Parker v. State Highway Commission

• Decision Date: 27 May 1935
• Docket Number: 31771
• Citation: 162 So. 162,173 Miss. 213
• Court: Mississippi Supreme Court
• Parties: PARKER v. STATE HIGHWAY COMMISSION

162 So. 162

173 Miss. 213

PARKER v. STATE HIGHWAY COMMISSION

No. 31771

Supreme Court of Mississippi

May 27, 1935

Division A

1. EMINENT DOMAIN.

Injury to abutting property by change of grade of highway by municipality or any other person, natural or artificial, held within constitutional provision that private property shall not be "damaged" for public use without due compensation (Const. 1890, section 17).

2. EMINENT DOMAIN.

Statutes held to impliedly authorize payment by state highway commission for damage to private property incurred through public use, as by change in grade of highway, although no land is actually appropriated (Code 1930, sections 1480 et seq., 1491, 4998, 5006, subds. (b), (c); Const. 1890, section 17).

3. CONSTITUTIONAL LAW. Eminent domain.

Constitutional provision against taking or damaging private property for public use without due compensation held mandatory and self-executing, so as to entitle owner of property damaged for public use to remedy at common law, in absence of statute providing redress (Code 1930, sections 1480 et seq., 1491 4998, 5006, subds. (b), (c); Const. 1890, section 17).

HON. W J. PACK, Judge.

APPEAL from the circuit court of Jones county HON. W. J. PACK Judge.

Action by L. L. Parker against the state Highway Commission and others. From a judgment dismissing the action as to the state Highway Commission, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

F. B. Collins, of Laurel, for appellant.

The declaration in this case alleges that the injurious acts of the state highway commission complained of in the declaration were authorized by the provisions of chapter 122, Mississippi Code of 1930, and that the injurious acts complained of were done pursuant to the authority of chapter 122, Mississippi Code of 1930.

State Highway Commission v. Knight, 154 So. 263; Dick v. Atchafalaya Drainage & Levee District, 147 Miss. 783, 113 So. 897.

Instead of the court holding that a public service corporation created in invitum is not liable for authorized acts done in an authorized manner, in each of the foregoing decisions, as was contended by counsel for appellee and held by the court below, it recognized the liability of such corporation for damages to private property when done by the authorized acts of its officers and agents, as perforce it should, by reason of the provisions of section 17 of our state Constitution.

It is our opinion that sections 4998 and 5006, Mississippi Code of 1930, fully authorizes the state highway commission to pay for such damages as here complained of.

The damages here complained of come within the plain provisions of section 17 of the Constitution.

10 R. C. L., pages 164 and 172, sec. 150; City of Chicago v. Taylor, 125 U.S. 166, 31 L.Ed. 640, 8 S.Ct. 820; Tishomingo Co. v. McConville, 139 Miss. 589, 104 So. 452; Vicksburg v. Herman, 72 Miss. 211, 16 So. 434; Jackson v. Williams, 92 Miss. 301, 46 So. 551; Robinson v. Vicksburg, 99 Miss. 439, 54 So. 858; Slaughter v. Meridian, 95 Miss. 251, 48 So. 5, 1040, 25 L.R.A. (N.S.) 1265; Berry v. Mendenhall, 104 Miss. 94, 61 So. 163; Funderluck v. Columbus, 117 Miss. 173, 78 So. 1; Rainey v. Hinds County, 78 Miss. 308, 28 So. 875.

Section 17 of the Constitution is self-executing, and it creates liability for damage within said provision without the aid of a statute.

6 R. C. L., sec. 55, pages 50 and 60; 12 C. J. 732, sec. 114; Swift & Co. v. Newport News, 105 Va. 108, 52 S.E. 821, 3 L.R.A. (N.S.) 404; Hickman v. City of Kansas, 120 Mo. 110, 25 S.W. 225, 41 Am. St. Rep. 684, 23 L.R.A. 658; Johnson v. Parkersburg, 16 W.Va. 402, 37 Am. Rep. 779; Crystal Park Co. v. Maston, 27 Colo.App. 74, 146 P. 566; Searle v. Lead, 10 S.D. 312, 73 N.W. 101, 39 L.R.A. 345; Willis v. Mabon, 48 Minn. 140, 50 N.W. 1110, 31 Am. St. Rep. 626, 16 L.R.A. 281; East St. Louis v. People, 124 Ill. 655, 17 N.E. 447; People v. McRoberts, 62 Ill. 38; Elgin v. Eaton, 83 Ill. 535, 25 Am. Rep. 412; People v. Bradley, 60 Ill. 390; Bass v. Nashville, Meigs 421, 33 Am. Dec. 154; Miller v. Marx, 55 Ala. 322; Woodward Iron Co. v. Cabaniss, 87 Ala. 328, 6 So. 300; Beecher v. Baldy, 7 Mich. 488; Washington Water Power Co. v. Waters, 186 F. 572; City of Vicksburg v. Herman, 16 So. 434; Union Savings Bank & Trust Co. v. City of Jackson, 122 Miss. 557, 84 So. 388; State v. Gulf, Mobile & Northern R. R. Co., 138 Miss. 70, 104 So. 689.

E. R. Holmes, Jr., Assistant Attorney-General, for appellee.

Section 17 of the Constitution of Mississippi of 1890 is not self-executing so as to entitle appellant to recover damages from the appellee, a governmental agency of the state.

State Highway Commission v. Knight, 170 Miss. 60, 154 So. 263.

A general test as to whether or not a constitutional provision is self-executing is, if it supplies a sufficient rule by which the right given may be enjoyed and protected, or by which the duty imposed may be enforced, it is self-executing, while on the other hand, a constitutional provision is not self-executing if it declares a principle without prescribing the rule by which it may be given the force of law.

Robinson v. Baldwin, 165 U.S. 275; State v. Harris, 74 Oregon, 573; Ladd & Tilton Bank v. Frawley, 98 Oregon, 241; Winchester v. Howard, 136 Cal. 432.

It is the contention of the appellee that section 17 of the Constitution of 1890 is not self-executing and before it can be effective there must be an act of the Legislature prescribing the manner for the recovery of damage to property injured or damaged on account of public use.

State ex rel. Flanagan v. S. Dakota Rural Credit Board et al., 45 S. Dak. 619; State ex rel. v. Burkhart, 44 S.D. 285, 183 N.W. 870; In re Rigdon, 269 F. 150; Ford v. State, 209 S.W. 490; Wren v. Dixon, 40 Nev. 170, Ann. Cas. 1918D 1064.

In construing a constitutional provision the intent is to be found in the instrument itself.

Lake County v. Rollins, 130 U.S. 670, 32 L.Ed. 1060; Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23.

It seems clear that it was the intent of the framers of the Constitution in adopting section 17 thereof that the Legislature or lawmaking body of this state should prescribe the manner for recovering damages to private property by the owner thereof, where such damage was caused by public use.

Section 5006 of Mississippi Code of 1930 provides in substance that the state highway commission may sue and be sued, but I present the view to the court that a suit against the state highway commission cannot be maintained because there is no authority, either in the Constitution or the statutes of the state of Mississippi, authorizing a suit against the state highway commission, as an arm and branch of the state government.

City of Grenada v. Grenada County, 115 Miss. 831; Brabham v. Board of Supervisors, 54 Miss. 363; Sutton v. Board of Police of Carroll County, 41 Miss. 236; Hall v. State, 79 Miss. 38; Brown v. Ford, 112 Miss. 678; Latham v. State Highway Commission, 131 S.E. 385; State Highway Commission v. Gully, 145 So. 851.

I am not unmindful of section 5979 of Mississippi Code of 1930, authorizing suits in certain instances against the state. The section, however, would not authorize the maintenance of a suit in the nature of the instant case before the court.

State v. Dinkins, 77 Miss. 874; Gulf Export Company v. State, 112 Miss. 452; Brown, Land Commissioner et al. v. H. B. & Eugene Ford, 112 Miss. 678; Mississippi Centennial Exposition Co. v. Luderbach et al., 123 Miss. 828; Corinth to Gulf Highway et al. v. Carothers & Co., 129 Miss. 645; Mississippi Livestock Sanitary Board v. Williams et al., 133 Miss. 98; Ayers v. Board of Trustees, 134 Miss. 363; Nabors et al., Trustees, v. Smith et al., 135 Miss. 608; Stringer v. Roper, 152 Miss. 559.

OPINION

McGowen, J.

Parker, the appellant, brought an action at law against the state highway commission of Mississippi, J. F. Thames, and Barber Bros. Construction Company for damages to his land and residence, located in the city of Ellisville, caused by the construction of a state highway adjacent to and abutting on his property. The state highway commission interposed a demurrer, one ground of which is as follows: "The declaration shows on its face that no property of the plaintiff was taken by the state highway commission in performing the work complained of, and even if plaintiff was damaged by the performance of such work, there is no provision of law which entitles plaintiff to recover such damages from the Highway Commission." The demurrer was sustained. The appellant declined to plead further, and thereupon the court dismissed the suit as to the state highway commission and from that judgment appeal is prosecuted here.

The declaration charged, in substance, that appellant owned a residence located on state highway No. 11; that the highway ran immediately in front of his residence and across the front of his property; and that prior to 1932 there was a highway with an established grade which was much lower than the lot upon which his residence was situated. The declaration further charged that the state highway commission, under the authority of chapter 122, Code of 1930 (section 4989 et seq.), entered into a contract with Pigford Bros. for the grading of said highway through the city of Ellisville, and along in front of and across appellant's property. It was further alleged that the contractors, in accordance with the contract, and in accordance with the authority conferred by law, raised the grade immediately in front of appellant's property and cut a considerable ditch there. The following statement is also contained in the declaration: "Plaintiff says that the said highway or street and the said ditch and gutter, as constructed by the authority of the said defenda...