Hoxie v. Gibson
Decision Date | 23 October 1922 |
Docket Number | 212 |
Citation | 245 S.W. 332,155 Ark. 338 |
Parties | HOXIE v. GIBSON |
Court | Arkansas Supreme Court |
Appeal from Lawrence Circuit Court, Eastern District; Dene H Coleman, Judge; affirmed.
Judgment affirmed.
Ponder & Gibson, for appellant.
The act was constitutional, and provided a method for the condemnation of the street and property, and the demurrer should have been overruled.
Where the Legislature has erected a tribunal for the purpose of ascertaining and declaring the result of an election, its decision is conclusive, and cannot be reviewed by the courts. 96 Ark. 411; 32 Ark. 553; 78 Ark. 432.
A jury trial is not necessary to constitute due process of law in every case. 32 Ark. 553; 40 Ark. 290. Jury trials are not necessary in summary proceedings, unless required by statute. 4 B. L. Com. 280; 62 Ala. 596.
The constitutional guaranty of trial by jury in condemnation proceedings relates only to private corporations. Art. 12 sec. 9, Const. 1874; 124 Ark. 61; 132 Ark. 412; 134 Ark. 121; Elliott on Roads & Highways, vol. 1, sec. 224; 134 Ark. 293; 124 Ark. 569; 75 Ark. 530.
Condemnation proceedings are not common-law actions, and when they meet the constitutional requirements, they are valid. I Lewis on Eminent Domain, secs. 311-314; 64 Ark. 562; 79 Ark. 159; Tiedeman, Lim. Police Powers, sec. 374; 69 Ark. 642.
W A. Cunningham and Cohn, Clayton & Cohn, for appellee.
The act is unconstitutional because it provides for trial of a judicial question in a way not authorized by the Constitution. Sec. 22 of the Declaration of Rights, Const. 1874; 134 Ark. 121; 49 Ark. 492; 72 Ark. 357; 148 Ark. 271; 76 Ark. 184; 134 Ark. 292.
This action was instituted by appellant against the appellee to condemn a strip or parcel of land in the incorporated town of Hoxie, Arkansas, for a street. This court, in Hoxie v. Gibson, 150 Ark. 432, 234 S.W. 490, decided that the land in controversy was owned by Anna B. Gibson, the appellee herein. The present action was instituted under act No. 397 of the Special Acts of 1921, p. 826. Section 1 authorizes the town of Hoxie to sue for the land in controversy. The act further provides:
The appellant set up the act and prayed that the land described in its complaint be condemned according to its provisions. The appellee entered a special demurrer to the complaint on, among other, the following grounds:
The trial court sustained the demurrer. Appellant stood on its demurrer, and the court rendered a judgment dismissing the complaint, and for costs, from which is this appeal.
In Hoxie v. Gibson, supra, speaking of the act under review, we said: "But appellant's authority under this statute to proceed to condemnation of the property is still unimpaired, notwithstanding the decree adjudicating and quieting appellee's title to the property, for, as before stated, the only purpose of this act is to prescribe the method of condemnation." The appellant says that this court "in this decision practically held that this act was legal and binding, and that it was a method of condemnation which could be followed and pursued by appellant." But not so. The issue before the chancery court in Hoxie v. Gibson, supra, was only as to the title to the property, and we affirmed the decree of the chancery court quieting the title in Mrs. Gibson. No issue as to the right of condemnation of the land in controversy under special act 397, supra, was raised in that case. Therefore, the language from the decision quoted supra was not intended, and can not fairly be construed, to hold that special act 397 was a valid act. If the language were susceptible of that interpretation, it would be pure obiter, and not binding on the court in this lawsuit. The issue, and the only issue in the instant case, is whether or not special act 397, supra, is a valid act.
In Cribbs v. Benedict, 64 Ark. 555, 44 S.W. 707, we said: And in Board of Directors St. Francis Levee District v. Redditt, 79 Ark. 154, 95 S.W. 482, we said: "Condemnation proceedings are not common- law actions, and when they meet the constitutional requirements and provide for due notice to the parties affected, they are valid, although they may not provide for a trial in course of the common law."
Learned counsel for appellant quote and rely upon the doctrine of the above cases to support their contention that it was within the power of the Legislature in condemnation proceedings to constitute a board of appraisers and to delegate to such board the absolute authority to determine the value of the land condemned, after notifying the parties and giving them the right to adduce testimony and be heard by the board on the issue of compensation to be awarded the landowners for their property. Under our Constitution "the right of property is before and higher than any constitutional sanction, and private property shall not be taken, appropriated, or damaged for public use without just compensation." Now, the right of the State and its subordinate governmental agencies, under the power of eminent domain, to condemn and take private property for public use is beyond question. In addition to above, see Sloan v. Lawrence County, 134 Ark. 121 at 121-128, 203 S.W. 260 et seq., and cases there cited; Dickerson v. Tri-County Drainage Dist., 138 Ark. 471, 212 S.W. 334.
The Legislature undoubtedly has the power to determine whether the necessity exists for such condemnation, but it has no power to create a tribunal and vest it with absolute authority to condemn private property without just compensation, or upon such compensation as such tribunal may determine, and make the findings of that tribunal or board conclusive upon the issue of compensation. The jurisdiction to determine the necessity for condemnation is one thing. That is purely a legislative function, which the Legislature may exercise untrammeled. The jurisdiction to determine the value of the land condemned and the compensation to be rendered the owner therefor, is another thing. The latter power is purely a judicial function which none but the courts can exercise. If the Legislature designates a tribunal other than a common-law jury to ascertain the value of the land and the amount of compensation to be paid the owner therefor, then the finding of such tribunal on the issues of fact must be subject to review by the courts. The right of appeal from such finding through to the court of last resort can not be taken away. Art. VII, sec. 4, Const. Ark. If this procedure is not followed, then the landowner is deprived of his property without judicial inquiry, i. e., without the due process guaranteed by our Constitution and the Constitution of the United States. Article II, secs. 21 and 22, Constitution of Arkansas; articles 5 and 14, Const. of U. S.; Matter of City of Buffalo, 139 N.Y. 422, 430-31, 34 N.E. 1103.
Sec. 1 article 7, of our Constitution provides that the judicial power of the State shall be vested in certain courts designated therein. In Monongahela Navigation Co. v. United States, 148 U.S. 312, 37 L.Ed. 463, 13 S.Ct. 622, Mr. Justice BREWER, speaking for the court, says: "The Legislature may determine...
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Newton v. American Security Company
... ... property. The measure of compensation is purely judicial here ... and not a legislative question.' Hoxie v ... Gibson, 155 Ark. 338, 245 S.W. 332. See, also, ... North Laramie Land Co. v. Hoffman, 268 U.S ... 276, 45 S.Ct. 491, 69 L.Ed. 953." ... ...
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Newton v. American Sec. Co.
...to just compensation for his property. The measure of compensation is purely a judicial and not a legislative question.' Hoxie v. Gibson, 155 Ark. 338 . See also North Laramie Land Co. v. Hoffman, 268 U.S. 276 [45 S.Ct. 491, 69 L.Ed. Appellee has the choice of two alternatives in view of th......