Vinegar Bend Lumber Co. v. Oak Grove & G.R. Co.

• Decision Date: 25 March 1907
• Docket Number: 12,370
• Citation: 89 Miss. 84,43 So. 292
• Parties: VINEGAR BEND LUMBER COMPANY v. OAK GROVE & GEORGETOWN RAILROAD COMPANY
• Court: Mississippi Supreme Court

43 So. 292

89 Miss. 84

VINEGAR BEND LUMBER COMPANY v. OAK GROVE & GEORGETOWN RAILROAD COMPANY

No. 12,370

Supreme Court of Mississippi

March 25, 1907

FROM the circuit court of Greene county, HON. WILLIAM H. HARDY Judge.

The railroad company, the appellee, was plaintiff in the court below; the lumber company, the appellant, was defendant there. From a judgment in plaintiff's favor condemning land (as was claimed) to a public use, the defendant appealed to the supreme court. The facts are fully stated in the opinion of the court.

Affirmed.

Ford &amp White; Charles L. Bromberg, and McWillie & Thompson, for appellant.

Private property cannot be taken for public use at all except in the manner prescribed by law. Give full force to these six words "in the manner prescribed by law." If the legislature has not prescribed a lawful manner, a constitutional manner, by which private property can be taken for public use, then it cannot be taken at all.

The constitution provides that whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be a judicial question. What does the phrase, "and whenever an attempt is made to take private property" mean? Does it mean when some trespasser, with high hand and multitude of people, undertakes to drive the land owner from his premises? Certainly not. It means whenever an attempt is made to take private property in the manner prescribed by law, referred to in the preceding part of the constitutional section. So, the constitutional provision means that whenever an attempt is made to take private property for a public use in the manner prescribed by law, the question whether the contemplated use be public is a judicial one.

Doing full justice to the appellee and admitting all it claims this was a proceeding by it in the manner prescribed by law to condemn private property to an alleged public use, and by the very terms of the constitution the question whether the use be a public one, presented in the special tribunal created in the manner prescribed by law, is a judicial question to be determined, of course, in that proceeding and in that judicial tribunal. The legislature is required by law to prescribe a mode in which private property may be taken for a public use, but it is enjoined by the constitution itself to provide that the question of whether the use be public in such a proceeding shall be a judicial one. The very terms of the constitution makes the conclusion inescapable that the tribunal established for the purpose of enabling those claiming the right to subject private property to public use shall have the power to determine whether the alleged use be or be not a public one.

There is nothing in the code chapter entitled "Eminent Domain" which precludes the citizen, when another seeks to subject his property to an alleged public use, from contesting the nature of the use before the tribunal established by law for the regulation of the taking of private property for public use. On the contrary, Code 1906, § 1862; Code 1892, § 1687, shows that an issue must be ready for trial before a jury is organized. After the court is organized, evidence may be introduced by either party (Code 1906, § 1864; Code 1892, § 1689), before the jury under the direction of the justice of the peace. The justice of the peace controls and exercises judicial functions over the matter of evidence at least. Section 17 of the constitution makes the question of whether the alleged use be public a judicial one. Are not judicial questions to be decided by the court and not by the jury?

The appellee does not give sufficient force and effect to the provisions of sec. 17, constitution 1890, providing that in proceeding to condemn private property for public use, "the question whether the contemplated use be public shall be a judicial question and as such determined without regard to legislative assertion that the use is public." Before the adoption of the Constitution of 1890 the question was perhaps to some extent legislative. It never was an executive question. Now, it is most unquestionably a judicial question. Every person whose property is sought to be taken for public use has a right to have the question of the character of the use determined by a court. This right cannot be taken away from the citizen without doing violence to the constitution itself. The appellee claims the right to exercise the power of eminent domain by virtue of a charter which has been approved by the governor and attorney-general. These executive officers do not grant the powers which the law invests in corporations; such powers are conferred by the legislature, the governor and attorney-general being mere instrumentalities by which the regularity of the application for incorporation is certified, but when certified the rights of the appellee, the corporation, are derived from the statute; in the present instance the rights of the appellee are derived from the provisions of the Code of 1892.

The legislature has provided a court for the determination of eminent domain proceedings. It has not expressly provided that it shall hear and determine the judicial question mentioned in section 17 of the constitution, but it has so provided by necessary implication because, without the power in some court to hear and determine that question, the constitution is infringed upon and the whole statutory eminent domain scheme must fall to the ground. If the provision in the code for the incorporation of railroads and the chapter therein on the subject of eminent domain be treated as a circumvention of section 17 of the constitution, they must fail and the constitution be upheld.

In short, the question in this case is whether section 17 of the constitution shall be given full force or whether the code provisions referred to are to be construed in such a way as to conflict with the constitution. The constitution and the statutes can both stand and be harmonized, on the idea that the court created by the legislature for the determination of eminent domain proceedings has the power to determine judicial questions arising in the progress of such proceedings. The question which the constitution makes a judicial one arises only in such proceedings. Why contend that it cannot be decided in the eminent domain court? There can be no trouble in construing the statutes so as to render it constitutional and save the property owner's constitutional right.

Early in the history of New York a statute was passed by the legislature which declared that the question whether a proposed highway was a necessity should be a judicial one. The validity of the statute was assailed, but its constitutionality was maintained by the court of New York, and speaking of this statute, it was said by the court In re New York Central Railroad Co., 66 N.Y. 407: "This necessity is therefore made a judicial question, and when controverted it is obvious that the facts must in some form be laid before the court to enable it to decide."

The courts of New York have uniformly held that the statute, making the question of the necessity of the condemnation of land for a public road a judicial one committed to the tribunal having jurisdiction in the matter of the laying out of roads the determination of that judicial question, and all of them sanction the proposition that the necessity for opening a highway was by the statute committed to the decision of a judicial tribunal.

Our constitution makes the question of the use a judicial question. The New York statute made the necessity a judicial question. New York decisions all hold that the question of the necessity under the statute could be litigated in the condemnation proceeding or upon appeal therefrom. Why cannot the question of the use be litigated in Mississippi under our constitution in the condemnation proceeding or in the circuit court upon our de novo appeal?

The fourteenth amendment to the constitution of the United States provides that no state shall make or enforce any law which shall deprive any person of life, liberty or property without due process of law, and our state constitution (constitution 1890), sec. 14, provides that no person shall be deprived of life, liberty or property except by due process of law.

The federal courts have generally held that all eminent domain proceedings, wherein the pleadings are properly framed, present a federal question, and that the supreme court of the United States will inquire whether such proceeding deprives the defendant of property without due process of law. Davidson v. New Orleans, 96 U.S. 97 (especially the concurring opinion of Justice BRADLEY). The essentials of due process of law in eminent domain proceedings must exist. Notice must be given to the party whose property is sought to be taken. There must be an impartial tribunal of competent jurisdiction, and there must be a regular, orderly and uniform method of procedure for the determination of the questions involved, with an opportunity to be heard on the part of the land owner. See also 2 Abbott's Municipal Corporations, sec. 748. It will be observed that the tribunal must be one of competent jurisdiction, that the procedure must be adapted to the determination of the questions involved, and that the land owner must have opportunity to be heard.

This is true, generally speaking, but under our constitution it is inescapably true. If it be decided by this court that an eminent domain court under the code chapter on that subject and the circuit court upon an appeal therefrom, are both without authority to hear and determine the question as to whether the proposed use were or were not a public use, then the decision will strike down as violating ...