Ex Parte Reynolds

• Decision Date: 07 December 1889
• Parties: <I>Ex parte</I> REYNOLDS.
• Court: Arkansas Supreme Court

12 S.W. 570

Ex parte REYNOLDS.

Supreme Court of Arkansas.

December 7, 1889.

Certiorari to circuit court, Chicot county; C. D. WOOD, Judge.

Proceeding by the Louisiana, Arkansas, & Missouri Railway, to condemn right of way through petitioner's lands, under Act April 28, 1873, (Mansf. Dig. §§ 5464-5466.) The judge in vacation fixed the amount of the deposit to be made, as is contended by petitioner, without due notice. Petitioner resisted the proceedings on the ground, among others, that the act was unconstitutional, as being in violation of section 9, art. 12, Const. 1874, and brought certiorari to this court, to quash proceedings.

D. H. Reynolds, for petitioner. John McClure, for respondent.

COCKRILL, C. J.

The question which controls this proceeding is the constitutionality of the seventh section of the act of April 28, 1873, which reads as follows: "Where the determination of questions in controversy in such proceedings is likely to retard the progress of work on, or the business of, such railroad company, the court, or judge in vacation, shall designate an amount of money to be deposited by such company, subject to the order of the court, and for the purpose of making such compensation, when the amount thereof shall have been assessed as aforesaid, and said judge shall designate the place of such deposit. Whenever such deposit shall have been made in compliance with the order of the court or judge, it shall be lawful for such company to enter upon such land and proceed with their work through and over the lands in controversy prior to the assessment and payment of damages for the use and right, to be determined as aforesaid. In all cases where such company shall not pay or deposit the amount of damages assessed as aforesaid within thirty days after such assessment, they shall forfeit all rights in the premises." Mansf. Dig. §§ 5464-5466. It is argued that this section attempts to authorize a proceeding which is prohibited by section 9, art. 12, of the constitution of 1874. That section is as follows: "No property, nor right of way, shall be appropriated to the use of any corporation until full compensation therefor shall be first made to the owner, in money, or first secured to him by a deposit of money, which compensation, irrespective of any benefit from any improvement proposed by such corporation, shall be ascertained by a jury of 12 men, in a court of competent jurisdiction, as shall be prescribed by law."

Prior to the adoption of the constitution of 1868, the forty-eighth section of the fifth article of which was similar to the section above quoted, there was no provision in the organic law of this state requiring compensation to precede the appropriation of private property for public use. In the case of Railway Co. v. Turner, 31 Ark. 494, Chief Justice ENGLISH, in treating of the power of the legislature under the constitution of 1836, said there were expressions in the case of Ex parte Martin, 13 Ark. 198, which indicated that the learned judge who delivered the judgment was of opinion that it was incompetent, even in the absence of such a provision, for the legislature to stop short of providing for actual payment of compensation to the owner before his property could be appropriated. He states, however, that that view is opposed to the clear weight of authority. In jurisdictions where it was settled that all that could be demanded by the owner of the property to be condemned was provision for a remedy whereby he could certainly obtain compensation, a difference of opinion existed as to what remedy or provision was adequate, to a legal certainty.

In the case of Railway Co. v. Turner, supra, a bond, with sureties, which was all that was demanded by the statute in force prior to the constitution of 1868, was held to be adequate. In California, it was at one time held that, as the payment of compensation need not precede the company's entry upon the land to be condemned, an act of the legislature was valid which gave the right of entry, for the purpose of constructing the road, upon paying into court a sum of money sufficient to pay the damages when assessed, or upon giving security to be approved by the court or judge, (Fox v. Railway Co., 31 Cal. 538;) but in the subsequent case of Sanborn v. Belden, 51 Cal. 266, it was ruled that the bond with sureties which the act provided for did not afford an adequate means of compensation, because the judgment against the sureties might not be efficient. See, too, Davis v. Railway Co., 47 Cal. 519-521. These are instances of the conflict of opinion on the subject. In addition to these perplexities, one of the inevitable results of making compensation in advance an unconditional prerequisite to the right of entry put it in the power of a single individual upon any proposed line of railway to check its construction, if not to thwart the enterprise, where time became material in the undertaking, by resorting to continuances, changes of venue, new trials, and appeals. The provision of the constitution above quoted treats of all these difficulties, and avoids the extremes of each. It affords protection to the land-owner, while taking from him the power to check unnecessarily the progress of public enterprise, by requiring in advance of any appropriation of his land actual payment of compensation, or what was deemed the most certain security therefor, — that is, a deposit of money, instead of a bond with sureties, as the statute formerly required. But when the land-owner is secured in the manner required by the constitution, the conditions of that instrument are fulfilled, and the company is authorized to enter upon the land, to construct its road, without further delay. See Railway Co. v. Fire Brick Co., 85 Mo. 307; Railroad Co. v. Railway Co., 28 Kan. 453; Wagner v. Railway Co., 38 Ohio St. 32; Railway Co. v. Dyer, 35 Ark. 363.

But a question of more difficulty is, how shall the amount of the security be fixed? Must it be "ascertained by a jury of 12 men, in a court of competent jurisdiction," or does that clause of the section refer only to the final assessment of the compensation, leaving the legislature free to provide another method for ascertaining the amount of security to be demanded? A literal construction of the language might lead to a negative answer to the latter question, but is that the meaning of the terms used? The probable design in inserting the clause as to jury trial in its connection, and its proper limitation as here used, may in some measure be elucidated by recalling the restrictions the legislature could impose upon that privilege in a statutory proceeding unknown to the common law; and also by referring to the established practice of the courts in taking security, where the law required it, as preliminary to the provisional possession of property taken from the owner, or one claiming to be the owner, under process of law, in other proceedings as well as those to enforce the right of eminent domain. In the absence of an express provision on the subject, trial by jury in a proceeding to assess damages for appropriating a right of way is not a...