persons under disability. If the owner fails to name an assessor, the ordinary, or, if he is disqualified, the clerk of the superior court, selects one. The two assessors agree upon a third, but, on failure after five days to agree, the judge of the superior court selects the third. The three assessors have power to fix and alter the time of hearing, issue subpoenas, and compel attendance of witnesses, as in the superior court, are to be sworn to do 'exact justice between the parties according to law,' are to hear the evidence produced by either party, who may appear in person or by attorney, are to assess the value of the property taken, consequential damages to other property and consequential benefits, and render an award in a prescribed form as to each item, directing that the condemnor shall pay the condemnee the difference between the damage and the benefit. The award is filed within 10 days, and recorded in the office of the clerk of the superior court of the county where the property is situated, and either party, within 10 days, may-- 'enter in writing an appeal from the award to the superior court of the county where the award is filed. And at the term succeeding the filing of the appeal it shall be the duty of the judge to cause an issue to be made and tried by a jury as to the value of the property condemned or the amount of damage done, with the same right to move for a new trial and file a bill of exceptions as in other cases at common law.'

The appeal does not delay the work of the condemnor, if he pay the amount of the award to the owner or into court for him. The payment, or acceptance thereof, does not prevent either party from prosecuting an appeal. If no appeal is entered within 10 days from the filing of the award, and payment is not made, the clerk of the superior court--

'shall issue execution upon such award or judgment, which may be levied upon any property of the corporation or person condemning.'

In all cases the clerk shall enter the notice and award thereon upon the minutes of the court, and the condemnor shall pay the costs as provided by law in civil cases in the superior court.

Under this statute, the city of Toccoa notified Marchbanks, a citizen of another state, of a purpose to condemn for a public waterworks 17 acres of described land, naming July 3, 1917, as the date of hearing. The second assessor was named by Marchbanks, and a third named by the judge of the superior court on October 8, 1917. The assessors being sworn, a hearing was fixed by agreement of parties for October 22, 1917, and Marchbanks, on that date, filed before the assessors a pleading setting up at length his contention for damages in an amount of $26,000. The assessors made a net award of $255, October 29, 1917, which was duly filed in the superior court of Stephens county. On October 31, 1917, Marchbanks appealed from the award.

The next term of the superior court should have been held in February, 1918, but was not held. A special term was held in May, 1918. At said term, on May 6, 1918, a petition and bond for removal were filed in said case, and the record in the cause was filed in the District Court of the United States on October 3, 1918. A motion to remand was filed by the city of Toccoa at the next term, on November 4, 1918, upon the general ground that the District Court was without jurisdiction in the premises.

No hearing was had thereon until November 7, 1919, when an amendment was allowed, contending that the removal was too late, in that Marchbanks had pleaded before the assessors, taken part in the contest before them, accepted payment of the award, and suffered a term of the superior court to elapse before attempting to remove the case, and the removal was too late.

The matter seems of first impression in Georgia, and as the order to be granted is final, it is thought proper to state the reasons for it.

The elements of federal jurisdiction are conceded. The contention is as to when this proceeding became 'a suit of a civil nature,' within the meaning of Judicial Code, Sec. 28 (Act March 3, 1911, c. 231, 36 Stat. 1094 (Comp. St. Sec. 1010)), and at what time 'the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff,' under Judicial Code, Sec. 29 (section 1011).

In the many decisions of the federal courts upon the statutes of other states, the matter seems in some perplexity and doubt. The case must be decided upon a proper interpretation of the Georgia statute. In Weston v. City of Charleston, 2 Pet. 463, 7 L.Ed. 481, Chief Justice Marshall said:

'The term 'suit' is certainly a very comprehensive one, and is understood to apply to any proceeding in a court of justice, by which an individual pursues that remedy in a court of justice which the law affords him. The modes of proceeding may be various, but if a right is litigated between parties in a court of justice, the proceeding by which the decision of the court is sought is a suit.'

Regarding condemnation proceedings, in Kohl v. United States, 91 U.S. 367, 23 L.Ed. 449, the Court said:

'The right of eminent domain always was a right at common law. * * * That it was not enforced through the agency of a jury is immaterial; for many civil as well as criminal proceedings at common law were without a jury. It is difficult, then, to see why a proceeding to take land by virtue of the government's eminent domain, and determining the compensation to be made for it, is not, within the meaning of the statute, a suit at common law, when initiated in a court. It is an attempt to enforce a legal right.'

In this case the United States was proceeding in a Circuit Court of the United States. If the state itself, by a direct act, were undertaking to assert the right of eminent domain, the Eleventh Amendment of the Constitution would have to be considered. Even where the right of eminent domain was asserted through a private corporation, Mr. Justice Brewer, then Circuit Judge, in Colorado Midland Ry. Co. v. Jones et al. (C.C.) 29 F. 193, thought it inappropriate for the federal courts to interfere unless the sole question to be determined was the amount of the compensation to be paid. It must, however, be taken as settled by the decision in Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239, 25 Sup.Ct. 251, 49 L.Ed. 462, that when the right to take has been conferred upon conditions stated in statutes, that the construction and application of the statutes is a judicial mater, a controversy regarding which may be removed to the federal courts, although the propriety of the taking, as well as the compensation, is to be determined. This was recognized by the judges dissenting in that case, in Mason City Railroad Co. v. Boynton, 204 U.S.at page 578, 27 Sup.Ct. 321, 51 L.Ed. 629.

The question remains, however, as to when the procedure authorized by the state becomes a suit, that is, a judicial controversy before a court, and that is the point on which the decisions seem at variance. In Mississippi & Rum River Boom Co. v. Patterson, 98 U.S. 403, 25 L.Ed. 206, the proceeding before the appraisers, though made on notice, was said to be 'in the nature of an inquest to ascertain value, and not a suit at law in the ordinary sense,' and the right of removal after appeal from it was upheld. So in Pacific Removal Cases, 115 U.S. 1, 5 Sup.Ct. 1113, 29 L.Ed. 319, the initial procedure before a mayor and a jury was held to be similar, and that a removal on appeal was not too late. In Searl v. School District, 124 U.S. 197, 8 Sup.Ct.

460, 31 L.Ed. 415, the proceeding was initiated by a petition in court, naming the landowners, who were served with summons, and then freeholders were appointed to assess. It was there held:

'The fact that the Colorado statute

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