Iowa Development Co. v. Iowa State Highway Commission

• Decision Date: 11 June 1963
• Docket Number: No. 50989,50989
• Citation: 255 Iowa 292,122 N.W.2d 323
• Parties: IOWA DEVELOPMENY COMPANY, Appellee, v. IOWA STATE HIGHWAY COMMISSION, Appellant. Emma C. MURPHY, Appellee, v. IOWA STATE HIGHWAY COMMISSION, Appellant.
• Court: Iowa Supreme Court

Page 323

122 N.W.2d 323

255 Iowa 292

IOWA DEVELOPMENY COMPANY, Appellee, v. IOWA STATE HIGHWAY COMMISSION, Appellant.

Emma C. MURPHY, Appellee, v. IOWA STATE HIGHWAY COMMISSION, Appellant.

No. 50989.

Supreme Court of Iowa.

June 11, 1963.

Evan Hultman, Atty. Gen., C. J. Lyman, Sp. Asst. Atty. Gen., Donald L. Beving and Keith E. McWilliams, Des Moines, for appellant.

Duncan, Jones, Hughes, Riley & Davis, Des Moines, for appellee Iowa Development Co.

Steward, Crouch & Hopkins, Des Moines, for appellee Emma C. Murphy.

THOMPSON, Justice.

This is the second appeal by the defendant, hereinafter known as the commission, from awards made by the trial court in two cases consolidated for trial. Iowa Development Company v. Iowa State Highway Commission, and Murphy v. Iowa State Highway Commission, 252 Iowa 978, 108 N.W.2d 487. Each trial was to the court sitting as the trier of the law and the facts and without a jury. The background facts are fully stated in the opinion on the first appeal, and will not be repeated here. Upon the first appeal we reversed because of the admission of incompetent evidence.

No jury demand was made before the first trial. But when the case was remanded, the defendant commission filed a demand for a trial by jury, which was denied. The case was first tried by Judge Dring D. Needham; the second time by Judge Ralph R. Randall, with whose orders and awards we are concerned on this appeal.

I. The defendants first assigned error is based upon the refusal of the trial court to grant its application for a jury trial upon the remand. No application having been made before the first trial, the application was not timely. Rubin Bros. Butter & Egg Company v. Larson, 247 Iowa 541, 542-545 inclusive, 74 N.W.2d 574, 575, 576. The failure here to make timely demand before the first trial distinguishes the Rubin case from Nedrow v. Michigan-Wisconsin Pipe Line Co., 246 Iowa 1075, 70 N.W.2d 843, where such a demand had been made.

The defendant makes some contention that its application should have been granted under R.C.P. 177(d), 58 I.C.A. which provides that even when application is not timely made the court may in its discretion and for good cause shown order a jury trial. It is doubtful whether any real attempt was made here to show good cause. It is suggested that the defendant might be prejudiced by a trial to a different judge of the same court because he would be reluctant to differ with the holdings of his associate made on the first trial. We do not agree that such a consideration would unduly influence the decision of a competent and honorable judge, whose duty it was to try the case on the facts proven and the applicable law without regard to such extraneous circumstances as a previous decision which had been set aside because improper evidence was considered.

The trial court has discretion in granting or denying jury trials under R.C.P. (d), supra. Schloemer v. Uhlenhopp, 237 Iowa 279, 283, 284, 21 N.W.2d 457, 459. We find no abuse of discretion here.

II. However, the defendant strongly attacks the ruling denying a jury trial upon a third ground. It contends that under Article I, Section 18 of the constitution of the State of Iowa it was entitled to a jury trial as a matter of right without regard to R.C.P. 177. Its argument is that since section 18 was not repealed by the legislature--of course it could not have been--and is still in force, Rule 177 has no effect. Here the commission attempts to follow In re Estate of Hermence, 235 Iowa 745, 15 N.W.2d 905, which it argues rules the present situation. In the Hermence case, which was a will contest, we held that because section 11864 of the 1939 code, now section 633.19 of the code of 1962, I.C.A. had not been repealed by the legislature when the rules of civil procedure were adopted, but was still in effect and gave either party to a will contest the right to a jury trial, the statute governed and such right remained without regard to Rule 177.

So the commission contends section 18, supra, governs the present situation and that it has a constitutional right to a jury trial regardless of Rule 177. We set out Section 18 of Article I, so far as material: 'Private property shall not be taken for public use without just compensation first being made, or secured to be made to the owner thereof, as soon as the damages shall be assessed by a jury, who shall not take into consideration any advantages that may result to said owner on account of the improvement for which it is taken. * * *'

The difficulty with the defendant's position is that the section of the constitution upon which it relies does not give it the right it thinks it does. Its argument is based on a false premise. The quoted section is a guarantee of protection to the property owner whose land is taken; it is only a limitation upon the power of the state; and the commission is merely an arm of the state. In Liddick v. Council Bluffs, 232 Iowa 197, 215, 5 N.W.2d 361, 371, we said: 'Since the power of eminent domain is an inherent and inseparable attribute of sovereignty which existed prior to constitutions, the constitutional provisions are not grants of the power, but are limitations upon its exercise. * * *

'These provisions are for the protection of the individual against the excesses of the government with respect to his property * * *'.

United States v. Griffin, 14 F.2d 326, 327, D.C.W.D.Va., states the proposition thus: 'The simplest and best reason for saying that the Seventh Amendment (to the Constitution of the United States) does not preserve a right in the government to trials by jury is that there was not the slightest need for such intent, and that the obvious purpose was not to preserve such right, but was to preserve the right of the people as against the government.'

The position of the commission here is well described in Waddell v. Board of Directors, 190 Iowa 400, 406, 175 N.W. 65, 67: 'The defendant is a school corporation. It is a legislative creation. * * * It is an arm of the state, a part of its political organization. It is not a 'person' within the meaning of any bill of rights or constitutional limitation.'

We have no hesitancy in holding that the defendant is merely an agent of the state, and that Section 18, Article I, supra, was not intended for its protection and gives it no rights. It is a limitation upon its powers. This leaves the matter of the right to trial by jury, so far as the commission is concerned, to be governed by the statutes and rules of civil procedure set up for civil cases generally. Section 472.21, Code of 1962, I.C.A. is set out: 'The appeal shall be docketed in the name of the owner of the land, or of the party otherwise interested and appealing, as plaintiff, and in the name of the applicant for condemnation as defendant, and be tried as in an action by ordinary proceedings.' This seems to make it clear that appeals in condemnation cases are to be tried as are other civil cases. The right to trial by jury exists, if it is timely demanded; but there is no constitutional protection available to the commission if it fails to make such demand. It is then in the position of any other litigant.

III. The defendant assigns error upon reception of the testimony of B. R. Harris, president of the plaintiff company as to the value of the corporation property taken, 'when it was not shown that he has such knowledge of value as qualifies him in fact'. The plaintiff company is a subsidiary of the Chicago Great Western Railway Company. Mr. Harris testified that the was in charge of the industrial development departments of the railway company. He testified to his familiarity with the tract involved in the present condemnation, including the investigation preliminary to its purchase and the purchase itself. He described the property and its utility and availability for industrial purposes. It is accessible to railroad trackage. He has had experience in the development of other industrial districts along the railway lines, and had knowledge of sales of industrial property in Des Moines.

It is sufficient to say here that we found Mr. Harris a well qualified value witness in the first appeal; Iowa Development Co. v. Iowa State Highway Commission, supra, loc. cit. 252 Iowa 995, 108 N.W.2d 497; that Mr. Harris was not merely an officer of the plaintiff corporation but was its managing director and familiar with the property in question, as to which see In re Appeal of Dubuque-Wisconsin Bridge Company, 237 Iowa 1314, 1320, 25 N.W.2d 327, 330; and that he showed considerable knowledge of the entire situation from the standpoint of valuations. The rule as to competency of value...