The Chesapeake v. Hoard

• Decision Date: 20 March 1880
• Citation: 16 W.Va. 270
• Parties: The Chesapeake and Ohio Railway Company, v. Hoard, et aL,
• Court: West Virginia Supreme Court

16 W.Va. 270

The Chesapeake and Ohio Railway Company,

v.Hoard, et aL,

Supreme Court of Appeals of West Virginia.

Decided March 20, 1880.

1. A statute general in its terms and without negative words will not be construed to repeal by implication the particular provisions of a former statute which are special in their application to a particular case, or class of cases, unless the repugnancy be so glaring and irreconcilable as to indicate the-legislative intent to repeal.

2. The provisions in chapter eighty-eight of the Acts of 1872-3, in reference to the manner in which lands shall be condemned by railroad companies, is not repealed nor abrogated by chapter one hundred and fourteen of the Acts of 1875, and the amendatory act of 1879, chapter eight, and therefore the circuit court has no jurisdiction in a case where a railroad company seeks to condemn lands, the jurisdiction in such cases being confined to the county court, as decided in Railroad v. Patton, 9 W. Va. 648.

Writ of error to an order of the circuit court of the county of Wayne, rendered on the 16th day of August, 1879, in a cause in said court then pending, wherein The Chesapeake & Ohio Railway Company was plaintiff and C. B. Hoard and others were defendants, allowed upon the petition of said company.

Hon. Evermont Ward, judge of the ninth judicial circuit, rendered the order appealed from.

The facts of the case are stated in the opinion of the Court,

W. J. Robertson and William H. Hogeman, for appellant, cited the following authorities:

Acts 1875, ch. 114; Acts 1879, ch. 8; Con. W. Va. Art, III; Acts 1866, ch. 131, §10; Potter's Dwarris 110; 6 W. Va. 235; Id. 410; Id. 147; 16 Gratt. 1; 11 Wall. 88; 12 Mass. 537; 8 W. Va. 613; Potter's Dwarris 654; Sedg. Con. Stat. 19; Acts 1875, ch. 82.

James H. Ferguson, for appellee, cited the following authorities:

Con. W. Va. Art. XI, §§ 1, 7 12; Acts 1872-3, ch. 88, §§ 18, 37, 44, 45; Id. ch. 227; Acts 1875, ch. 114; Code ch. 42; 9 W. Va. 648.

Moore, Judge, delivered the opinion of the Court:

The Chesapeake and Ohio Railway Company petitioned the circuit court of Wayne county to cause commissioners to be appointed to view certain lands belonging to the defendants and ascertain a just compensation therefor, and to make such orders and have such proceedings therein as needful to vest in the petitioner a full, complete and legal title to said lands. The defendants, C. B. Hoard and The Ceredo Cemetery Association, moved to dismiss the proceeding for want of jurisdiction, which motion the circuit court sustained and by its order, entered August 16, 1879, did dismiss the proceeding for want of jurisdiction. The Chesapeake and Ohio Railway Company, petitioned for and obtained a writ of error to said order, and thus presents for our consideration the one question: Had the circuit court of Wayne county jurisdiction of the matter?

The appellant contends that this jurisdiction of the circuit court exists by virtue of chapter one hundred and fourteen of the Acts of 1875, as amended by chapter eight of the Acts of 1879. It is contended by the appellees that these acts have no reference to railroads, and that the only remedy for railroad companies in such "cases, is under chapter eighty-eight, Acts of 1872-3, which gives the jurisdiction to the "court of the county wherein the land or material to be taken may be," and that this means the county court.

In the case of Ihe C. & 0. R. R. Co. v. Patton et al., 9 W. Va. 648, this Court decided that: "The thirtyseventh section of chapter eighty-eight of the Acts of 1872-3, requires all railroad companies, which, when this law was passed, April 3, 1873, were constructing their roads, if they desired to acquire title to lands, to proceed in the manner prescribed by the eighteenth section of such act, and after the passage of this act, such a railroad, though incorporated before this act passed, cannot condemn lands in the manner prescribed by the Code of West Virginia," Such being the construction given to chapter eighty-eight of the Acts of 1872-3, by this Court, it follows that the Chesapeake and Ohio Railway Company in its application to condemn the lands of the appellees in this case, must follow the provisions of said chapter eighty-eight, unless those provisions have been altered by subsequent legislation. Section eighteen of said chapter eighty-eight confers the jurisdiction for condemnation, in behalf of railroads, upon "the court of any county wherein the land or material to be taken may be." That language I interpret to mean the county court, and not the circuit court. The forty-second section declares: "All general laws of this State in relation to railroad corporations, and the powers and duties thereof, so far as the same are not inconsistent with the provisions of this act, shall remain in force and be applicable to railroad corporations organized under this act," &c.

Section forty-five, repeals " all acts and parts of acts inconsistent with the provisions of this act," therefore it follows that whatever tribunal may have had jurisdiction in such matters of condemnation of lands prior to the passage of chapter eighty-eight, (April 3, 1873,) its jurisdiction was, so far as railroad associations were concerned, transferred to the county court. The title of chapter eighty-eight, Acts 1872-3, is: "An act to provide for the incorporation of associations that may be organized for the purpose of constructing railroads, maintaining and operating the same; for prescribing and defining the duties and limiting the powers of such corporations when so organized."

Article six, section thirty, Constitution ordains, that ' no act hereafter passed shall embrace more than one object, and that shall be expressed in the title. But if any object shall be embraced in an act, which is not so expressed, the act shall be void only as to so much thereof, as shall not be so expressed, and no law shall be revived, or amended, by reference to its title only; but the law revived, or the section amended, shall be inserted at large in the new act."

The object of chapter eighty-eight, Acts 1872-3, is made plain in the title. It cannot be misunderstood from the title and the act itself, that the Legislature intended to pass by chapter eighty-eight a general act applicable to railroads alone, and thus withdraw railroad associations or companies as fully as possible from the provisions of the Code governing corporations in general. Such seems to have been the view oi this court in its decision of the case of the Railroad v. Patton, before cited. Therefore, as by the Act of April 3, 1873, (chapter eighty-eight,) a uniform law was intended to be given to railroads, it follows, that after its passage, April 3, 1873, chapter forty-two of the Code was no longer applicable to railroads, however applicable it may have been as to others seeking condemnation of private property.

But it is argued that the Legislature, by passing chapter one hundred and fourteen, Acts 1875, as amended by chapter eight, Acts 1879, operates a repeal of chapter eighty-eight, Acts 1872-3, as to condemnation. The title of the Act 1875, chapter one hundred and fourteen, is: "An act amending certain sections of chapter fortytwo of the Code of West Virginia, for taking lands for public purposes without the owner's consent." The firstsection is verbatim the ninth section of article three of the Constitution, which ordains, that " private property shall not be taken or damaged for public use, without just compensation; nor shall the same be taken by any company incorporated for the purposes of internal improvement, until just compensation shall have been paid, or secured to be paid, to the owner; and when private property shall be taken, or damaged, for public use, or for the use of such corporations, the compensation to the owner shall be ascertained in such manner, as may be prescribed by general law. Provided, That when required by either of the parties, such compensation shall be ascertained by an impartial jury of twelve freeholders." The first section of chapter forty-two of the Code, as thus amended, declared:" Private property shall not be taken for public use without just compensation; nor then, unless such taking has been authorized by statute."

The second section of the act of 1875, as amended by chapter eight, Acts 1879, declares: "The public use for which such private property may be taken shall be for the purposes of internal improvement; for the construction of roads, canals, public streets and alleys; for incorporated companies of which the State is sole or part owner; for court-houses and other public buildings, and for the use of cemetery associations and public burying grounds. * * *; and for the use of companies incorporated for the purpose of transporting oil or other fluids by lines of tubing or piping or otherwise; and for telegraph or telephone companies; for school-houses and all other public institutions incorporated by law. And if such private property be taken by any incorporated company other than a company incorporated for public purposes in which the State is owner of the property, the same shall not be taken or damaged until just com-pensation shall have been paid to the owners or secured, to be paid in such manner as the court before whom the proceedings may be had shall deem satisfactory. The compensation to the owner shall be ascertained in the mode prescribed by law," &c.

The third section of chapter one hundred and fourteen, Acts 1875, as amended by the eighth chapter of Acts 1879, declares: "In any case in which real estate may be lawfully taken, application by petition may be made to the circuit court or county court of the county, in which such real estate is situated, to appoint commissioners to ascertain a just compensation to the owner of the estate proposed to be taken," &c.

Chapter one hundred and fourteen, Acts 1875, with some slight amendments unimportant to this enquiry, proceeds to...