Hinds County v. Johnson

• Decision Date: 03 December 1923
• Docket Number: 23795
• Citation: 98 So. 95,133 Miss. 591
• Court: Mississippi Supreme Court
• Parties: HINDS COUNTY et al. v. JOHNSON et al

98 So. 95

133 Miss. 591

HINDS COUNTY et al. v. JOHNSON et al

No. 23795

Supreme Court of Mississippi

December 3, 1923

Division A

(Division A.) January 1, 1920

1. CONSTITUTIONAL LAW. Doubts resolved in favor of Constitutionality:

In determining the question of the constitutionality of a statute, all doubts must be resolved in favor of its constitutionality, and, if possible, the constitutional provision in question must be read into and become a part of the statute, and, unless the Constitution and statute are squarely in conflict, the statute must stand.

2. EMINENT DOMAIN. Statute providing for condemnation of land for highway purposes held not unconstitutional.

Sections 4400 to 4402, inclusive, Code of 1906 (sections 7080 to 7082 inclusive, Hemingway's Code), providing for the laying out, altering, or changing of public highways, and condemning rights of way therefor, and providing compensation for the owners of such rights of way, are not violative of section 17 of the Constitution, which prohibits taking or damaging property for public use, except upon due compensation being first made to the owner.

3. EMINENT DOMAIN. Constitutional requirement of just compensation satisfied, when public faith and credit are pledged.

The taking of property for public use by a state or one of its municipalities need not be accompanied by or preceded by payment, but the requirement of just compensation is satisfied when the public faith and credit are pledged to a reasonably prompt ascertainment and payment and there is adequate provision for enforcing the pledge.

4. EMINENT DOMAIN. Statute held to authorize occupancy by county of land condemned for highway purposes in advance of actual payment.

Under sections 4400 to 4402, inclusive, Code of 1906 (sections 7080 to 7082, inclusive; Hemingway's Code), providing for laying out, altering, or changing public highways, and the condemnation of rights of way therefor, and compensation to the owners of land condemned for such purposes, the county in condemning land under said statute, may occupy and use such rights of way in advance of actual payment therefor, where notice has been given and a fair opportunity afforded the landowner to propound his claim for compensation before such taking and occupation by the county as provided in said statute, and in so doing section 17 of the Constitution, requiring compensation in advance, is not violated.

5. HIGHWAYS. Taxpayer not entitled to injunction against construction of overhead passway at crossing.

Even though a county had no right under the law to make a contract for an overhead passway at a public highway and railroad crossing, still a landowner and taxpayer of the county has no right to enjoin the carrying out of such a project, where it is shown that the entire costs will be borne by the railroad company, whose track is crossed, and the federal and state highway departments, and the entire upkeep for the future will be borne by the state highway department.

HON. V. J. STRICKER, Chancellor.

APPEAL from chancery court of Hinds county, First District, HON. V. J. STRICKER, Chancellor.

Action by Joel F. Johnson and others against Hinds county and others. Decree for plaintiffs, and defendants appeal. Reversed and dismissed.

Reversed and dismissed.

Watkins, Watkins & Eager, Fulton Thompson, and R. H. & J. H. Thompson, for appellants.

The contract was executed after the board of supervisors had accurately followed the provisions of the statutes and after notice duly given to the complainant, now appellee Johnson; he being the only person whose land was in any way affected by the proceeding and a very small part of it was to be taken. The railway company owned its track and the land under it and its right-of-way; the right-of-way extended fifty feet on either side of the center of its track, and no part of the bridge proper has been, or is to be constructed on Johnson's land. However, the Western approach to the bridge is in small part located on a trifling strip off the Southern boundary of Johnson's land, aggregating, as shown by the evidence, less than one acre. Johnson appeared before the board of supervisors, in person or by attorney, in response to the notice served on him, and appared at all of its meetings. He did not object to the jurisdiction of the board. He allowed the contractors to enter upon the work and expend much labor and money on the erection of the bridge and its approaches and did not institute this suit for many months after construction began.

Sections 7080, 7081, 7082 and 7084, Hemingway's Code have been in force, enforced and judicially respected at least since March 2, 1833, more than ninety years. The public, the courts and the legislative department of the state government have treated the statutes as valid under the Constitutions of 1832, 1869, and 1890.

Bearing in mind that the sections of our state Constitutions of 1832, 1869 and 1890, pertinent to this case, are in substantially the same words, we must also remember that these statutes have been enacted or reenacted not less than five separate times and have been enforced hundred of times, in all probability as many as one thousand times; and have been respected and enforced a considerable number of times by the trial courts, and by this court.

This court has heretofore passed upon and enforced the statutes under consideration in a large number of cases. It is true that the constitutionality of the statutes has not been raised in some of them, but the assumption of their constitutionality of litigants, attorneys and the court evidences the long continued and practically universal acquiescence in their validity. We cite eleven separate decisions of this court recognizing the constitutionality of the statutes. They are: Kinnare v. Gregory, 55 Miss. 612; Sullivan v. LaFayette County, 58 Miss. 790; Cage v. Trager, 60 Miss. 563; Sullivan v. LaFayette County, 61 Miss. 271; Copiah County v. Lusk, 77 Miss. 136; Rainey v. Hinds County, 78 Miss. 308; Craft v. DeSoto County, 79 Miss. 618; State v. Morgan, 79 Miss. 659; Illinois, etc., R. Co. v. Swalm, 83 Miss. 631; Illinois, etc., R. Co. v. State, 94 Miss. 759; Humphreys County v. Washington County, 128 Miss. 132.

The supreme court of the United States in the case of Joslin v. Providence, 262 U.S. 668, uses the following language: "We next consider the contention that the act permits the taking of property and it grants the power to lease, sell or dispose of it without an offer to pay compensation therefor or a determination of it in advance. It has long been settled that the taking of property for public use by a state or one of its municipalities need not be accompanied by or preceded by payment, but that the requirement of just compensation is satisfied when the public faith and credit are pledged to a reasonable prompt ascertainment and payment, and there is adequate provision for enforcing the pledge. Sweet v. Rechel, 159 U.S. 380, 400, 404, 407; Williams v. Parker, 188 U.S. 491, 502-53; Crozier v. Krupp, 224 U.S. 290, 306; Bragg v. Weaver, 251 U.S. 57, 62; Hays v. Port of Seattle, 251 U.S. 333, 338."

In this case the court held that the statutes did not violate the Fourteenth Amendment to the Constitution of the United States, but it is especially significant that in one of the cases cited, Bragg v. Weaver, 251 U.S. 57, was before the court on writ of error from the supreme court of the state of Virginia, wherein the Virginia court held that the taking was not in violation of the Virginia Constitution, section 58 of which is almost identical in language with the Constitution of the state of Mississippi.

Cage v. Trager, 60 Miss. 563, was a case wherein the constitutionality of the Act of 1882, Laws of Mississippi 1882, page 273, was assailed as being unconstitutional. The act provided for the condemnation of lands for the purpose of establishing landings on the banks of navigable rivers. The board of supervisors of Wilkinson county had proceeded to condemn the lands of Cage, et al., the appellants in the case, and had taken possession of their real estate for that purpose. CHALMERS, J., delivering the opinion of this court, having shown the act was assailed as being unconstitutional because the party condemning the land had not instituted and carried through proceedings for the ascertainment of the damages to be paid to the owners of the property taken, but devolved that duty or privilege on the owners, said the court was satisfied that there was no sound constitutional objection to the provision of the Code of 1871 on the subject or to the special Act of 1882 involved in that case.

The decree appealed from should be reversed, even if the court shall adjudge that Johnson must be paid before the county can acquire a right to his property involved in this suit. The utmost relief that could have been awarded Johnson, the law being as his attorneys contend, without error would have been a requirement that the board of supervisors should institute an eminent domain proceeding in order that Johnson might be brought before the eminent domain court and have a judgment awarded fixing the damages to which he may be entitled. Upon the payment of the judgment the county would obtain the land claimed by Johnson to have been taken from him.

There is no disposition on the part of Hinds county, or any other defendant to this suit, to deny Johnson just compensation. The court has decided in the case of Copiah County v. Lusk, 83 Miss., that the facts shown in the suit at bar give Johnson a right to bring a suit for the recovery of his damages. The board of supervisors all along has been entirely willing to have appellee's damages assessed and will cheerfully pay the same when the amount is ascertained...