State v. Jefferson County Bd. of Ed.

• Decision Date: 04 April 1968
• Docket Number: 6 Div. 197
• Citation: 211 So.2d 146,282 Ala. 303
• Parties: STATE of Alabama v. JEFFERSON COUNTY BOARD OF EDUCATION. , 197 A, B & C.
• Court: Alabama Supreme Court

Page 146

211 So.2d 146

282 Ala. 303

STATE of Alabama v. JEFFERSON COUNTY BOARD OF EDUCATION.

6 Div. 197, 197 A, B & C.

Supreme Court of Alabama.

April 4, 1968.

Rehearing Denied June 20, 1968.

MacDonald Gallion, Atty. Gen., Harvey Elrod, Montgomery, and Jos. S. Mead, Birmingham, for appellant.

Maurice F. Bishop, Frank Bainbridge and J. Kirkman Jackson, Birmingham, for appellee.

LIVINGSTON, Chief Justice.

This is a condemnation proceeding instituted by the State of Alabama to acquire certain school lands owned by the Jefferson County Board of Education for the purpose of building a public highway.

On November 20, 1962, the State of Alabama (State) filed a verified application in the Probate Court of Jefferson County, Alabama, against the Jefferson County Board of Education (Board) to condemn for use as a public highway 18.36 acres or 43.27% Of the 42.43 acre campus of Shades Valley High School. The campus was, and for years past had been, subject and devoted to public use as public school property, was owned by the Board, and located approximately 4 miles from the Jefferson County Courthouse.

The Board acquired this school property by purchases made in 1947 and 1952. The substantial school buildings and facilities situated on the campus site were constructed at a cost of over $2,500,000 from proceeds of School Board warrants secured by a special local 5-mill ad valorem tax voted by citizens of the area served by the school.

The verified application for condemnation, filed under Chapter 1, Title 19, Code of Alabama 1940 (Recompiled in 1958), averred that the property involved was owned by the Board. It was also averred that the property was 'presently devoted to use by the public as part of an educational facility' and that the use of the property 'for highway purposes will not materially interfere with the use of the property by the respondent.' The application was granted and commissioners were appointed by the Probate Court. After hearings, under Sec. 13, Title 19, Code, they filed their report in writing under Sec. 16, Title 19, Code, and fixed the just compensation to be awarded at the sum of $600,000, on the basis of which an order of condemnation was entered in the Probate Court. Both the State and the Board filed timely notices of appeal to the Circuit Court of Jefferson County under Sec. 17, Title 19, Code, and each demanded a jury trial as to the valuation issue. The State immediately took possession of the property and commenced construction of the highway.

The Board, relying upon Sec. 9 of Title 19, Code, contended in the Probate and Circuit Court that the 18.36 acres were already devoted and subject to a public use; that there was no actual necessity for the taking, and that use of the 18.36 acres for highway purposes would render it impossible for these 18.36 acres to be used in the future for school purposes, and that the State had no right to condemn any portion of the school property. The Probate and Circuit Courts each held that the State had the right to condemn the 18.36 acres and that it must pay to the Board compensation for the land taken and for damages to the remainder. The Circuit Court held that the 18.36 acres already was devoted to a public purpose but there was an actual necessity for the taking for highway purposes and the taking of the 18.36 acres 'will not materially interfere with the public use to which the remainder of said land or property is already subjected or devoted.'

The jury trial, on the valuation issue, extended over a period of four weeks. The record of that trial covers over 2700 transcript pages and resulted in a verdict of $485,000 on the basis of which the final order of condemnation was entered in the Circuit Court. The State filed a motion for new trial which was overruled, and the State appealed. It filed three other separate appeals to this Court, and the Board took a conditional cross-appeal, presenting for review the issue of whether the State had the right to condemn the 18.36 acres.

The State has taken four separate appeals in this case. The main appeal, 6 Div. 197, presents the question of whether or not the State has to pay compensation to the School Board for property owned by the Board and already being used for a public purpose; 6 Div. 197--A concerns the taxation of costs in the case; 6 Div. 197--B concerns the taxation of costs and apportionment of interest earned, said interest being peculiar to this case and explained later herein; 6 Div. 197--C concerns only the apportionment of interest earned.

Each appeal taken by the State other than 6 Div. 197 presents a single issue for determination by this Court, with only one assignment of error in each case.

We can perceive of no reason why these four appeals should not be dealt with and disposed of in a single opinion, and we will dispose of all matters presented for review by this Court in a single opinion.

The principal issue argued by the State under Assignment of Error No. 5 in 6 Div. 197, raised for the first time upon trial in the circuit court and after the State had taken possession of the 18.36 acres, is whether property already devoted to a public use and owned by a local board of education can be condemned or taken by the State Highway Department for highway purposes without payment of any compensation to the school board for the property so taken and damaged.

We are clear to the conclusion that the argument of the State that it may take the property owned by the Board of Education without compensation is without merit and contrary to the Constitution and statutes of Alabama and the prior decisions of this Court and other appellate courts. Sec. 23, 1901 Constitution of Alabama; Chapter 1, Title 19, supra; Sec. 71, Title 52, Code 1940 (Recompiled in 1958); Jefferson County v. City of Birmingham, 217 Ala. 268, 115 So. 422; Louisville & Nashville R.R. Co. v. Western Union Telegraph Co., 195 Ala. 124, 71 So. 118; State By and Through Road Commission v. Salt Lake City Public Board of Education, 13 Utah 2d 56, 368 P.2d 468; State ex rel. State Highway Commission v. Board of County Commissioners of Dona Ana County, 72 N.M. 86, 380 P.2d 830; Board of Education of Town of Morristown v. Palmer, 88 N.J.Super. 378, 212 A.2d 564; United States v. Board of Education of Mineral County, 4 Cir., 253 F.2d 760; State ex rel. State Highway Commission v. City of Albuquerque, 67 N.M. 383, 355 P.2d 925; School District of Borough of Speers v. Comm., 383 Pa. 206, 117 A.2d 702; State Highway Commission v. Greensboro City Board of Education, 265 N.C. 35, 143 S.E.2d 87; State v. Waco Independent School District, Tex.Civ.App., 364 S.W.2d 263.

The State does not argue or contend in this Court that the jury award was excessive. The cross assignments of error are urged only if the court should hold there is any reversible error in the record as to the valuation issue. The above authorities fully support the proposition that just compensation must be paid to the Board.

Section 23 of the 1901 Constitution of Alabama requires that 'just compensation shall, in all cases, be first made to the owner.' Section 235 of the Constitution provides:

'Municipal and other corporations and individuals invested with the privilege of Taking property for public use, shall make just compensation, to be ascertained as may be provided by law, * * *' (Emphasis supplied.)

Chapter 1, Title 19, supra, governs and controls the right and power of 'The State of Alabama' to condemn property, including 'Property already devoted to public use,' and provides that compensation shall be paid to the owner.

In Jefferson County v. City of Birmingham, 217 Ala. 268, 115 So. 422, a local act passed by the Legislature allowed Jefferson County to condemn part of a Birmingham City Park in order to build a new courthouse. This Court declared:

'* * * The Legislature determines the wisdom, expediency, or necessity of diverting the property from one public use to another, subject at all times to the condition that just conpensation must be paid to the owner.'

In the instant case, the State had statutory authority to condemn the property if it met the requirements of Sec. 9 of Title 19, supra, but just compensation must be paid the school board.

In the recent and leading case of State By and Through Road Commission v. Salt Lake City Public Board of Education (1962), 13 Utah 2d 56, 368 P.2d 468, the Highway Department of Utah urged the same argument as that here pressed by the State. In that case, as here, the highway department filed a condemnation proceeding to take land of the school board for an interstate highway. It then moved for a summary judgment on the basis that it was not obligated to pay anything, specifically contending, as the State does here, that:

'Inasmuch as the property was merely being transferred from one public use and one public agency to another, it was not obligated to pay.'

In rejecting this argument and holding that the State was required to pay just compensation, the Supreme Court of Utah declared:

'The gravamen of the plaintiff's argument is that it should not be supposed that the legislature would require that one public agency, under the necessity of taking the property of another, should compensate it because that would be the same as taking public money out of one pocket and putting into another. This argument may appear on the surface to have some merit, and it would in fact have some validity if the resources of the state could be regarded as one unified fund. But the argument is not sound, because that is not the fact. The fallacy is...