Simms. v. Dillon, (No. 8667)
| Citation | 119 W.Va. 284 |
| Docket Number | (No. 8667) |
| Decision Date | 12 October 1937 |
| Court | Supreme Court of West Virginia |
| Parties | John Simms et al. v. H. E. Dillon, Jr., Judge, etc. |
John Simms et al.
v.
H. E. Dillon, Jr., Judge, etc.
Supreme Court of Appeals of West Virginia.
Submitted September 2, 1937.
Decided October 12, 1937.
1. Prohibition
In a proper case, prohibition lies to test the constitutionality of an act of the legislature, under Code 53-1-1, which provides that prohibition lies "as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers."
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2. Eminent Domain
Chapter 122 of the 1937 Acts of the Legislature, amending and re-enacting Code 54-2-14, provides that in a condemnation proceeding by the state or any of its political subdivisions, after entry upon the land sought to be taken, "such proceeding shall proceed to final award or judgment after a reasonable time has elapsed for the completion of the work upon the particular property so entered upon and taken possession of, and the applicant shall pay to the owner of the land the amount of compensation and damages as finally determined in such proceeding." This statute, in that it provides for the payment of compensation within a reasona.ble time after entry, is constitutional.
3. Eminent Domain
Under Chapter 122 of the 1937 Acts of the Legislature, in a case where entry is made upon the land sought to be taken, it will become the duty of the court entering the final award to provide for the payment of interest at the legal rate during the time between the taking and the final payment of the money due, notwithstanding that there is no express provision to that effect contained in said Act of the Legislature.
4. Jury
Article iii, Section 13 of the West Virginia Constitution simply preserves the right of trial by jury as it existed at common law. At common law there was no such right in a condemnation proceeding. Therefore, Chapter 122 of the 1937 Acts of the Legislature is not violative of this constitutional provision in that it provides for the entry upon land sought to be taken for public use before final award of damages without first affording to the landowner the right to have the jury view the premises at or reasonably near the time of taking the land.
Kenna, President, absent.
Original prohibition proceeding by John Simms and others against the Hon. H. E. Dillon, Jr., Judge of the Circuit Court of Fayette County.
Writ denied.
Mahan, Bacon & White, for petitioners.
C, B, Vickers and R. J. Thrift, Jr., for respondent.
[119 W.Va. 286]
Riley, Judge:
This is a proceeding in prohibition originally instituted in this Court by John Simms and others, owners of land taken by the State Road Commission for the rebuilding of U. S. Route No. 60 in Fayette County, West Virginia, to prevent Honorable H. E. Dillon, Jr., Judge of the Circuit Court of Fayette County, from further continuing and refusing to docket the eminent domain suit instituted in his court by the State Road Commission of West Virginia for the purpose of condemning land owned by the petitioners.
The commissioners reported, fixing the compensation due the petitioners for the land taken and the damages to the residue, less the peculiar benefits, and the State Road Commission filed its exceptions to the report and requested a trial by jury. Thereafter, at the request of the petitioners, the case was set for trial on August 5, 1937. On August 3, 1937, the attorney for the State Road Commission appeared in the circuit court and moved that the case be continued generally, assigning as the basis of that motion, the provisions of Chapter 122 of the 1937 Acts of the Legislature, which chapter is an amendment to Code 54-2-14.
By this amendment, the following clause is added to Section 14: "* * * but such proceedings shall proceed to final award or judgment after a reasonable time has elapsed for completion of the work upon the particular property so entered upon and taken possession of, and the applicant shall pay to the owner of the land the amount of compensation and damages as finally determined in such proceedings." The sole reason assigned by the petitioners in support of their application for the writ is the assumption that said Chapter 122 is unconstitutional.
Logically, the first question to be decided is whether or not prohibition is a proper remedy for the determination of the constitutionality of an act of the legislature, if all other requisites for the use of such remedy exist. It is the contention of the respondent, set up by demurrer
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to the petition, that prohibition cannot be so used. Although this question has never been expressly decided by this Court, it was raised in the case of McDonald V. Guthrie, Judge, 43 W. Va. 595, 27 S. E. 844, in which the constitutionality of an act of the legislature was determined in the affirmative, but the court refused to pass on the use of prohibition as a proper remedy, deeming it unnecessary. Judge Brannon, however, who wrote the opinion in the case, speaking for himself alone, said that he believed prohibition was not a proper remedy, assigning as his reason that an appeal would lie to a final judgment of the court in the proceeding as to which prohibition was sought. Nevertheless, it is the opinion of this Court, as presently constituted, that it is necessary to determine the question of the adequacy of the writ of prohibition before the question of the constitutionality of the act can be considered.
The law in effect at the time of this decision in 1897 was the Acts of the Legislature 1882, Chapter 153, Section 1, which provided in the language of the present statute that prohibition should lie as a matter of right. The present statute, Code 53-1-1, prescribing the purposes of the writ of prohibition, provides: "The writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers."
There are many cases from various jurisdictions in which the constitutionality of an act of the legislature has been tried by prohibition. Bell v. First Judicial District, 28 Nev. 280, 81 P. 875, 6 Ann. Cas. 983, and note; Ex Parte Roundtree, 51 Ala. 42; State v. Packard, 32 N. D. 301, 155 N. W. 666; Curtis V. Cornish, 109 Me. 384, 84 A. 799. There are, of course, cases to the contrary holding that the constitutionality of an act of the legislature may not be determined in prohibition (Pizzini v. Grinnan, J., 112 Va. 241, 70 S. E. 850), and there are cases holding that where there is another adequate remedy, that prohibition will not lie for such a purpose, al-
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though it will lie if there be no such remedy. In re Schumaker, 90 Wis. 488, 63 N. W. 1050. Also see note, 6 Ann. Cas. 986.
It will be noted from Code 53-1-1 that prohibition lies in this state not only where jurisdiction is not present, but also where the court is exceeding its legitimate powers, although it has full jurisdiction of the subject matter in controversy. A good illustration of the application of this principle is found in the case of State v. Dailey, 72 W. Va. 520, 79 S. E. 668, 47 L. R. A. (N. S.) 1207, in which the court granted a writ...
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