Daniels v. State Road Dept., 32664

• Court: Florida Supreme Court
• Writing for the Court: ROBERTS; THOMAS
• Citation: Daniels v. State Road Dept., 170 So.2d 846 (Fla. 1964)
• Decision Date: 30 September 1964
• Docket Number: No. 32664,32664
• Parties: Harold K. DANIELS and Ruth K. Daniels, Husband nad Wife, Appellants, v. STATE ROAD DEPARTMENT of Florida, an agency of the State of Florida, and Sarasota County, a political subdivision of the State of Florida, Appellees.

Page 846

170 So.2d 846

Harold K. DANIELS and Ruth K. Daniels, Husband nad Wife, Appellants, v. STATE ROAD DEPARTMENT of Florida, an agency of the State of Florida, and Sarasota County, a political subdivision of the State of Florida, Appellees.

No. 32664.

Supreme Court of Florida.

Sept. 30, 1964.

Rehearing Denied Nov. 6, 1964.

Clyde H. Wilson, Sarasota, for appellants.

Bryan W. Henry and P. A. Pacyna, Tallahassee, for State Road Dept. of Florida; Wm. S. Boylston, Sarasota, for Sarasota County, appellees.

ROBERTS, Justice.

In this direct appeal from a judgment entered in eminent domain proceedings, the questions of (1) the applicability of Section 29 of Article XVI, Florida Constitution, F.S.A., to condemnation proceedings instituted by a state agency or political subdivision to acquire property for a purely public purpose, and (2) the validity of Section 73.10(3), Florida Statutes, F.S.A., are squarely presented. Accordingly, we have jurisdiction of the appeal under Section 4, Article 5 of our Constitution.

Section 29 of Article XVI reads as follows:

'No private property, nor right of way shall be appropriated to the use of any corporation or individual until full compensation therefor shall be first made to the owner, or first secured to him by deposit of money; which compensation irrespective of any benefit from any improvement proposed by such corporation or individual, shall be ascertained by a jury of twelve men in a court of competent jurisdiction, as shall be prescribed by law.'

And the statute the validity of which was upheld in the lower court, Section 73.10(3), supra, provides that

'When the suit is by the state road department, county, municipality, board, district or other public body for the condemnation of a road right-of-way, the enhancement, if any, in value of the remaining adjoining property of the defendant property owner by reason of the construction or improvement made or contemplated by the petitioner, shall be offset against the manage, if any, resulting to such remaining adjoining property of the defendant owner by reason of the construction or improvement, but such enhancement in value shall not be offset against the value of the property appropriated, and if such enhancement in value shall exceed the damage, if any, to the remaining adjoining property there shall be no recovery over against such property owner for such excess.'

It is contended here by appellants, who are the owners-condemnees of the subject property, that Section 29 of Article XVI, supra, is applicable to the condemnation proceedings instituted by the appellees, who are the State Road Department of Florida and the County of Sarasota, to acquire appellants' property; that such constitutional provision 'permits the landowner to receive remainder damages without diminution from the benefit of any improvement proposed;' that Section 73.10(3), supra, authorizing the setoff of 'enhancement in value' against remainder damages is repugnant to such constitutional provision; and that it was, therefore, reversible error on the part of the trial judge to admit evidence of the increase in the value of the remainder of appellants' tract of land resulting from the construction of the highway through such tract.

The appellees concede that statements in some of the opinions of this court appear to support appellant's contention as to the applicability of Section 29 of Article XVI, supra, to eminent domain proceedings instituted by agencies or political subdivisions of the state, as well as to those instituted by private corporations or individuals. They point out, however, that this question has never been squarely presented to this court, so that the statements relied upon are obiter dicta; and they strongly urge that an examination of the Journal of the proceedings of the Constitutional Convention of 1885 at which Section 29 of Article XVI was first adopted, reveals clearly that it was intended to apply only to private corporations and individuals and not the State, its agencies and political subdivisions. We agree for the reasons stated hereafter.

It would first be remembered that the superior dominion--the 'eminent domain'--which the State holds over all the soil within its bounds is, like the police power, an inherent attribute of sovereignty to be exercised in case of public exigency or for the public good. It may be limited by the Constitution, but it is not created by the organic law of the State. 'It is an attribute of sovereignty which the state would have even [though] there were no constitutional grant of the power.' Spafford v. Brevard County (1926), 92 Fla. 617, 110 So. 451, 458. It could, apparently, be exercised without the payment of any compensation whatsoever to the owner of the land taken, in the absence of a constitutional inhibition, see Smith v. City of Greenville (1956), 229 S.C. 252, 92 S.E.2d 639; and, indeed, it seems that it the early days in some states it was common practice to lay out highways without compensation to the owner of the land--either by virtue of rights reserved in the grant of public lands or by a long-established practice based on the slight value of the land and the general need for roads. See the comment by the annotator in 68 A.L.R. at page 784.

It was, however, so much a matter of natural justice that private property should not be taken for public use without compensation that in almost all of the states a provision specifically forbidding the taking of private property for public use without just compensation was included as a part of their organic law. Such a provision is, of course, a part of the so-called Bill of Rights of the federal constitution, having been included as a part of the Fifth Amendment thereto; and it has been a part of Florida's organic law since 1838. It was included in all of the Constitutions of this State and was incorporated--apparently as a matter of course--as Section 12 of the Declaratin of Rights of the Constitution of 1885, F.S.A., which, with amendments, is our present constitution. Having provided in the traditional manner, in Section 12, that private property shall not be taken 'without just compensation,' it seems clear that in adopting an additional section relating to the exercise of the right of eminent domain the framers of the Constitution of 1885 intended to specify additional organic limitations upon the exercise of this sovereign right by 'any corporation or individual.' We so stated in State Plant Board v. Smith, Fla.1959, 110 So.2d 401, 405.

This brings us, then, to the first question presented here: Did the framers of the Constitution of 1885 intend that a state agency or political subdivision of the state should be subject to the additional limitations prescribed by Section 29 of Article XVI? Many state agencies, although purely public bodies, are or have been in the past designated as a 'body corporate' by statute and given many of the attritutes of a private corporation, such as the right to sue and to be sued. The State Road Department, one of the appellees here, was formerly such a statutory corporate entity. Yet it cannot be doubted that such a state agency retains its essential character as an arm of the state; and we think it is equally clear that the members of the Constitutional Convention of 1885 had in mind private corporations only, and not a public body, in adopting Section 29 of Article XVI.

We reach this conclusion, first, from an examination of the Journal of the Constitutional Convention of 1885. It there appears that the constitutional provision in question came out of the Committee on Private Corporations as a minority report (see pp. 296-298 of the Journal) in form almost identical to that in which it was finally adopted (with only the words 'or individual' omitted) and was tabled. It was then offered by the Committee on Miscellaneous Provisions, with the words 'or individual' now included (see pp. 488-489 of the Journal), and was adopted. It was placed by the Committee on Style and Arrangement of the Constitution of 1885 with other constitutional provisions relating specifically to private corporations and individuals. See Sections 28, 30 and 31 of Article XVI. Thus, the background against which it was adopted indicates, almost conclusively, that it was intended to apply only to private corporations (and individuals) to whom the Legislature might delegate the power of eminent domain in a proper case.

We need not rely entirely upon this, however. The language of the provision itself is indicative of the true intent of its adopters. It reads: 'No private property, nor right of way shall be appropriated to the use of any corporation or individual until full compensation therefor shall be first made to the owner, * * *' (Emphasis added.) As pointed out by the late and revered Justice Armistead Brown in Spafford v. Brevard County, supra, 110 So. at page 457:

'* * * in the exercise of eminent domain for the acquisition of lands for state roads, neither [the State Road Department nor Brevard County] is acquiring anything for itself in its corporate capacity, but only for the state, and all that either may acquire under the act here in question will be 'appropriated to the use of' the state. * * * The status of railroad and other private corporations, although they are permitted to condemn property only for public purposes, is quite different. * * * the title thereto, and the use, management, and operation thereof, is private, and the profits made go to the private owners. So, in a very real sense, the property acquired by the exercise of the delegated power of eminent domain by such corporations is 'appropriated to the use of' the corporations, and this section of the Constitution applies.'

Relevant here also is the fact that, prior to the Constitutional Convention of 1885, the Florida Legislature had delegated to public utility corporations (Ch. 1639, Acts of 1868) and to railroad and canal...