South Carolina & W. Ry v. Ellen

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: HYDRICK
• Citation: 95 S.C. 68,78 S.E. 963
• Decision Date: 06 June 1913
• Parties: SOUTH CAROLINA & W. RY. v. ELLEN.

(95 S.C. 68)
78 S.E. 963

SOUTH CAROLINA & W. RY.
v.
ELLEN.

Supreme Court of South Carolina.

June 6, 1913.

1. Jury (§ 35^*)—Trial by Jury—Condemnation Proceedings—Court of Record. Under Const, art. 9, §§ 20, 21, requiring compensation for property taken for public use to be ascertained by a jury of 12 men in a

court of record as shall be prescribed by court, Civ. Code 1912, § 3292 et seq., relating to condemnation proceedings and providing that the clerk shall call a jury, and further providing in section 3296 that either party may appeal from the verdict of the jury to the circuit court, and, if the court shall be satisfied of the reasonable sufficiency of the grounds, an issue shall be ordered, and the amount of compensation shall be submitted to a jury in open court, is violative of the constitutional right to a jury in a court of record, since condemnation proceedings, being a special statutory proceeding, the jury provided by the act, is not a jury in a court of record, and no absolute right to appeal from such jury is given.

[Ed. Note.—For other cases, see Jury, Cent. Dig. §§ 236-241; Dec. Dig. § 35.*]

2. Constitutional Law (§ 43*) — Validity of Statute—Estoppel.

One who voluntarily proceeds under a statute and claims benefits thereby conferred is estopped to question its constitutionality to avoid its burdens.

[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. §§ 79, 80, 84-99; Dec. Dig. § 43.*]

3. Constitutional Law (§ 43*)—Validity of Statute—Estoppel — Condemnation Proceedings.

Where a railroad, wishing to condemn land, must proceed under Civ. Code 1912, § 3292 et seq., it does not by proceeding thereunder estop itself from attacking the act as unconstitutional as to that portion which fails to allow an appeal in all cases from the clerk's jury; the invalidity of that portion not destroying the scheme of the act.

[Ed. Note.—For other cases, see Constitutional Law. Cent. Dig. §§ 79, 80, 84-99; Dec. Dig. § 43.*]

Fraser, J., dissenting.

Appeal from Common Pleas Circuit Court of Lee County; H. F. Rice, Judge.

Condemnation proceedings by the South Carolina & Western Railway against John H. Ellen. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

M. L. Smith, of Camden, and J. B. McLauchlin, of Columbia, for appellant.

Thos. H. Tatum, of Bishopville, for respondent.

HYDRICK, J. Sections 20 and 21 of article 9 of the Constitution are as follows:

"Sec. 20. No right of way shall be appropriated to the use of any corporation until full compensation therefor shall be first made to the owner or secured by a deposit of money, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury of twelve men, in a court of record, as shall be prescribed by law.

"Sec. 21. The General Assembly shall enforce the provisions of this article by appropriate legislation."

The Civil Code (section 3292 et seq.) authorizes the condemnation of rights of way for railroads, and prescribes, in detail, the manner in which it shall be done, and in which the compensation to the landowner therefor shall be ascertained. It is sufficient for the purpose of the present inquiry to

[78 S.E. 964]

say that when the parties do not agree, and it becomes necessary to resort to condemnation, the corporation shall petition the judge of the circuit, who shall order the petition filed in the clerk's office, and the clerk shall thereupon impanel a jury to ascertain the amount of compensation. Section 3296 provides, in substance, that either party may appeal from the verdict of the jury to the circuit court, and, "if the court shall be satisfied of the reasonable sufficiency of the grounds, " an issue shall be ordered and the question of the amount of compensation shall be submitted to a jury in open court

The railway company instituted this proceeding to condemn a right of way over defendant's land, and have the amount of compensation therefor ascertained. From the verdict of the jury impaneled by the clerk, the company appealed to the circuit court, and demanded that the amount of compensation should be ascertained by a jury in that court. The court was not satisfied of the sufficiency of the grounds of appeal, but held, nevertheless, that the company had the right, under the section of the Constitution above quoted, to have the compensation ascertained by a jury of 12 men in a court of record, and, holding that the jury impaneled by the clerk was not such a jury, ordered the issue set down for trial in the circuit court. The court held, also, that the company, having pursued the only method by which it could obtain the right of way, and have the compensation to be paid therefor assessed, was not estopped from attacking, as unconstitutional and void, the provision of section 3296, above quoted, which requires that the court shall be satisfied of the sufficiency of the grounds of appeal as a condition precedent to the right of trial by jury in open court The appeal challenges these rulings.

The first question to be determined is whether the condemnation proceeding is in the circuit court, or is merely a special statutory proceeding, with right of appeal to the circuit court; for, if the proceeding is in the circuit court, the requirement of the Constitution that the compensation shall be ascertained by a jury of 12 men in a court of record has been satisfied; otherwise, if it is not.

Condemnation of rights of way was unknown to the common law. Its origin is statutory. It is therefore generally regarded by English and American courts as a special statutory proceeding. Numerous expressions in the opinions of this court, and the result of its decisions, show conclusively that we have heretofore regarded it as a special statutory proceeding, not in the court until brought there by appeal. Upon no other hypothesis can the decisions of this court be harmonized.

In Railway Co. v. Ridlehuber, 38 S. C. 308, 17 S. E. 24, the company denied the right of the landowner to compensation for a right of way over his land, and brought an action to enjoin proceedings instituted by him, under the statute, to have his compensation ascertained. The circuit court dismissed the action, holding that the rights of the parties could be settled in the proceedings themselves. This court reversed the ruling, and held that the statute provides only the manner in which the right of way shall be taken and the mode by which the amount of compensation shall be ascertained, and that the issue as to the right to compensation must be determined in an action brought for that purpose. That ruling has been followed ever since.

In Water Co. v. Nunamaker, 73 S. C. 550, 53 S. E. 996, the action was for the same purpose. The court said: "When the right to institute condemnation proceedings is contested, the proper remedy is to bring an action in the court of common pleas in order that the court may, in the exercise of its chancery powers, determine such right. Railway v. Ridlehuber, 38 S. C. 308, 17 S. E. 24; Cureton v. Railway, 59 S. C. 371 [37 S. E. 914]; Glover v. Remley, 62 S. C. 52, 39 S. E. 780; Railroad v. Burton, 63 S. C. 348, 41 S. E. 451; Riley v. Union Station Co., 67 S. C. 84 [45 S. E. 149]; Railway v. Reynolds, 69 S. C. 481, 48 S. E. 476. These cases show that such action must be regarded as independent, and not ancillary to the condemnation proceedings." On petition for rehearing in response to appellant's contention that the court had overlooked the distinction between ancillary and independent suits, the court said: "The appellant also quotes the language of Mr. Justice Bradley, in Wood, 112, in which, after stating he was unable to find any precedent for a bill for injunction to stay proceedings in the same court, says: 'I cannot see any necessity for it If any circumstances exist which render it improper or inequitable to carry on proceedings in this court, they can always be brought to the attention of the court by motion or petition in the suit I shall direct the bill as such to be dismissed, but allow it to stand as a petition in the several suits sought to be suspended. Supposing the matter to be properly brought before the court, on petition and motion thereon, the question arises whether the proceedings in this court ought to be stayed.' Conceding that these principles would prevail if the action herein and the condemnation proceedings were in the same court, they are not applicable, for the reason that this action was commenced in the court of common pleas, while the condemnation proceedings were instituted in a special statutory tribunal from which an appeal may be taken to the court of common pleas." (Italics added.) This case is directly in point, and seems to be conclusive of the question.

If the statutory proceedings were in the court, the court would not entertain a separate action to enjoin them, for the court has control of any action or proceeding pending

[78 S.E. 965]

therein. In such cases the remedy is by a motion in the cause. Ins. Co. v. Mobley, 90 S. C. 552, 73 S. E. 1032.

That the parties are given the right to appeal to the circuit court shows clearly that the Legislature did not regard the proceeding as one in the court. It would be somewhat anomalous to allow an appeal to a court from a proceeding in that court.

The authorities are practically agreed that when a constitution or statute speaks of a jury, without qualifying words, it means a common-law jury of 12 men, presided over by a court But, as statutes in some states provide for "a jury of view, " or "a jury of appraisers, " etc., in condemnation proceedings, no doubt the framers of our Constitution, desiring to make plain their intention that, in this state the parties to such proceedings should have the right to the final decision of a common-law jury, undertook to do so by qualifying the word "jury, " by adding that it should consist of "twelve men, " and sit "in a court of record, " which, of...