United States v. Hess, 9805.

• Decision Date: 27 February 1934
• Docket Number: No. 9805.,9805.
• Citation: 70 F.2d 142
• Parties: UNITED STATES v. HESS.
• Court: U.S. Court of Appeals — Eighth Circuit

70 F.2d 142 (1934)

UNITED STATES v. HESS.^*

No. 9805.

Circuit Court of Appeals, Eighth Circuit.

February 27, 1934.

George C. Sweeney, Asst. Atty. Gen. (Louis H. Breuer, U. S. Atty., of Rolla, Mo., Bryan Purteet, Asst. U. S. Atty., of St. Louis, Mo., and John C. Dyott and Aubrey Lawrence, Sp. Assts. to Atty. Gen., on the brief), for the United States.

R. B. Oliver, Jr., of Cape Girardeau, Mo. (R. B. Oliver, Allen L. Oliver, and Oliver & Oliver, all of Cape Girardeau, Mo., on the brief), for appellee.

Before GARDNER and WOODROUGH, Circuit Judges, and MARTINEAU, District Judge.

WOODROUGH, Circuit Judge.

Proceedings were regularly instituted by the United States against one Price F. Hess, a lady residing in Charleston, Mo., and others, to condemn a flowage easement over tracts of land in Mississippi county, Mo., in furtherance of the Mississippi flood control project created by the Act of May 15, 1928, 45 Stat. 534, title 33 USCA, c. 15, § 702a et seq. Upon filing the petition, process was served upon the owners, and three commissioners were appointed by the District Court as provided by the act, and they duly reported an award of damages. Both the government and the owners filed exceptions to the award. The landowner, Price F. Hess, included in her exceptions demand "that a new assessment and appraisement be ordered made by a jury under the supervision of the court as in ordinary cases in inquiry of damages." The trial court thereupon vacated the award reported by the commissioners and set the case down for trial by jury. Thereafter it impaneled a jury to try de novo the question of the amount of compensation. The government contended that "the law places the burden upon the court (to determine the issue on the exceptions to the award) rather than a jury." The trial court directed that the record should show that it was a case in the opinion of the government "wherein a jury is not warranted by law" and that "the government objects to the submission of the case to a jury." An exception was allowed to the ruling of the court that the trial should proceed by jury. The issue as to the amount of damages was submitted to the jury, and, upon return of the jury verdict, the trial court entered judgment thereon. The government appeals from the judgment upon the ground that the Flood Control Act does not accord to property owners affected the right to trial by jury of the amount of compensation payable in condemnations under the act, and that the trial court erred in refusing to review the award without a jury.

The relevant provision of the Flood Control Act (section 4 33 USCA § 702d) concerning condemnation proceedings thereunder is: "In all such proceedings the court, for the purpose of ascertaining the value of the property and assessing the compensation to be paid, shall appoint three commissioners, whose award, when confirmed by the court, shall be final."

It is contended for the landowner that the procedure in condemnations under the Flood Control Act is covered by the Conformity Act (28 USCA § 724), and that, under the mode of procedure in like causes in the courts of record of the state of Missouri, she had the right to trial by jury.

The effort of the government on this appeal is to have the general question determined whether property owners have the right to jury trial on the amount of damages in condemnations under the Flood Control Act in those states within the area of the flood control project where the laws of the state require such mode of procedure in condemnation proceedings. The project is very extensive, and contemplates a continuance of operations which necessitate numerous condemnations in several states, and the importance of the question is manifest. It was discussed before this court in the appeal of Frances Ralph Realty Co. v. United States, 52 F.(2d) 92, but it developed in that case the parties had voluntarily prescribed the procedure that should be adopted in the condemnation involved and were bound by their written stipulation, so that the general question was not for decision by this court. Again, in this case, we find other considerations which appear to us determinative of the appeal.

It is apparent that the Flood Control Act does not by any of its terms confer the right of jury trial on the issue of damages upon property owners affected and made parties to the condemnation proceedings instituted under the act. It says that in such proceedings the court shall appoint commissioners whose award, when confirmed, shall be final; the confirmation referred to in this context meaning obviously the exercise of discretion upon a judicial review of the award of the commissioners. 1 Words and Phrases, Fourth Series, 185, 499; 4 Corpus Juris, 1462; 20 Corpus Juris, 1041.

Whether the language is compatible with trial of the amount of damages by jury is the point we do not decide. Reference is only to the fact that the act itself does not by its terms confer the right to such trial upon the property owner. As the right to jury trial on the amount of her damages was not conferred upon the appellee, Price F. Hess, by the Flood Control Act itself, and she was therefore compelled to and did rely upon the provisions of the Conformity Act to justify her demand for jury trial, it was incumbent upon her to point out Missouri law in conformity with which the federal court would be called on to impanel a jury in her case.

Examination of the relevant Missouri constitutional provisions and statutes does not disclose that the right of jury trial is accorded generally to individual persons whose property is taken in condemnation proceedings in that state, either upon the issue of public use, article 2, § 20, Constitution of Missouri; City of Savannah v. Hancock, 91 Mo. 54, 3 S. W. 215; Cape Girardeau v. Houck, 129 Mo. 607, 31 S. W. 933; or on the issue of the measure of compensation, article 2, § 21, and article 12, § 4, Id. The provisions of the Constitution as to eminent domain relevant to this case, in which only the ascertainment of the amount of compensation is involved, are:

Article 2, § 21. "Private property for public use — compensation. — 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 prescribed 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. The fee of land taken for railroad tracks without consent of the owner thereof shall remain in such owner, subject to the use for which it is taken."

Article 12, § 4. "Eminent domain, right of State in corporation property — trial. — The exercise of the power and right of eminent domain shall never be so construed or abridged as to prevent the taking, by the General Assembly, of the property and franchises of incorporated companies already organized, or that may be hereafter organized, and subjecting them to the public use, the same as that of individuals. The right of trial by jury shall be held inviolate in all trials of claims for compensation, when in the exercise of said right of eminent domain, any incorporated company shall be interested either for or against the exercise of said right."

Price F. Hess being an individual person and no incorporated company being interested within the meaning of the provision, it is apparent that the Missouri Constitution gives no support to her demand for jury trial. Numerous statutory enactments in Missouri are annotated¹ indicating provisions made by the Legislature of the state for the exercise of the right of eminent domain by various parties for various purposes. It appears that in condemnation proceedings prosecuted by utility corporations there is, conformable to the constitutional requirement, a right to trial by jury on the issue of the amount of damages. K. C., C. & S. Ry. v. Story, 96 Mo. 611, 10 S. W. 203; Chicago, M. & St. P. Ry. v. Randolph Town-Site Co., 103 Mo. 451, 15 S. W. 437; Chicago, S. F. & C. Ry. v. Miller, 106 Mo. 458, 17 S. W. 499; Chicago, S. F. & C. Ry. v. McGrew, 113 Mo. 390, 21 S. W. 201; S. M. & A. R. Co. v. Woodard, 193 Mo. 656, 92 S. W. 470; St. Louis, M. & S. E. Ry. v. Drummond Realty & Inv. Co., 205 Mo. 167, 103 S. W. 977, 120 Am. St. Rep. 724; St. Louis, etc., Ry. v. Pfau, 212 Mo. 398, 111 S. W. 10; article 12, § 4, Constitution of Missouri. On the other hand, in condemnation proceedings by cities of certain classes, the compensation is to be arrived at by award of commissioners reviewable by the court, without a jury. There are many cases cited from Missouri in which determination of compensation on condemnations have been finally made by the courts upon awards of commissioners reviewed and settled without jury trials. St. Louis v. Smith, 325 Mo. 471, 30 S.W.(2d) 729, April Term 1930; St. Louis v. Schopp, 325 Mo. 480, 30 S.W. (2d) 733; Kansas City v. Vineyard, 128 Mo. 75, 30 S. W. 326; Kansas City v. Smart, 128 Mo. 272, 30 S. W. 773; St. Joseph v. Geiwitz, 148 Mo. 210, 49 S. W. 1000; Louisiana & Frankford Plankroad Co. v. Pickett, 25 Mo. 535. It appears that the condemnation proceedings in Missouri in which jury trial is of right to the owner of the property are cases in which railroads, utilities, and the like corporations are the moving parties, or in which the owners of the properties condemned are corporations, and in special cases where jury trials are specifically provided for; but the fixing of compensation upon awards of commissioners to be approved or confirmed by the court and without jury trial is familiar practice sanctioned by law in Missouri. The United States government is not an entity analogous to profit earning corporations, or within the purview of the statutes prescribing the mode of condemnation proceedings applicable to such corporations.

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