Sullivan v. Yazoo & M.V.R. Co.

Decision Date13 March 1905
Citation85 Miss. 649,38 So. 33
PartiesWILLIAM C. SULLIVAN ET AL. v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY
CourtMississippi Supreme Court

FROM the circuit court of, second district, Tallahatchie county HON. SAMUEL C. COOK, Judge.

The railroad company, appellee, was plaintiff, and Sullivan, a justice of the peace, and others, appellants, were defendants there. The action was a mandamus proceeding, and from a judgment awarding the writ the defendants appealed to the supreme court.

In August, 1903, the Yazoo & Mississippi Valley Railroad Company filed with the clerk of the circuit court a written application for the condemnation of certain land in Tallahatchie county for public use. On this application a summons and writ was issued for the organization of a court of eminent domain. The justice of the peace and the jurors selected assembled on the day fixed in the writ, and the defendants, the property owners, appeared by counsel and demurred to the application and writ. The demurrer was sustained by the justice of the peace and the proceeding was dismissed. Afterwards the state of Mississippi, by its attorney-general, filed a petition in the circuit court, on his own relation, for the benefit of the Yazoo & Mississippi Valley Railroad Company, reciting the foregoing facts, and alleging that the action of the justice of the peace was illegal and improper, and praying for a writ of mandamus directed to the justice of the peace, Sullivan, to require him to proceed with the eminent domain court. To this petition Sullivan, the justice of the peace, demurred on the grounds, inter alia, that the petition was that of the state by its attorney-general, instead of being the petition of the Yazoo & Mississippi Valley Railroad Company, and that the matter of the condemnation of land for the use of the railroad company was not such a matter affecting the public interest as warranted a proceeding by the attorney-general. The circuit court sustained the demurrer, and the petition was dismissed, from which judgment an appeal was taken in behalf of the railroad company to the supreme court, but it was afterwards dismissed. In October, 1903, the Yazoo &amp Mississippi Valley Railroad Company filed its new or second written application with the clerk of the circuit court of Tallahatchie county, where the land was located, asking for the issuance of a writ and summons for the organization of an eminent domain court to condemn the same lands. The writ was issued by the clerk, directed to Sullivan, justice of the peace of the district where the land was located, requiring the service of summons on the jurors who had been drawn. On the proper day the court was organized, and the defendants the landowners, appeared by counsel and filed several pleas one of which was res adjudicata, based on the proceeding had in the other case. A motion to strike out the plea was overruled, and an order was entered reciting, "Having heard argument upon said motion, and considering that the plea of res adjudicata is a good plea, the court doth overrule the motion, dismiss the application, and decline to proceed further in the cause," wherefore the jury was discharged. Afterwards the Yazoo & Mississippi Valley Railroad Company filed its petition in this case in the circuit court of Tallahatchie county for a writ of mandamus directed to the justice of the peace, Sullivan, and to the jurors who had been impaneled in said eminent domain court compelling them to proceed with their duties in the matter. The defendants appeared and filed a demurrer to this petition, assigning as causes of demurrer that the court was without power by mandamus to compel the defendant Sullivan, who presided at the eminent domain court, to decide the question raised in his court in the way to be indicated by the circuit court, or to review his actions as judge of the eminent domain court in a mandamus proceeding; that. the matters determined by the justice of the peace in the eminent domain court were judicial questions for him to determine on the pleas filed, and the circuit court by mandamus had no power to control his discretion or review his judgment rendered. Upon motion the court struck this demurrer from the file upon the ground that it was frivolous. Defendants then offered to file other pleas to the merits of the petition, setting up special matters of defense, and the court refused to permit them to be filed. The court entered an order awarding the writ of mandamus, directing the justice of the peace and the jurors to reassemble at a certain time and place named, and to proceed as the law directs to assess the damages sustained by the parties interested in the land sought to be condemned, and ordering the justice of the peace to have other competent jurors summoned in case the jurors already selected failed to appear.

Reversed and remanded.

Harris, Powell & Harris, and Brewer & Creekmore, for appellants.

In speaking of the exercise of power of eminent domain, Lewis, in his book on that subject, sec. 253, says: "The authority must be strictly pursued. This is a proposition so universally considered and so often reiterated by the courts that it requires no discussion. We shall simply refer to some of the principal cases illustrating the doctrine." In sec. 254 he says: "Statutes giving authority to condemn are strictly construed. All grants of power by the government are to be strictly construed, and this is especially true with respect to the power of eminent domain, which is more harsh and peremptory in its exercise and operation than any other. 'An act of this sort,' says Bland, J., 'deserves no favor. To construe it liberally would be sinning against the rights of property.'"

All of this is familiar learning, and it is not necessary for us to cite authorities on this line.

We refer the court to the chapter of the code on the subject of mandamus. Sec. 2846 provides: "The writ of mandamus shall be issued by the circuit court commanding any inferior tribunal, corporation, board, officer, or person to do or not to do an act in performance or omission of which the law specially enjoins, as a duty resulting from an office, trust, or station where there is not a plain, adequate, or speedy remedy in the ordinary course of law."

The chapter on eminent domain prescribes precisely the manner in which an eminent domain court should be constituted, assembled, or organized, and the first step is the filing of the petition with the circuit clerk and appointment by him of a justice of the peace and the drawing by the circuit clerk, in the presence of the sheriff and chancery clerk, of a jury, who, together with the justice of the peace, shall constitute the court of eminent domain. The justice of the peace and the jurors, as well as the parties defendant, are to be summoned by the circuit clerk to assemble at the time and place to be designated by him. No power whatever is given to the justice of the peace to summon the jury, or any part of it, or to summon the parties, or to issue any writs whatever. The law enjoins no duty of this character upon him any more than it enjoins it upon the jurors. It is not a duty resulting from the office. The summons is issued not only by the clerk for the jurors, but also for the justice of the peace, and there is nowhere in the statute any power given the justice of the peace, either expressly or by implication, to assemble the jury. The action of mandamus in this state is purely a statutory proceeding, and it only lies to compel the performance of an act which the law enjoins as a duty resulting from office.

Now it will be seen that in the case at bar the eminent domain court had been dissolved, the jury had been dismissed, and the court had become functus; it was gone, it no longer existed. The petition asks the circuit court not only by its writ to assemble the court to confer the powers upon the justice of the peace which are not enjoined upon him by the eminent domain chapter and which he does not possess. We quote from the prayer of the petition, which prayer was granted: "That upon the failure of any of the jurors to assemble, the said Sullivan, justice of the peace, shall have other jurors summoned so as to duly organize the court of eminent domain." "That the justice of the peace give notice to all the parties shown by the application of the time and place of the assembling of said justice of the peace and jurors."

There is no authority or duty imposed by law upon the justice of the peace to summon the jurors or to summon the parties. He has no power whatever to issue any writs, and this power could not be conferred upon him by mandamus.

Notwithstanding the fact that the authorities are firmly fixed that the statutory directions for exercising the power of eminent domain court must be strictly followed, we have here the circuit court by a writ of mandamus assembling the court, whereas the statute provides that this court shall be assembled by the sheriff under writs issued by the circuit clerk; and the circuit court goes further and confers powers upon the justice of the peace which, by law, he does not possess, directing him to perform duties which are not enjoined upon him by virtue of his office; and we insist that this judgment on these grounds should be reversed. If the clerk of the court, after the petition had been filed, should refuse to issue writs as required by law, the court could by writ of mandamus compel him to issue them. If, after the writs had been placed in the hands of the sheriff, he refused to execute them, the court, by its writ of mandamus, could compel him to do so, but the court cannot confer the powers upon the justice of the peace which are not given him by the statute.

The justice of the peace is with the jury a...

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