Jennings v. Sawyer

• Decision Date: 18 January 1937
• Docket Number: 14416.
• Citation: 189 S.E. 746,182 S.C. 427
• Parties: JENNINGS et al. v. SAWYER et al.
• Court: South Carolina Supreme Court

189 S.E. 746

182 S.C. 427

JENNINGS et al. v. SAWYER et al.

No. 14416.

Supreme Court of South Carolina

January 18, 1937

Appeal from Common Pleas Circuit Court of Richland County; G. Duncan Bellinger, Judge.

Suit for injunction by John W. Jennings and others against Ben M Sawyer and others, as and constituting the South Carolina Highway Commission. From a decree dissolving a temporary restraining order and dismissing the complaint, plaintiffs appeal.

Affirmed.

The order of Judge Bellinger is as follows:

The State Highway Department, by virtue of statutory authority commenced proceedings to condemn a right of way over and through plaintiffs' lands for the relocation of United States highway No. 76, between Columbia and Newberry, at a point beginning west of the Broad river bridge near Columbia. Pursuant to a notice of condemnation served on the plaintiffs, a hearing was held on May 5, 1936 at Columbia, by a duly constituted Condemnation Board, at which the plaintiffs and their attorneys were present. Testimony was taken as to the amount of land involved and the damages resulting thereto. Thereafter, on or about the 15th day of May, 1936, and before the board assessed damages, this action was commenced by plaintiffs to enjoin the proceedings and to restrain the defendants, the Chief Highway Commissioner and members of the State Highway Commission, from interfering in any manner with the possession and ownership of the said lands. Upon application of the plaintiffs, a temporary order of injunction was granted against the defendants, and a rule to show cause issued at the same time. The defendants filed return and answer to the complaint and the matter came on to be heard before me on Friday, July 3, 1936.

At the hearing plaintiffs proposed certain amendments to their complaint, which were allowed without objection. They also moved to make the Return and Answer more definite and certain in several particulars, to wit:

"1. To make definite and certain what, of the functions of the Highway Commission alleged by the plaintiffs in paragraph 2 of their Complaint the defendants admit as 'correctly stated.'

2. What of the functions of the Highway Commission alleged by the plaintiffs in paragraph 2 of their Complaint the defendants deny.

3. To make definite and certain to what statutes the Court is referred by the defendants with respect to the duties and authority of the Highway Commission.

4. To make definite and certain what allegation, allegations, part and parts of paragraphs 13, 14, 15 and 16 of the Complaint the defendants admit 'as correctly stated the law.'

5. To make definite and certain what allegation, allegations, part or parts of paragraphs 13, 14, 15, and 16, the defendants deny.

6. To make definite and certain what allegation, allegations, part and parts, of paragraph 20 of the plaintiffs' Complaint the defendant admits 'as correctly states' the law.

7. To make definite and certain what allegation, allegations, part and parts of paragraph 20 of the Complaint the defendants deny.

8. To make definite and certain what allegation, allegations, part and parts of paragraph 22 the defendants admit 'as correctly allege the rights of the plaintiffs in reference to the obligation of contracts under the Constitution of the United States and the Constitution of South Carolina.'

9. To make definite and certain what 'remaining allegations' of paragraph 22 of plaintiffs' Complaint the defendants deny."

The allegations of the return and answer questioned deny certain conclusions of law except as correctly stated, and refer to the statutes as to the duties and functions of the defendants. As no matters of fact are involved in the questions raised, and the allegations as to the conclusions of law are sufficiently definite to enable plaintiffs to determine the legal position taken by defendants, the motion is refused.

The plaintiffs further moved to strike from the return and answer the affidavit of J. S. Williamson. This motion is also refused, as the said affidavit supports certain allegations of the return and answer, which set forth the reasons for relocating the highway through plaintiffs' lands.

The plaintiffs also demurred to the sixth, eighteenth, and nineteenth paragraphs of the defendant's answer. The sixth paragraph of the answer set up the defense of estoppel. I am convinced that the mere participation of plaintiffs in the condemnation hearing, does not constitute estoppel so as to prevent plaintiffs from bringing this action, and I think that ground of the demurrer should be sustained. The eighteenth paragraph of the return and answer sets forth the reasons why the highway should be relocated, and is intended as a defense to the allegations in plaintiffs' complaint that the State Highway Department is attempting to act in a capricious manner and in abuse of its discretion. This is a proper defense and that ground of the demurrer is overruled. The nineteenth paragraph of the return and answer alleges that plaintiffs have a complete and adequate remedy at law and are, therefore, not entitled to equitable relief. The demurrer is overruled as to this paragraph, the reasons therefor will be stated further on in this order.

The plaintiffs assailed the constitutionality of sections 5813, 5822, 5921, 5923, and 5924 of volume 3 of the Code of 1932, upon the grounds that said sections are in violation of section 14 of article 1 and section 17 of article 1 of the Constitution of South Carolina, in that the said statutes attempt to bestow upon the Highway Commission both administrative and judicial function in the condemnation of private property for State purposes. It is to be observed that section 5822 has no bearing on this case, as that section has reference only to the duties of road overseers in connection with property in their care. The other sections, sections 5813, 5921, 5922, 5923, and 5924, provide the manner and the procedure to be followed in acquiring rights of way by condemnation for state highways.

Under these statutes the Governor is authorized to appoint a list of citizens of the state, who shall be eligible to serve on condemnation boards, for the purpose of condemning property required by the State Highway Department for use in the construction and maintenance of state highways; and the members of the State Highway Commission may also act. From this list of eligibles the State Highway Commission is authorized to designate three or more individuals to act as a board of condemnation, who shall follow the procedure in condemning property for rights of way of state highways, etc., as prescribed in section 5813 for condemning rights of way for county highways. Under this section, notice of condemnation is served upon the landowner, or his legal representative, to appear at some designated place and date for a hearing as to the amount of land taken and the damage thereto. After which hearing, the Condemnation Board makes an award as to the damages, which is served upon the landowner, or his representative, who is thereupon allowed ten days in which to appeal to the court of common pleas to have the damages assessed by a jury. The Condemnation Board is merely a fact-finding body which ascertains and passes upon the rights of the landowner. It is in no sense a court with judicial functions in the commonly accepted meaning of the term. Hutchison v. York County, 86 S.C. 396, 68 S.E. 577; Gilmer v. Hunnicutt, 57 S.C. 166, 35 S.E. 521, 523; Riley v. Charleston Union Station Company, 71 S.C. 457, 51 S.E. 485, 110 Am.St.Rep. 579. In the case of Hutchison v. York County, supra, the court said: "Furthermore, it is to be noted that the statutory provisions in question, even if they could be considered as making the board judges in any sense, certainly do not constitute the board the final judges of the matter in controversy, but merely directs that the members thereof shall ascertain the amount of compensation to be paid or offered by the county for the use of such land as a public highway. In effect, it is provided that when the amount of the just compensation to be paid by the county is ascertained as therein required, that amount shall be tendered by the county board of commissioners to the owner of the land, and that, unless the same is rejected by such owner by written notice given within ten days thereafter, such amount shall be deemed as accepted as the just compensation to which the owner is entitled. It is evident from the provisions of the statute that the board of county commissioners do not act in a judicial capacity in making this assessment any more than they act judicially in passing upon any other claim against the county." (Italics added.)

This question is, therefore, without merit.

Plaintiffs contend that there is no provision in the Constitution of South Carolina, whereby private property may be condemned by the state or any of its departments or agents, but that the only authority in the Constitution for condemnation of private property is contained in section 20 of article 9 and section 17 of article 1, which authorizes condemnation by corporations only. This position is untenable. Hutchison v. York County, supra; Gilmer v. Hunnicutt, supra; Paris Mountain Water Co. v. City of Greenville, 110 S.C. 36, 96 S.E. 545, 551.

In discussing this particular question, the court, in the case of Paris Mountain Water Company v. City of Greenville, supra, had this to say: "The primary right to acquire rests in eminent domain, and that power resides in the state of right and by necessity; the Constitution did not create it, but has only affirmed it (article 14), and limited its exercise (article 1, § 17; article 9, § 20). The exercise of the right resting in the Legislature, that...