Crill v. State Road Department

Decision Date28 June 1928
Citation96 Fla. 110,117 So. 795
PartiesCRILL et al. v. STATE ROAD DEPARTMENT et al.
CourtFlorida Supreme Court

En Banc.

Original application for writ of prohibition by Josephine E. Crill and others against the State Road Department and another.

Peremptory writ denied.

Syllabus by the Court

SYLLABUS

Writ of prohibition cannot be used as substitute for writ of error or appeal, or certiorari; writ of prohibition will not lie to prevent erroneous exercise of existing jurisdiction. The writ of prohibition cannot be used as a substitute for a writ of error, or appeal, or certiorari; nor will it lie to prevent the erroneous exercise of an existing jurisdiction.

Prohibition will not issue to prevent circuit court from entertaining jurisdiction of condemnation proceedings merely because of claimed unconstitutionality of statute (Laws 1925, c. 10118). Where, as here, the circuit court has jurisdiction of the subject-matter, that is, of proceedings in condemnation, writ of prohibition will not be issued to prevent the circuit court from entertaining such proceedings merely because the constitutionality of the statute under which the petitioner in condemnation claimed the right to condemn is denied by the defendant in such proceedings.

Validity of law authorizing condemnation proceedings, and whether right to condemn property existed thereunder, are primarily questions of law not of jurisdiction (Laws 1925, c. 10118). Whether the statute, chapter 10118 of the Laws of 1925, was constitutional or not, and whether, under it, the petitioner in condemnation proceedings had any right to condemn the property described in the petition, are not questions going to the fundamental jurisdiction of the court over the subject-matter, but are primarily merely questions of law affecting the right of the petitioner to maintain the suit which questions it had or might become necessary for the circuit court to decide in its conduct of the proceedings.

Jurisdiction of circuit court over condemnation proceedings is deprived from constitutional provisions and general statutes (Laws 1925, c. 10118; Const. art. 5, § 11). The circuit court does not derive its jurisdiction over condemnation proceedings from chapter 10118 of the Laws of 1925, but from section 11 of article 5 of the Constitution and our general statutes pursuant thereto.

Absence of adequate remedy by appeal or writ of error does not of itself authorize writ of prohibition. The absence of adequate remedy by appeal or writ of error is not, of itself, ground to authorize a writ of prohibition, provided the subordinate court has jurisdiction.

COUNSEL

Charles P. Cooper, of Jacksonville, for petitioners.

Thomas W. Fielding and W. S. Broome, both of Gainesville, amici curiae.

B. A Meginniss, of Tallahassee, and Hampton & Hampton, of Gainesville, for respondents.

OPINION

BROWN J.

This is an application for writ of prohibition to be directed to the circuit court of Alachua county and Hon. A. V. Long, the judge thereof, and to the state road department of Florida, for the purpose of prohibiting any further action in a certain condemnation proceeding brought by the state road department in said county against Josephine E. Crill and others, in which it was sought to condemn certain real estate for right of way of state road No. 14, together with 6,000 cubic yards of sand to be taken from 1.83 acres of land close to or adjoining said right of way; the real estate sought to be condemned and the land from which the sand was sought to be taken being particularly described in the petition for condemnation.

The defendants in the condemnation proceeding appeared specially for the purpose of filing in the lower court a motion to quash the notice to answer and show cause in said proceeding, which had been issued and served on the defendants, upon the ground that the court had no jurisdiction of the parties defendant, and that the notice did not run in the name of the state of Florida as required by law. On application of the petitioner, the court permitted the notices to be amended instanter, and denied the motion to quash, and the defendants were allowed a certain time within which to appear and show what right, title, or interest they had in or to said property and to show cause why it should not be taken for the uses and purposes set forth in the petition.

The defendants then filed a motion to dismiss the petition for condemnation upon the grounds: (1) that the petition was filed and was being prosecuted under and by virtue of chapter 10118 of the Laws of 1925, and that said act is void as being in violation of section 16 of article 3 of the Constitution; (2) that the state road department had no valid or legal power or authority to prosecute this proceeding, said statute above referred to being unconstitutional and void; (3) that the court had no jurisdiction, power, or authority to entertain this condemnation proceeding brought under said unconstitutional statute; and (4) said statute being unconstitutional, and the state road department and the court not having the power and jurisdiction attempted to be conferred thereby, said petition seeks to take the property of defendants without due process of law without just compensation, in violation of constitutional guaranties.

Defendants also filed a motion to strike certain portions of the petition regarding the sand sought to be condemned upon the ground that it is not permissible under said statute to condemn sand which is a part of the land owned by the defendants in fee, and which must first be severed from such land and become personal property before it is subject to condemnation under the statute, and upon other grounds.

Upon hearing, the motion to dismiss the petition in condemnation as well as the motion to strike certain portions of the petition were each overruled and denied, and the court made an order allowing the defendants certain time for filing an answer to the petition.

Thereafter this suggestion for writ of prohibition was filed in this court. The grounds of the application for the writ of prohibition are very much the same as those interposed in support of the motion made in the court below to dismiss the proceedings. It is alleged that the statute authorizing the state road department to maintain proceedings for the condemnation of land and material for road construction purposes is unconstitutional and void, and that therefore the road department had no right to bring the proceeding here in question nor had the court any right to entertain such proceeding, and that the applicants are therefore entitled to writ of prohibition. It is further alleged in support of the application here made, that, under section 1513, Rev. Gen. Stats., which prevails in this proceeding, it is expressly provided that in no case shall a writ of error from a condemnation proceeding operate as a supersedeas where the petitioner pays the adjudged amount of compensation into court; and that, if the state road department obtains final judgment, the defendants will have no effective remedy by appeal or writ of error to prevent the unlawful taking of said real estate and sand; that said road department would enter upon said land and sand and destroy the same and a writ of error without supersedeas would be of no effect or benefit.

One of the respondents, to wit, Hon. A. V. Long, circuit judge, filed a demurrer to the application or suggestion for writ of prohibition, setting up, among other things, that the circuit court for Alachua county is a court of original and general jurisdiction; that said court has acquired and has jurisdiction of the parties and the subject-matter; that the judge of said court is not shown to be disqualified to act; that the court is therefore empowered to pass upon the constitutionality of said chapter 10118 of the Laws of 1925, and that, if said court should err in holding said law to be constitutional, the remedy to correct such error is by writ of error or other appropriate proceedings for review; that supersedeas is not a right guaranteed by the Constitution, and the fact that the Legislature has enacted that, where the amount of compensation found by the verdict of the jury in condemnation proceedings has been paid into court, no writ of error shall operate as a supersedeas of a final judgment therein so as to prevent an appropriation of the property pending proceedings in error, does not authorize the awarding of a writ of prohibition against the court in which the final judgment may be entered, or against the judge of said court; that the suggestion for writ of prohibition does not claim or assert that said statute, providing that, under the circumstances above mentioned, a writ of error shall not operate as a supersedeas to the final judgment, is unconstitutional, or that said statute deprives the parties of their property without compensation.

The state road department filed an answer to the application, also embracing matter in the nature of a demurrer.

The first question to be determined is whether, upon facts alleged in the application, this court would be authorized to issue a writ of prohibition stopping further proceedings in the circuit court. If this question be determined adversely to the applicants for the writ, it will not be necessary for this court to pass upon the constitutionality vel non of chapter 10118.

The writ of prohibition is that process by which a superior court prevents an inferior court of tribunal from usurping or exercising a jurisdiction with which it has not been vested by law. It is an extraordinary writ, because it only issues when the party seeking it is without...

To continue reading

Request your trial
45 cases
  • State ex rel. Losey v. Willard
    • United States
    • Florida Supreme Court
    • 24 Agosto 1951
    ...So. 212; State ex rel. Schwarz v. Heffernan, 142 Fla. 137, 194 So. 313; Lorenzo v. Murphy, 159 Fla. 639, 32 So.2d 421; Crill v. State Road Dept., 96 Fla. 110, 117 So. 795. The charge against the relators was one of which the Criminal Court of Record of Dade County had jurisdiction and hence......
  • State v. Love
    • United States
    • Florida Supreme Court
    • 14 Febrero 1930
    ... ... a component part thereof, from suit ... State ... agency or department may be appropriate pleading question ... constitutionality of statute under which suit was filed ... immunity ... Statute ... provision authorizing suit against state road department on ... contract claims held invalid as not within title; statute ... provision ... the remedy applied for, that is, writs of prohibition. It was ... held in the case of Crill v. State Road Department, ... 96 Fla. 110, 117 So. 795, 798, that the circuit court was ... ...
  • State Ex Rel. Smith v. Gomez
    • United States
    • Florida Supreme Court
    • 5 Enero 1938
    ... ... adjudicate the class of cases to which the particular case ... belongs. Crill v. State Road Dept. [96 Fla. 110, 117 ... So. 795] supra ... 'Like ... all other ... ...
  • Klem v. Espejo-Norton, 3D06-3080.
    • United States
    • Florida District Court of Appeals
    • 25 Junio 2008
    ...mechanic lien foreclosures and, accordingly, did not lack subject matter jurisdiction over that count." (quoting Crill v. State Road Dep't, 96 Fla. 110, 117 So. 795, 798 (1928))) (citations omitted), review denied, 790 So.2d 1111 (Fla.2001); Escudero, 689 So.2d at 1144. Rather, it involves ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT