Dantzler v. Mississippi State Highway Commission

• Decision Date: 12 February 1940
• Docket Number: 33938
• Citation: 187 Miss. 721,193 So. 4
• Court: Mississippi Supreme Court
• Parties: DANTZLER v. MISSISSIPPI STATE HIGHWAY COMMISSION

193 So. 4

187 Miss. 721

DANTZLER v. MISSISSIPPI STATE HIGHWAY COMMISSION

No. 33938

Supreme Court of Mississippi, Division A

February 12, 1940

January 15, 1940

Suggestion Of Error Overruled February 12, 1940.

APPEAL from the circuit court of Harrison county HON. L. C. CORBAN Judge.

Proceeding by G. B. Dantzler against the Mississippi State Highway Commission to restrain the prosecution of a condemnation proceeding. From a judgment dismissing the petition petitioner appeals, and the commission moves to dismiss the appeal. Motion sustained.

On suggestion of error. Suggestion of error overruled. For former opinion, see 193 So. 4.

Motion to dismiss appeal sustained. Suggestion of error overruled.

E. R Holmes, Jr., Assistant Attorney-General, for the appellee on motion to dismiss.

Comes the State Highway Commission of Mississippi, appellee in the above styled cause, and moves this honorable court to dismiss this cause for the reason that it presents a moot question to this court, there now being no justiciable issue before this court for it to decide.

Gardner & Backstrom, of Gulfport, for appellant.

The question involved in this case is not moot for the following legal reasons, to-wit:

(a) The county court of Harrison County, Mississippi, sitting as a court of eminent domain, has, under section 693 of the Code of 1930, exactly the same jurisdiction as a special court of eminent domain organized under Chapter 26 of the Code of 1930, and no more. The county court, therefore, has no jurisdiction to adjudicate any question involving the right to exercise the power of eminent domain, except the amount of the damages to be awarded.

(b) Appeals from the county court, sitting as a court of eminent domain, are, under the provisions of section 704 of the Code of 1930, prosecuted to the circuit court on the record made in the county court, that is to say, on assignments of error and bills of exception. Neither the circuit court nor this court can review any question not decided by the county court sitting as a court of eminent domain.

City of Hattiesburg v. Pritchett, 160 Miss. 342, 134 So 140; State v. Carraway, 160 Miss. 263, 134 So. 846; Miss. State Highway Dept. v. Haines, 162 Miss. 216, 139 So. 168.

(c) It is obvious that the right to exercise the power of eminent domain in any given case, whether the statutory prerequisites to the exercise of that power have been observed, whether that power is being exercised in the statutory way, whether the exercise thereof is within the statutory delegation of that power, and whether the exercise thereof is subject to the limitations delegating that power, are judicial questions subject to adjudication by some court having jurisdiction to do so. Otherwise, it is obvious that due process would be violated. Compensation is not due process, and private property cannot be taken for a public use on compensation alone. The property owner must be afforded his day in court where he can contest the entire condemnation proceedings, or due process may as well be interred once for all. The appeal from the special court of eminent domain organized under Chapter 26 of the Code of 1930 is to the circuit court where a trial de novo is had. The circuit court has jurisdiction to adjudicate all questions involved in the condemnation. If the statutes of Mississippi confer upon the condemnee the power of final interpretation of the statutes conferring the power of eminent domain, the right to proceed in the county court in term time where a jury must be empaneled to try the issue of damages, or to proceed in vacation before the judge of the county court in vacation, where a jury cannot be empaneled, for lack of statutory authority, as held in the Haines case, supra, to settle the only question of which that court has jurisdiction, due process as well as equal protection of the law is already buried.

(d) It is perfectly plain that the statutes vesting in the county court only the jurisdiction exercised by justices of the peace, namely to assess the damages, and providing that appeals therefrom should be on assignments of error and bills of exception with no provision whatever for the trial of any other issue in eminent domain in any court violated due process unless the common law writ of prohibition saved the constitutionality of the county court's jurisdiction in eminent domain proceedings. In the case of City of Greenwood v. Humphreys, 182 Miss. 91, 179 So. 862, this court held that Section 1510 extended the scope of the writ of prohibition, leaving the common-law grounds therefor in full force.

(d) From the foregoing it is plain that the identical question raised by the motion to dismiss the appeal in this case because of a moot question is whether or not the condemnor may, by condemning and appropriating the land, after the refusal of the circuit court to issue a writ of prohibition, either in temporary or final form, destroy the statute, Section 1510 of the Code of 1930, insofar as the condemnee's right of appeal is concerned. If that position be sound, the condemnor is a favored suitor, and is entitled to a review of the decision of the lower court if adverse to the condemnor, while the same right is denied to the condemnee. It is needless to say that this would violate the equal protection of the law provision of the federal constitution.

Gardner & Backstrom, of Gulfport, for appellant on Suggestion of Error.

The court erred in ruling that Section 1510 of the Code of 1930 does not mean what its unambiguous language imports; that is to say, that section grants to the condemnee the unconditional right of appeal from an adverse ruling by the circuit court denying his petition for a writ of prohibition, whether the condemnation shall proceed or not. This court ruled that such right was provided for only in the event the condemnor elected not to proceed with the condemnation and appropriation of the land sought to be condemned. This ruling sliced an unambiguous statute in half, retained one-half, and repealed the other half. This was error.

If Section 1510 of the Code of 1930 means what this court has construed it to mean, then it should be stricken down in its entirety as granting a preference in favor of one suitor over another. As construed in this case it undoubtedly means that the condemnor is a favored suitor over the condemnee. The condemnor is granted an absolute right of appeal which is only conditionally granted to the condemnee. That much is known and read of all men. Such a statute is unconstitutional as granting a preference to one suitor over another. Our law, under the decision in this case, is in this attitude: The county court has jurisdiction only of the amount of the damage to be awarded. The circuit court, on appeal, can review no other question. This court, on appeal, can do no more. The judicial determination of the public necessity for the taking is written out of the constitution.

In the language of the court in this case, Section 1510 of the Code of 1930 safely "guards in" the interest of the public. But by the same decision the same statute safely guards out all rights antagonistic to the rights of the public. Notwithstanding the fact that the primary purpose of free government is to safeguard the rights of the governed, yet, when those rights are in seeming conflict with alleged rights of the public, in the language of the poet, "Hills peep o'er hills and Alps on Alps arise."

If we interpret aright the decision in this case the court holds the prime purpose of the enactment of Section 1510 is to protect the public interest against delay in condemnation proceedings, which view does violence to the wording and purpose of the statute. Evidently it was enacted to guarantee the condemnee the right afforded by a writ of prohibition if the condemnor was proceeding...