Dean v. County Board of Education

Decision Date18 October 1923
Docket Number6 Div. 778.
Citation210 Ala. 256,97 So. 741
CourtAlabama Supreme Court

Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.

Proceeding begun in the probate court by the County Board of Education of Jefferson County, to condemn certain lands of E. E. Dean. From a judgment of condemnation in the circuit court, to which Dean appealed, respondent now appeals. Reversed and remanded.

These charges were requested by and refused to respondent:

"A. The court charges the jury that the owner of the land sought to be condemned in this proceeding is entitled to receive the real value of the land to the owner as it is actually situated and not merely its value regarding it as a separate and independent piece of land."
"F. The court charges the jury that the tax assessment sheets introduced in evidence have no legal tendency to prove the value of the property involved in this proceeding."

Horace C. Wilkinson, of Birmingham, for appellant.

Huey & Welch, of Bessemer, for appellee.


The county board of education of Jefferson county filed its petition (verified by the oath of one of its attorneys) in the probate court to condemn for school purposes the land specifically described.

Among other things, it is averred in that pleading: That petitioner is the duly and legally constituted board provided for in sections 1 to 29, inclusive, of the act of September 25, 1919, referred to as the School Code (Gen. Acts 1919, p. 567). That petitioner "has the general administration and supervision of the public schools, school buildings, and the educational interest of Jefferson county, Alabama, and has its legal residence in said county, and is discharging the duties, in said county, imposed on such board by said act." That "one of the public schools of Jefferson county, Alabama, is located in school district No. 14-A, in or at what is known as Hueytown. Your applicant owns the building and site of said school. That the attendance at said school has outgrown said site and building and it is now necessary to rebuild said building or to enlarge the same in excess of the land or ground now owned by applicant at said place. Applicant is now desirous of and proposes to rebuild or enlarge said school building and property so as to make the same in keeping with the needs and requirements of said school. To rebuild or enlarge the school buildings for said school so as to make them adequate for the needs of said school it is necessary to acquire additional land, additional ground or land being essential to the proper equipment of said school in keeping with the plans proposed therefor. The available and suitable land necessary to be added to the present site of said school in order to make it extensive enough to supply the needs of said school at the present time and for a reasonable time in the future is owned by the defendant, E. E. Dean. The said land so owned by said defendant, and hereinafter described, are [is] contiguous to the present site of said school and well located for such addition." That "on or about February 20, 1922," applicant took up "with the said E. E. Dean the proposition of purchasing the land hereinafter described as an addition to said school site and tendered to him three hundred dollars in lawful money of the United States of America and a deed conveying said land by him to applicant, which said deed is hereto attached and marked Exhibit A and made a part hereof. Applicant avers that said land so described in said deed is essential to the proper equipment of said school, and that said three hundred dollars was at the time of said tender and now is a fair and reasonable market value of said land, which said lands are described ***"; that "notwithstanding the fact that applicant tendered said Dean said money, which was an adequate sum for the purchase price of said land, and tendered him said deed for his execution, and requested him to execute said deed and deliver the same to applicant and accept said money, he did then and there and has continuously up to this time declined to accept the same and to execute said deed, giving as his reason for declining to accept said tender and execute said deed that the tract described in said deed and desired by applicant was only part of a larger tract owned by him at that place ***"; and that "said land being contiguous to the present school site of said school now owned by applicant and being essential to the proper equipment of said school this applicant has the right under the law to come into this court and invoke its jurisdiction for the purpose of and to have said land described in paragraph four hereof duly and lawfully condemned as and for an addition to said school site of said school." The petition concludes with the usual prayer for process and condemnation "for the use and benefit of said school and district and that the title to said property may be vested in *** applicant as the law requires," and with the general prayer.

Demurrer being decided against respondent-defendant, issue was joined on the motion to quash the petition and the general issue, and there was decree of condemnation of the lands described in the petition.

Appellant's counsel states his fundamental insistences as follows:

"Appellant contested the right of appellee to condemn this property on two theories: First, that there was nothing before the court to show that the appellee had ever determined that the property was necessary for school purposes; and, second, on the theory that the statute purporting to authorize a condemnation of the property is unconstitutional."

The unconstitutionality of the act is predicated upon the wording of the statute (Gen. Acts 1919, pp. 567, 588, § 26), as follows:

"The county board of education shall have the right to acquire, purchase by the institution of condemnation proceedings if necessary, lease, receive, hold, transmit and convey the title to real and personal property for school purposes, except where otherwise provided. It shall have the power to sue and contract, all contracts to be made after resolutions have been adopted by the board and spread upon its minutes. All processes shall be executed by service on the executive officer of the board."

It is insisted, of the power of eminent domain sought to be conferred and to be exercised, that it was not prescribed by the act for "the payment of compensation" for the land sought to be condemned.

Pertinent provisions of section 26 of the act (Gen. Acts 1919, pp. 567, 588), as we interpret them, are that the county board of education is a quasi corporation ( Kimmons v. Jefferson County Board of Education, 204 Ala. 384, 387, 85 So. 774; Allred v. Dunn, 207 Ala. 469, 93 So. 390, 391; Board of Education of Escambia County v. Watts [Ala. App.] 95 So. 498) that is given the right and power to acquire and hold real property for school purposes, by purchase, by contract, by condemnation, by lease, etc.

The necessity for the acquiring by condemnation of real property for school purposes is a matter for the determination of the board of education rather than by the trial of the fact on the hearing of the petition for condemnation. We are of opinion that the averments of fact contained in the petition for condemnation, and the prosecution thereof to a judgment by the board, as petitioner, was a sufficient expression of the judgment of that board and corporation that the lands sought for school purposes were necessary to be obtained by its condemnation without other statement in the minutes of the board to that end.

The term "necessary," as used in section 26 of the School Code, and that of "actual necessity," contained in section 3867 of the Code, are different. The term in the latter statute is where property already devoted to a public use is sought to be condemned, and has been the subject of recent discussions by this court not necessary to be considered in the case before us, since the lands sought to be condemned are not of that class. However, the latter section has reference to the need of the land, as distinguished from the need for condemnation to secure it. M. & G. R. Co. v. Ala. Mid. Ry. Co., 87 Ala. 501, 6 So. 404; M. & B. R. Co. v. L. & N. R. Co., 192 Ala 136, 68 So. 905; L. & N. R. Co. v. W. U. T. Co., 195 Ala. 124, 71 So. 118, Ann. Cas. 1917B, 696; W. U. T. Co. v. L. & N. R. Co., 199 Ala. 441, 74 So. 946; Ala. Pub. Serv. Com. v. L. & N. R. Co., 206 Ala. 326, 89 So. 524. Under the School Code, § 26, the necessity for the land does not enter into the evidence, but is determined by the court, as a legal question, on the right of condemnation presented by the pleadings. London v. Sample Lumber Co., 91 Ala. 606, 8 So. 281; M. & G. R. Co. v. Ala. Mid. Ry. Co., supra; Jones v. Jefferson County, 206 Ala. 13, 89 South, 174. The right of eminent domain is an "attribute of sovereignty inherent therein as a necessary and inseparable part thereof." Ala. Interstate Power Co. v. Mt. Vernon, etc., Co., 186 Ala. 622, 65 So. 287. And the Legislature may prescribe who may exercise the power of eminent domain. Sloss-Sheffield S. & I. Co. v. O'Rear, 200 Ala. 291, 76 So. 57. Inasmuch as the right lies dormant in the state until legislative action is had pointing out the occasion, mode, conditions, and agencies for its exercise, the right to exercise the power must be conferred by statute, either in express words or by necessary implication, and is not to be gathered from doubtful inferences. Ala. Interstate Power Co. v. Mt. Vernon, etc., Co., 186 Ala. 622, 65 So. 287. The public policy of the state in this regard has been declared by the Legislature within constitutional bounds. ...

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