Jacksonville, T. & K.w. Ry. Co. v. Adams

• Decision Date: 09 June 1892
• Citation: 11 So. 169,29 Fla. 260
• Parties: JACKSONVILLE, T. & K. W. RY. CO. v. ADAMS et al.
• Court: Florida Supreme Court

11 So. 169

29 Fla. 260

JACKSONVILLE, T. & K. W. RY. CO. v. ADAMS et al.

Florida Supreme Court

June 9, 1892

Appeal from circuit court, Volusia county; JOHN D. BROOME, Judge.

Condemnation proceedings by the Jacksonville, Tampa & Key West Railway Company against Charles S. Adams, administrator of John S Adams, deceased, and others. From an order sustaining exceptions and protests to the confirmation of the report of the jury, plaintiff appeals. On motion to dismiss the appeal. Motion denied.

Syllabus by the Court

SYLLABUS

1. Proceedings for the condemnation of land for railroad and canal purposes under the act of February 12, 1885, c. 3595 as amended by that of June 8, 1887, c. 3712, are in the circuit court, in the exercise of its judicial powers as a court of chancery, and not before the circuit judge as a commissioner, or special tribunal, or as distinct from the court.

2. An appeal lies to the supreme court from an order of the circuit court dismissing a proceeding instituted under the act as amended in 1887 for the condemnation of land for railroad purposes, although this statute is silent on the subject of an appeal.

COUNSEL A. W. Cockrell & Son, for the motion.

J. R. Parrott, Hamlin & Stewart, and T. M. Day opposed.

OPINION

The other facts fully appear in the following statement by RANEY C.J.:

The appellant instituted proceedings under the act of February 12, 1885, c. 3595, as amended by the act of June 8, 1887, c. 3712, (page 31, Acts 1885, and page 82, Acts 1887,) authorizing railroad and canal companies to condemn lands of private individuals for their use.

The fourth section of the amendatory act provides, inter alia 'The jury shall view the land described in the petition, hear the allegations of the parties, and shall appraise, ascertain, and determine the value of each tract or parcel of land proposed to be taken with the value of the improvements thereon and each separate estate therein, and the damage that will be sustained by the owner or owners by reason of the taking thereof, and they shall fix the amount of the compensation to be made to each of the owners thereof. A majority of the jury may determine all matters before them.' The section then provides that the said jury shall, within 10 days after viewing the land mentioned in the petition, file in the office of the circuit court of the county in which the land lies, which is the same office the petition for condemnation is filed in, a report of their proceedings concerning the land, setting forth their verdict as to the amount of compensation awarded by them to the owner of each tract or parcel.

The fifth section enacts that, when such report has been filed, either or any party to the proceeding may, within 10 days after the date of the filing of such report, file with the clerk of such court his or their written protest against the confirmation of such report, setting forth the reason why the same should not be confirmed; and it shall be the duty of the judge to hear the parties and their witnesses, and determine the matter at as early a day as practicable; and, should the protesting party on such hearing show good cause why such report should not be confirmed, the judge shall refuse to confirm the same, and he shall order and cause to be taken such further proceedings in the matter, not inconsistent with this act. Should, however, the judge, on such hearing, determine that no sufficient cause has been shown why the report should not be confirmed, or should not protest be filed as above provided, the judge shall make an order confirming the report, and, on payment to the owner or owners of the land by the railroad or canal company of the amount awarded to him or them by the jury for the use of such land, or on payment thereof to the clerk of such court, subject to the order of the owner or owners, the order confirming the verdict of such jury 'shall be entered of record on the chancery order book of said court, and it shall thereupon become a judgment and decree of said court,' and the right to use such land shall thereupon vest in such corporation, its successors and assigns, and they shall have the right, etc.

RANEY, C.J., (after stating the facts.)

The condemnation proceedings in which the appeal now before us was entered are set forth in the case of Railway Co. v. Adams, 28 Fla. 631, 10 South. Rep. 465. As there shown, objections were filed to the report of the jury, and on August 10, 1891, the circuit judge made an order sustaining the exceptions and protests, and refusing a confirmation of the report, and also refusing 'to order further proceedings in this matter, on the ground of the unconstitutionality of the law authorizing the same,' and dismissed the case.

The contention of the appellees is in support of their motion to dismiss the appeal, and is that there is no appeal to this court from the above order.

Their counsel argue that there is no authority for the entry of the order appealed from in the chancery order book as the judgment or decree of the court; that it is only in case the verdict of the jury is confirmed that an entry is authorized. It appears from the reading of the statute, as will be found in the preceding statement, that, if the protesting party show good cause why the report should not be confirmed, the judge shall refuse to confirm it, and shall order and cause to be taken such further proceedings in the matter, not inconsistent with the act, as, in his judgment, right and justice may demand. If it can for a moment be imagined that it was the purpose of the legislature that an order refusing to confirm the report, and directing further proceedings, should not be entered on the record book of the court, then such entry is not essential to the validity or fullest effect of such order. We, however, do not find any ground for concluding that such was the legislative purpose in enacting that a confirming order shall, on payment to the owner of the land, or to the clerk subject to the order of such owner of the amount awarded, be entered of record on the chancery order book of the court, and shall thereupon become a judgment and decree of said court, with the consequent rights in the railroad or canal company indicated by the statute. Although this feature of the statute does indicate a positive intent that the order of confirmation not be recorded or become effectual until payment has been made in the manner indicated, the reason of the provision is that the judicial condemnation of the land shall not be effectual or operative until the payment has been made. The end thus sought and attained is not, nor is the reason dictating it, any ground for inferring that the legislature intended that an order in the cause from which no similar results could flow shall not be recorded, but (if it be that counsel mean to concede that the statute authorizes anything but a verbal refusal of confirmation) should be left in the much more precarious and altogether unusual condition of being merely filed. In our judgment, the only intention that can be imputed to the legislature at all reasonably is that orders of this character shall be promptly recorded in the chancery order book. Clerks who do not thus record them will be essentially remiss. These observations are equally applicable to the order for summoning the jury, referred to hereafter.

It is further argued that the function given by this act to hear and determine is vested in the judge, and not in the court. We do not think so. The twenty-ninth section of the sixteenth article of the constitution provides that compensation in these condemnation cases 'shall be ascertained by a jury of twelve men in a court of competent jurisdiction, as shall be prescribed by law.' The first section of the fifth, or judicial, article vests the judicial power of the state in the supreme, circuit, criminal, and county courts, and in county judges and justices of the peace, and the thirty-fourth section authorizes the legislature to establish in incorporated towns and cities courts for the punishment of offenses against municipal ordinances; and the thirty-fifth section ordains 'that no courts other than those herein specified shall be established in this state.' The eleventh section of the same article gives the circuit courts 'exclusive original jurisdiction in all cases in equity also in all cases at law not cognizable by inferior courts, and all cases involving the legality of any tax, assessment, or toll, of the action of...