Ex parte Reynolds

• Decision Date: 07 December 1889
• Parties: REYNOLDS EX PARTE
• Court: Arkansas Supreme Court

12 S.W. 570

52 Ark. 330

REYNOLDS EX PARTE

Supreme Court of Arkansas

December 7, 1889

CERTIORARI to Chicot Circuit Court, CARROLL D. WOOD, Judge.

The Louisiana, Arkansas and Missouri Railroad Company having instituted proceedings under the statute (Mansf. Digest secs. 5464, 5466) for the condemnation of a right of way over the lands of Reynolds, the Circuit Judge, in vacation, on the company's application, made an order designating a sum of money to be deposited, subject to the court's order, for the purpose of making compensation when the amount thereof should be assessed. Reynolds then filed his petition in this court for a writ of certiorari to quash the order directing the deposit, on the ground, among others, that the statute authorizing it is unconstitutional; that the judge had no power to make the order, and that the amount to be deposited could only be ascertained by the assessment of a jury. He also objected to the order on the ground that no legal notice of the application upon which it was made was served upon him.

D. H Reynolds, for petitioner.

1. Argues orally the unconstitutionality of the act, as violating art. 12, sec. 9, Const. 1874, citing, among others 3 Paige, 45; Redfield Am. Ry. Cases, p. 230.

2. Notice must be given as in other civil cases. Mansf. Dig., secs. 5458, 5467; Acts 1885, pp. 179, 180; Mansf. Dig., secs. 4967, 4977, 4992, 5201, 5203, 5212; 12 N.Y. 74; 130 U.S. 562; Cooley Const. Lim., p. 703; 54 N Y., 58; Manier on R. R., etc., secs. 343, 346, 453, etc.; 102 Ill. 459; 121 id., 214; 93 U.S. 277.

3. Pleadings are necessary in order to make up the issue, where special damages are claimed. 45 Ark. 280; 47 id., 342, 330-1; 45 id., 255; 44 id., 362; 101 Ill. 333; 102 id., 459; 105 id., 519; Lewis Em. Dom., secs. 388-9, 390-7; 111 N.Y. 600; Mills Em. Dom., secs. 84, 107, 100; Manier on R. R., etc., secs. 401, 390; 113 N.Y. 279; 108 N.Y. 490; Cooley Const. Lim., pp. 657, 672, 674.

John McClure, for respondent.

Argued orally that the act is constitutional, and that the landowner is not entitled to notice, etc., etc.

1. The landowner not entitled to notice of the application to the court or judge, when it determines or fixes the amount to be deposited. 23 N. J., 232-3; 4 Ont. Ch. D., 593; 21 N.Y. 596; 43 Oh. St., 467; 9 How. Pr. N. S., 137; 25 Pa. 397; 40 Ark. 508; 43 Ark. 341.

2. The making of compensation need not precede an entry upon the property, provided some definite provision is made whereby the owner will certainly obtain compensation. 34 Ala. 461; 31 Ark. 494; 19 Conn. 142; 20 Flor., 597; 19 Geo., 427; 7 Ind. 32; 34 Me. 247; Lewes Em. Dom., sec. 456; 43 Ark. 120.

COCKRILL C. J. HEMMINGWAY, J., dissent.

OPINION

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., secs. 5464-5-6.

It is argued that this section attempts to authorize a proceeding which is prohibited by section 9 of article 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 twelve men, in a court of competent jurisdiction, as shall be prescribed by law."

Prior to the adoption of the Constitution of 1868, the 48th 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 the C. & F. Ry. 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 Martin, ex parte, 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 it as his opinion, 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 C. & F. Ry. v. Turner, 31 Ark. 494, sup., 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. West Pac. Ry. 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. Ry., 47 Cal. 517.

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 landowner 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 landowner 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 St. Louis & S. F. Ry. v. E. & H. F. B. Co., 85 Mo. 307; Central Branch U. P. Co. v. Atchison, etc. Ry., 28 Kan. 453 S. C.; Wagner v. Ry., 38 Ohio St. 32; Ry. v. Dyer, 35 Ark. 360.

1. Right of way: Compensation for.

But a question of more difficulty is how shall the amount of the security be fixed? Must it be "ascertained by a jury of twelve men in a court of competent jurisdiction," or does that clause of the Constitution refer only to the final assessment of the compensation, leaving the Leigslature free to provide another method for ascertaining the amount of security to be demanded? The probable design in inserting the clause as to jury trial in this 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 constitutional right. It was not guaranteed in such cases by the Constitution of 1836. Railway v. Trout, 32 Ark. 17. The purpose, we must suppose, of introducing this provision into the Constitutions of 1868 and 1874, was, as is said by the Supreme Court of Ohio, of a like provision in the Constitution of that State "to enlarge the rights of the citizens by extending the right of trial by jury to a class of cases wherein it did not before exist. But," continues the court, "we can find no evidence on the part of the framers of the Constitution to fortify this extension of the right with immunities and privileges unknown in the history of the law relating to juries and not...