State ex rel. State Highway Commission v. Paul

• Decision Date: 04 June 1963
• Docket Number: No. 49805,49805
• Citation: 368 S.W.2d 419
• Parties: STATE of Missouri, ex rel., STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Clifford Charles PAUL et al., On Exceptions of Roy J. Fullington, Lena Fullington, and Shell Oil Company, Inc., Respondents.
• Court: Missouri Supreme Court

Page 419

368 S.W.2d 419

STATE of Missouri, ex rel., STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Clifford Charles PAUL et al., On Exceptions of Roy J Fullington, Lena Fullington, and Shell Oil Company, Inc., Respondents.

No. 49805.

Supreme Court of Missouri, En Banc.

June 4, 1963.

Robert L. Hyder, Ralph H. Duggins, Wilkie Cunnyngham, Jefferson City, for appellant.

C. Kenneth Thies, Kerth, Thies & Schreiber, Clayton, for respondents.

STORCKMAN, Judge.

This is an action to condemn for highway purposes certain land belonging to the defendants Roy J. Fullington and Lena Fullington. Commissioners appointed by the court awarded the defendants $69,000 to which award the plaintiff excepted. The plaintiff paid the full amount of the award into court on February 29, 1960, and took possession of the land. On May 2, 1960, the defendants withdrew from the registry of the court the sum of $30,000 leaving $39,000 on deposit. On June 20, 1961, the trial of the plaintiff's exceptions was concluded and the result was a verdict for the defendants in the sum of $30,000; judgment was rendered accordingly. The amount of the verdict and judgment was the exact amount withdrawn by the defendants from the registry of the court.

Neither party filed a motion for new trial nor made any complaint as to the amount of the verdict and judgment. The only issue remaining in the case is whether the plaintiff is entitled to interest on the sum of $39,000 which was not withdrawn by the defendants and which remained in the registry of the court from the time it was deposited by the plaintiff until the plaintiff became entitled to its return at the conclusion of the litigation involving plaintiff's exceptions. Two additional orders bearing on this issue were made after the original judgment was entered.

On July 12, 1961, at the instance of the plaintiff, a nunc pro tunc order and judgment was entered which held that the defendants were liable to the plaintiff for interest at the rate of six percent on the fund of $39,000 during the time it remained in the registry of the court. On July 18, 1961, the defendants filed their motion to vacate the nunc pro tunc judgment insofar as it allowed the plaintiff to recover interest on the sum of $39,000. On August 1, 1961, the court sustained the defendants' motion to vacate on the ground, among others, that the interest statute, Sec. 523.045, RSMo 1959, V.A.M.S., was unconstitutional and entered a new judgment in favor of the defendants for $30,000 in accordance with the verdict and in favor of the plaintiff for the excess amount of $39,000 but without the allowance of interest.

The plaintiff appealed to the St. Louis Court of Appeals from the judgment, order, and findings of the trial court made August 1, 1961. The St. Louis Court of Appeals, by its opinion reported in 360 S.W.2d 395, properly ordered the appeal transferred to this court on jurisdictional grounds. Where, as here, the judgment of the trial court purports to decide the constitutionality of a state statute, and the question is preserved for review, appellate jurisdiction is in the supreme court. Art. V, Sec. 3, Constitution of Missouri 1945, V.A.M.S.; State ex rel. Jenkins v. Bradley Mo., 358 S.W.2d 38; State v. Errington, Mo., 355 S.W.2d 952; Marshall v. Kansas City, Mo., 355 S.W.2d 877; Kansas City v. Hammer, Mo., 347 S.W.2d 865; Callahan v. Connecticut General Life Insurance Co., Mo.App., 201 S.W.2d 406.

Among other contentions, the defendants assert that Sec. 523.045 does not impose an obligation on the condemnee to pay interest on a deposit left in the registry of the court because the deposit in court of the commissioners' award is not a payment to the defendants within the meaning of the interest statute and cannot lawfully render the condemnee liable to pay interest until he withdraws an amount which is thereafter adjudged to be in excess of that to which he is entitled as damages for the taking of his land. It is a cardinal rule of statutory construction that where a statute is fairly susceptible of a construction in harmony with the Constitution it must be given that construction by the courts and, unless the statute is clearly repugnant to the organic law, its constitutionality must be upheld. City of Joplin v. Industrial Commission of Missouri, Mo., 329 S.W.2d 687, 692; Brown v. Morris, 365 Mo. 946, 290 S.W.2d 160, 167; State on inf. Dalton v. Metropolitan St. Louis Sewer Dist., 365 Mo. 1, 275 S.W.2d 225, 234; State ex inf. McKittrick v. American Colony Ins. Co., 336 Mo. 406, 80 S.W.2d 876, 882-883; State ex rel. Barrett v. May, 290 Mo. 302, 235 S.W. 124, 126.

Courts will not ordinarily pass on constitutional questions where the case presented may be properly decided without doing so. McIntosh v. Connecticut General Life Ins. Co., Mo., 366 S.W.2d 409, 412; City of St. Joseph v. Roller, Mo., 363 S.W.2d 609, 612; Rider v. Julian, 365 Mo. 313, 282 S.W.2d 484, 497. We have concluded that Sec. 523.045 is fairly susceptible to the construction that it does not impose on the condemnee an obligation to pay interest on the fund left on deposit in the registry of the court.

The Constitution of Missouri 1945, Art. I, Sec. 26, provides: 'That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be provided by law; and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested.' Italics added. The requirement of paying the award to the owner or into court for the owner before the condemnor takes possession is carried over into the statutes. Sections 523.040 and 523.050, 1959, V.A.M.S.

The condemnor is not required to take possession of the land before obtaining a final adjudication of the owner's damages. If it chooses not to take possession, the condemnor still has ten days to elect to abandon the condemnation after final assessment of damages has been made, either by subsequent commissioners or by a jury. State ex rel. State Highway Commission v. Deutschman, 346 Mo. 755, 142 S.W.2d 1025, 1028. The legal obligation of the condemnor to deposit in court the amount of the commissioners' award as a condition precedent to taking possession of the land is clear; it is independent of the statutory provisions for interest which were enacted in 1959.

Section 523.045, the statute we are called on to construe, provides for the payment of interest in several situations. The portion with which we are particularly concerned provides that: '* * * if the amount of the award shall be superseded by a subsequent verdict or amount smaller than the award paid, then judgment shall be entered against said persons named to repay to condemnor the amount by which the award paid exceeds the amount of the verdict, with six per cent interest on such excess payment from the date of the payment of the award.' Italics added.

The generally accepted definition of interest is 'the compensation allowed by law, or fixed by the parties, for the use or forbearance of money, or as damages for its detention.' 47 C.J.S. Interest Sec. 1, p. 8. 'The theory on which interest is allowed on any fund is that it is held in such a way that it may be put to work and earn it, that is to say, that the relation of debtor and creditor exists between the owner and user of the fund rather than that of fiduciary or trustee.' 47 C.J.S. Interest Sec. 3, p. 13.

'It has very generally been said that, where a fund in litigation, or the amount of a disputed claim, is deposited in court, or is subject to its order, particularly where the one depositing the fund is a mere stakeholder, interest is not recoverable thereon during the time it remains so deposited, * * *.' 47 C.J.S. Interest Sec. 54, p. 66. A somewhat similar statement is found in 47 C.J.S. Interest Sec. 25, p. 38, relating to funds in litigation or in custody of law.

The award on deposit in the registry of the court has the attributes of a fund in litigation which cannot be distributed without an order of the court. In condemnation cases the approved method is to assess in one sum the damages to a particular lot or tract of land and to require the owner of the fee, lessees, trustees, mortgagees, and other claimants to apply to the circuit court for the apportionment of the damages among them according to their various interests. State ex rel. State Highway Commission v. Conrad, Mo., 310 S.W.2d 871, 877. The condemnor is not concerned with the rights of rival claimants to the award because the fund deposited in court is substituted for the property taken in condemnation. St. Louis Housing Authority v. Evans, Mo., 285 S.W.2d 550, 553-554; State ex rel. McCaskill v. Hall, 325 Mo. 165, 28 S.W.2d 80, 69 A.L.R. 1256. In the instant case Shell Oil Company and a trustee had interests in the fund deposited and it was two months before the court made its order authorizing the withdrawal of $30,000. A considerable amount of time may be required to dispose of adverse claims in condemnation cases especially where some of the condemnees are served by publication and may not have actual knowledge of the proceedings. Then, too, where exceptions are filed, the issue as to the amount of damages ultimately to be distributed remains unsettled. We must assume that matters such as these were within the knowledge of the drafters of the interest statute and the members of the general assembly and that it is not the intent of the enactment to impose an unreasonable and unjust requirement.

The justification for requiring the deposit in court and the need of the owner being in default before interest can be charged is well stated in the early case of St. Louis, K. & N. W. R. Co. v. Knapp, Stout & Co. 160 Mo. 396, 61 S.W. 300, 305: 'No statute allows interest under...