Lewis v. Du Pont

• Decision Date: 20 November 1941
• Citation: 22 A.2d 832,41 Del. 347
• Court: Delaware Superior Court
• Parties: THOMAS W. LEWIS and ZORA C. LEWIS v. FRANCIS V. DU PONT, ET AL., constituting the State Highway Department of the State of Delaware

22 A.2d 832

41 Del. 347

THOMAS W. LEWIS and ZORA C. LEWIS v. FRANCIS V. DU PONT, ET AL., constituting the State Highway Department of the State of Delaware

Superior Court of Delaware, New Castle County

November 20, 1941

Superior Court for New Castle County, September Term, 1941.

Mandamus motion to strike respondent's answer.

The motion to strike is denied.

Ivan Culbertson for petitioners.

James R. Morford, Attorney-General, and P. Warren Green for respondent.

LAYTON C. J., RODNEY and TERRY, J. J., sitting.

OPINION

LAYTON, Chief Justice:

This cause is before the Court on a motion by the petitioners in a mandamus proceeding to strike the respondent's answer as being insufficient to state a defense.

The petitioners are owners of land which was necessary to be taken by the State for the construction of a high level bridge over the Delaware and Chesapeake Ship Canal. The owners and the State Highway Department could not reach an agreement, and the Department instituted condemnation proceedings under Section 5730 of the Revised Code.

Briefly and omitting details not pertinent here, the statute requires the Department, upon five days notice in writing to the owner of the property sought to be condemned, to apply to the Associate Judge of the State resident in the County where the property lies for the appointment of a commission of five freeholders to view the property and assess the damages resulting from the taking of the property. The freeholders, in turn, are required to give to the owner and the Department ten days' notice in writing of the time of their meeting to view the premises, or in specific cases, to make publication of the notice. They are also required to keep a record of their findings and award and to return them to the Prothonotary of the County, and to certify them to the owner and to the Department. If the Department or any party in interest is dissatisfied with the findings and award, it or he may, within fifteen days, sue out a writ of ad quod damnum "requiring the Sheriff of said County, in the usual form, to inquire of twelve impartial men of his bailiwick of the damages which will be sustained by the taking of the property," and their report is final. The Department may then, within two months, pay or tender the amount of the award to the owner, and upon his refusal to accept, may deposit the amount in the Farmers' Bank of the particular County to his credit.

The Department instituted condemnation proceedings. The Commission of Freeholders made an award in the sum of $ 6,500. The Department, being dissatisfied, sued out a writ of ad quod damnum, and the Sheriff's jury reduced the amount of the award to the sum of $ 3600. This amount the owners refused to accept, and it was deposited to their credit in the proper bank.

The owners of the land condemned sought by mandamus to compel the Department to pay to them the sum of $ 6500, the amount of the freeholders' award. They contend that that part of the statute providing for the suing out of a writ of ad quod damnum is violative of the due process clause of the Fourteenth Amendment to the Federal Constitution, and of Section 7, Article 1 of the State Constitution forbidding the deprivation of life, liberty or property unless by the law of the land, for the reason that notice to the opposing party is neither required nor provided by the statute, and no opportunity is afforded the owners to be heard on the question of damages before final determination; and the further contention is made that these statutory provisions, while unconstitutional, are yet separable provisions, leaving in force and effect the provisions with respect to awards of damages made by freeholders; wherefore, it is asserted, the petitioners have a clear legal right to have paid to them the freeholders' award in the sum of $ 6500.

The answer of the Department recited the proceedings taken. It set out the issuance of the writ of ad quod damnum, and the return of the Sheriff thereon, the issuance of an alias writ and personal service thereof on the petitioners; the language of the command of the writs which was, "We Therefore, Command, that giving ten days' notice to the said Thomas W. Lewis and Zora C. Lewis, his wife, You inquire &c."; that after the Sheriff had notified counsel for the owners and for the Department of the day fixed for the calling of the jury, the petitioners' counsel, after consultation with opposing counsel, requested and obtained a postponement; that at the convention of the jury the petitioners were present and represented by counsel who made objection that the statute was unconstitutional, as well as objection to the form of the writ; and that thereafter the teste of the process was amended by the Court, on motion of the Department's counsel, counsel for the petitioners being present and consenting.

Passing by the question raised by the Department that the petitioners in a mandamus proceeding cannot set up the unconstitutionality of the statute under which the respondents have acted, for the reason that, in such circumstances, a clear legal right necessarily does not appear; and passing also what is termed an estoppel resulting from the petitioners' presence at and participation in the ad quod damnum proceedings, the substantial question of merit will be considered.

In Wilson v. Baltimore & P. R. Co., 5 Del. Ch. 524, Chancellor Saulsbury held that the failure of the company's charter authorizing the taking of property for a railroad to provide for notice to the owner of the assessment of damages for the land taken did not render the act unconstitutional. The...