Hennen v. State ex rel. Short

• Decision Date: 22 May 1928
• Docket Number: Case Number: 18104
• Citation: 131 Okla. 29,267 P. 636,1928 OK 336
• Parties: HENNEN v. STATE ex rel. SHORT, Atty. Gen.
• Court: Oklahoma Supreme Court

1928 OK 336

267 P. 636

131 Okla. 29

HENNEN v. STATE ex rel. SHORT, Atty. Gen.

Case Number: 18104

Supreme Court of Oklahoma

Decided: May 22, 1928

Syllabus

¶0 1, 2. Eminent Domain--Requisites to Exercise of Power--Legislative Control--Delegation to Officials--Interference by Courts.

Paragraphs numbered 1 and 2 of the syllabus in the case of State ex rel. Dabney, Attorney General, v. Johnson, 122 Okla. 241, 254 P. 61, are adopted as paragraphs 1 and 2 of the syllabus in this case.

3. Same--Condemnation of Land for State Highway Purposes--Function of Court.

Where a petition by the State Highway Commission asking the appointment of commissioners to condemn lands for state highway purposes under chapter 48, Session Laws 1923-24, conforms to the provisions of the Constitution and the act, no issue is presented calling into exercise a judicial determination, and the functions of the court are merely ministerial.

4. Same--Highways--Powers of State Highway Commission.

The State Highway Commission, under chapter 48, Session Laws 1923-24, is vested with the power and duty necessary and proper to enable the Commission to fully and effectively carry out all the objects of that act, including the right and power to lay out and maintain state highways, and to make such necessary changes in the highways as are already laid out and established as the exigencies and necessities of the case may require, and to have rights of way condemned by procedure under the act for that purpose.

Commissioners' Opinion, Division No. 1.

Error from District Court, Washita County; E. L. Mitchell, Judge.

Petition by State Highway Commission for appointment of freeholders to appraise real estate, belonging to Wannita Hennen, to be used for highway purposes. Judgment for plaintiff, and order appointing freeholders in trial court. Defendant appeals. Affirmed.

P. D. Mitchell, for plaintiff in error.

The Attorney General, for defendant in error.

BENNETT, C.

¶1 This was a condemnation proceeding by the State of Oklahoma ex rel. George F. Short, Attorney General, against Wannita Hennen, owner of northeast quarter, section 27, township 10 north, range 17 west, Washita county, Okla. The petition sets forth in substance that this is an action instituted in name of the state upon relation of Attorney General, and brought at request of State Highway Commission of state of Oklahoma; that State Highway Commission is building a public highway in Washita county, Okla., designated as Federal Aid Project No. 226, section C, on State Highway No. 14, and that in construction of same, it is necessary to appropriate for its right of way the following property, to wit: A strip of land lying in northeast quarter section 27, township 10 north, range 17 west, in Washita county, Okla., said parcel of land being a right of way 80 feet in width, 40 feet on either side of center line of survey for Oklahoma Federal Aid Project No. 226, section C, and further described by courses and distances, and containing, according to survey, 5.94 acres, more or less; that said property is owned by defendant; that plaintiff has made diligent efforts in good faith to secure by purchase from defendant right of way over above lands, but defendant has refused and now refuses to grant right of way to state for such highway purposes, and that under and by virtue of section 11, chap. 48, Session Laws of Oklahoma 1923-24, Highway Commission is authorized to appropriate above described land for use as a highway for the public. A blue print of said property, marked "Exhibit A," is attached to and made a part of petition, along with an affidavit that said proposed highway is a designated state highway, and that it is necessary to secure a right of way over above described property in order to economically construct proposed highway, and this affidavit, marked "Exhibit B," is attached to and made part of petition. Wherefore, plaintiff prays that three disinterested freeholders, who are not interested in like question, be appointed by the judge to inspect and appraise the injury, if any, which defendant owner may sustain by reason of such appropriation of such land for public purposes, and that plaintiff be authorized to enter upon and make use of the land indicated upon payment of such damages to defendant as may be awarded in premises.

¶2 Said affidavit is made by the right of way engineer for Oklahoma State Highway Commission. He states therein that he is in charge of securing all necessary rights of way required for such highway, and that highway No. 14 is now being constructed in Washita county between towns of Cordell and Arapaho; that it is necessary to have and use the land (fully described as in the petition), upon which to construct said highway, and that same is within line of such highway, and necessary to its proper and economic construction; that the land contains the acreage described above, and that State Highway Commission has been unable to effect a reasonable and amicable purchase of said property from owner. A demurrer was filed by defendant, which was overruled; thereafter an answer was filed, in substance, a general denial, except that defendant admits that she is owner of lands described and also she alleges that section 11, chap. 48 of Session Laws of Oklahoma of 1923-24, is void because in conflict with Constitution of state of Oklahoma, and repugnant to section 24, art. 2, thereof; also repugnant to section 57, art. 5, in that the right of State Highway Commission to exercise privilege of eminent domain is not mentioned in, referred to, or recited in title to the act, and that said act is so contradictory and obscure that the true meaning thereof cannot be ascertained; and finally that George F. Short is without authority to bring or maintain the action, but that same should be brought, if at all, by county attorney of Washita county, Okla. Plaintiff filed a general demurrer to defendant's answer, which was sustained; thereupon, defendant, excepting, gave notice in open court of appeal, and seeks review here.

¶3 We are of opinion that since no bad faith or oppression is relied upon, the holding in the recent case of State ex rel. Dabney, Attorney General, v. Johnson, Judge, 122 Okla. 241, 254 P. 61 (Decided March 8, 1927), disposes of the question at issue in the case at bar, but we shall discuss briefly the contentions of defendant.

¶4 Defendant's first position is that county attorney, if any one, should have brought the proceeding. It appears by defendant's brief that county attorney of Washita county appeared for state, along with Attorney General in presentation of this matter to the judge, and, on that account, if for no other, we would hold defendant's contention is without merit. But see section 2, subds. (a), (b), (c), (d), and (e), chap. 48, Session Laws 1923-24.

¶5 Second. It is contended by defendant that the necessity for the use of this property is in no way made to appear so as to bring the same within the provisions of the law.

"The Legislature, in providing for the exercise of the power of eminent domain, may directly determine the necessity for appropriating private property for a particular improvement or public use, and it may select the exact location of the improvement. In such a case, it is well settled that the utility of the proposed improvement, the extent of the public necessity for its construction, the expediency of constructing it, the suitableness of the location selected and the consequent necessity of taking the land selected for its site, are all questions exclusively for the Legislature to determine, and the courts have no power to interfere, or to substitute their own views for those of the representatives of the people. (Citing Monongahela Nav. Co. v. U. S., 148 U.S. 312, 13 S. Ct. 622, 37 L. Ed. 463; U.S. v. Gettysburg Elec. Ry. Co., 160 U.S. 668, 40 L. Ed. 576, 16 S. Ct. 427). Similarly, when the Legislature has delegated the power of eminent domain to municipal or public service corporations, or other tribunals or bodies, and has given them discretion as to when the power is to be called into exercise and to what extent, the courts will not inquire into the necessity or propriety of the taking." 10 R C. L. par. 158, pp. 183, 184; citing St. L., etc., R. Co. v. Petty, 57 Ark. 359, 21 S.W. 884; Wulzen v. San Francisco, 101 Cal. 15, 35 P. 353, and many other cases.

¶6 It must be clear under the very terms of the Highway Act that the Legislature meant to give and did give and did vest in State Highway Commission not only right to determine what lands they should need for highway purposes, but also right to have same condemned for public use in manner set out in Said act. Defendant claims that they must be held to strict observance of all...