Spafford v. Brevard County

• Citation: 92 Fla. 617,110 So. 451
• Parties: SPAFFORD et al. v. BREVARD COUNTY et al.
• Decision Date: 11 August 1926
• Court: Florida Supreme Court

110 So. 451

92 Fla. 617

SPAFFORD et al. v. BREVARD COUNTY et al.

Florida Supreme Court

August 11, 1926

Rehearing Denied Nov. 9, 1926.

En Banc.

Certiorari to Circuit Court, Brevard County; W. W. Wright, Judge.

Condemnation proceedings by Brevard County, by E. C. Johnson and others county commissioners, and another, against William Spafford and another. To review an order permitting the condemnation of certain property, William Spafford and another bring certiorari.

Order quashed.

On Petition for Rehearing.

Syllabus by the Court

SYLLABUS

Constitutional quaranties of jury trial, due process of law, courts open to redress wrongs, protection of property rights, and compensation for property taken forbid invasion by state. The organic provisions that all men have the inalienable right of possessing and protecting property; that the right of trial by jury shall be secured to all, and remain inviolate forever; that no person shall be deprived of life, liberty or property without due process of law; that private property shall not be taken without just compensation; that all courts in this state shall be open so that every person, for any injury done him in his lands, goods, person, or reputation shall have remedy by due course of law, are designed to protect the secured rights of persons against unconstitutional invasion by the state, as well as from violation by other governmental agencies and individuals.

Counties exercising right of eminent domain, must pay or secure full compensation, as determined by jury prior to taking property before condemnation of land by or for state road department full compensation ascertained by jury must be first paid or secured by deposit of money (Const. art. 16, § 29; Acts 1925 c. 10118). Even if the state of Florida may appropriate private property in the state for public purposes without first paying or securing the compensation therefor that has been ascertained by a jury of twelve men, as is required of all corporations and individuals by section 29, art. 16, of the Constitution, chapter 10118, Acts of 1925, makes the state road department a body corporate, and provides that the right of eminent domain conferred upon such corporation shall be similar to that conferred upon counties, and counties, being quasi corporations, exercise the right of eminent domain subject to section 29, art. 16; therefore condemnation proceedings by or for the state road department, a corporation, under chapter 10118, Acts of 1925, are subject to the requirement of such organic section that full compensation, as ascertained by a jury of twelve men, shall be first paid or secured by the deposit of money before private property may be appropriated to public roads.

Statute does not authorize state road department to use lands sought to be condemned for road purposes on deposit of twice value fixed by circuit judge on affidavits (Acts 1925, c. 10118, § 2; Const. art. 16, § 29). Section 2, c. 10118, Acts of 1925, is inoperative to authorize the state road department, a corporation, to enter upon and utilize lands sought to be condemned for road purposes, upon the deposit of twice the value of the lands as fixed by the circuit judge upon affidavits as to such value, since such portion of the statute violates section 29, art. 16, of the state Constitution, which provides that no private property nor right of way shall be appropriated to the use of any corporation or individual until full compensation therefor shall be first made or secured by deposit of money, which compensation shall be ascertained by a jury of twelve men.

Order authorizing appropriation of land to public use is final and reviewable on writ of certiorari (Const. art. 5, § 5). An order authorizing the appropriation of land of an individual to a public use is to that extent such a final order as will warrant the issuance of a writ of certiorari to test the validity of the order.

Owner of property has right to be heard as to amount of compensation, and such right extends to determination of amounts required to be paid into court or secured (Const. art. 16, § 29). In condemnation proceedings under the right of eminent domain, the owner of property sought to be appropriated has a right to be heard as to the amount of compensation that should be paid or secured to him; and such right extends to a determination of amounts required to be paid into court or secured to meet an ultimate adjudication of compensation, where such amounts are to be paid into court or secured as a prerequisite to an appropriation of the property pending condemnation proceedings.

When right of eminent domain is delegated with conditions, performance of such conditions is subject to judicial cognizance; judicial authority is exercised on notice and hearing. When the right of eminent domain is delegated with conditions to its exercise, the performance of the conditions is subject to judicial cognizance; and judicial authority is exercised upon notice and hearing.

Determination of just compensation for property is judicial function which cannot be performed by Legislature, either directly or indirectly, by delegation of power. In this state the determination of what is just compensation for private property that is taken for public use is a judicial function that cannot be performed by the Legislature, either directly or by any method of indirection.

Amount paid into court on appropriation of property prior to determination of its value should be duly determined by courts by judicial procedure; means and processes of determining compensation for property cannot lawfully be circumscribed or arbitrarily controlled by Legislature. Even if, under the present Constitution of this state, the Legislature may lawfully authorize private property to be appropriated to a public use upon the institution of condemnation proceedings and the payment into court or the securing of such an amount as the court may direct, to pay the adjudged compensation when finally ascertained, the amount so paid into court or secured should be duly determined by the courts in the orderly course of judicial procedure. The means and processes of determining the compensation for property appropriated for public uses cannot lawfully be circumscribed or arbitrarily controlled by legislative action as to make the amount to be paid into court or secured a legislative and not a judicial ascertainment and determination.

Owner of property sought to be taken has right to be heard on question as to whether delegated authority is being duly exercised. Where the sovereign power of eminent domain is delegated with limitations or conditions upon the exercise of the right, the owner of property sought to be taken under such delegated authority has a right to be heard in an appropriate tribunal upon the question of whether delegated authority is being duly exercised in taking his property.

Constitution contemplates taking by corporate state agency shall be by due course of law, after notice and reasonable opportunity to be heard has been given owner. Where the taking or appropriation of particular private property for a public use is not by direct act of Legislature, but is by a corporate state agency, under delegated authority, with conditions attached to the exercise of the power, the organic law contemplates that such taking or appropriation shall be by due course of law after notice and reasonable opportunity to be heard in the premises have been given to the owner.

Provision that private property shall not be taken without just compensation contemplates that, before taking, just compensation shall be paid or adequately secured; owner is entitled to be heard as to what is just compensation before property is appropriated, especially where right to condemn is delegated with limitations and conditions (Const. art. 16, § 29). The organic provision that private property shall not be taken without just compensation contemplates that, before private property is taken for a public use, just compensation therefor shall be paid or adequately secured, and the owner is entitled to be heard as to what is just compensation before the property is appropriated, at least where the right to condemn is delegated to an agency with attached limitations and conditions to the exercise of the delegated authority.

Statute authorizing condemnation by state road department provides for proceedings in due course of law except part thereof is arbitrary attempt to appropriate property without lawful determination of just compensation therefor (Rev. Gen. St. 1920, § 1505; Acts 1925, c. 10118, § 2). The statutes provide for orderly judicial proceedings to be had in due course of law, except that the provisions of section 2, c. 10118, for an order for the entry upon and the construction of a highway on the lands sought to be condemned upon the making of a deposit, the amount of which is determined upon ex parte affidavits without notice to the owner of the property, is an arbitrary attempt to appropriate property without due process of law and without a lawful determination of what is just compensation for the property taken.

Presumption is in favor of declaration by Legislature that use is public, and courts will not interfere unless such use is clearly and manifestly private (Acts 1925, c. 10118; Acts 1919, c. 7900; Acts 1923, c. 9311). While the question of whether the use for which private property is taken by eminent domain is a public use is ultimately a judicial question, where the Legislature declares a particular use to be a public use, the presumption is in favor of its declaration, and the courts would not interfere therewith unless the use is clearly and manifestly of a private character.

Appropriation of property for...