Opinion
No. 33938.
January 15, 1940. Suggestion of Error Overruled February 12, 1940.
1. PROHIBITION.
The statute making prohibition applicable to determine certain questions in condemnation proceedings is the exclusive authority for writ of prohibition restraining such proceeding except in cases of want of jurisdiction in the eminent domain court (Code 1930, sec. 1510).
2. PROHIBITION.
Under statute providing that appeal from denial of writ of prohibition to restrain condemnation proceeding shall not operate as a supersedeas, such an appeal was dismissed as involving "moot questions," where, pending appeal, eminent domain court had proceeded to final judgment and highway had been constructed and used thereunder (Code 1930, sec. 1510).
3. PROHIBITION.
Under statute providing that appeal from denial of writ of prohibition to restrain condemnation proceeding shall not operate as a supersedeas, landowner has no remedy by prohibition where his petition for such a writ is denied, unless denial is reversed before final judgment is rendered in condemnation proceeding (Code 1930, sec. 1510).
ON SUGGESTION OF ERROR. (Division A. Feb. 12, 1940.) [193 So. 624. No. 33938.]1. EMINENT DOMAIN.
The enactment of statute making prohibition applicable to determine certain questions in condemnation proceedings did not displace previously-existing right of resort to equity for injunction (Code 1930, sec. 1510).
2. EQUITY.
Where jurisdiction in equity has been established, a new statute giving jurisdiction at law upon the same matter does not oust the original equity jurisdiction unless the statute plainly and affirmatively so declares and unless the new legal remedy is as complete, as full, and as efficient in all respects as was formerly available in equity.
3. PROHIBITION.
Property owner who did not resort to a bill for injunction to restrain prosecution of condemnation proceeding as he had a right to do, but availed himself of new statute making prohibition applicable to determine certain questions in condemnation proceedings, was required to abide the statute as he found it (Code 1930, sec. 1510).
APPEAL from the circuit court of Harrison county; HON. L.C. CORBAN, Judge.
On suggestion of error. Suggestion of error overruled. For former opinion, see 193 So. 4.
E.R. Holmes, Jr., Assistant Attorney-General, for the appellee on motion to dismiss.
Comes the State Highway Commission of Mississippi, appellee in the above styled cause, and moves this honorable court to dismiss this cause for the reason that it presents a moot question to this court, there now being no justiciable issue before this court for it to decide.
Gardner Backstrom, of Gulfport, for appellant.
The question involved in this case is not moot for the following legal reasons, to-wit:
(a) The county court of Harrison County, Mississippi, sitting as a court of eminent domain, has, under section 693 of the Code of 1930, exactly the same jurisdiction as a special court of eminent domain organized under Chapter 26 of the Code of 1930, and no more. The county court, therefore, has no jurisdiction to adjudicate any question involving the right to exercise the power of eminent domain, except the amount of the damages to be awarded.
(b) Appeals from the county court, sitting as a court of eminent domain, are, under the provisions of section 704 of the Code of 1930, prosecuted to the circuit court on the record made in the county court, that is to say, on assignments of error and bills of exception. Neither the circuit court nor this court can review any question not decided by the county court sitting as a court of eminent domain.
City of Hattiesburg v. Pritchett, 160 Miss. 342, 134 So. 140; State v. Carraway, 160 Miss. 263, 134 So. 846; Miss. State Highway Dept. v. Haines, 162 Miss. 216, 139 So. 168.
(c) It is obvious that the right to exercise the power of eminent domain in any given case, whether the statutory prerequisites to the exercise of that power have been observed, whether that power is being exercised in the statutory way, whether the exercise thereof is within the statutory delegation of that power, and whether the exercise thereof is subject to the limitations delegating that power, are judicial questions subject to adjudication by some court having jurisdiction to do so. Otherwise, it is obvious that due process would be violated. Compensation is not due process, and private property cannot be taken for a public use on compensation alone. The property owner must be afforded his day in court where he can contest the entire condemnation proceedings, or due process may as well be interred once for all. The appeal from the special court of eminent domain organized under Chapter 26 of the Code of 1930 is to the circuit court where a trial de novo is had. The circuit court has jurisdiction to adjudicate all questions involved in the condemnation. If the statutes of Mississippi confer upon the condemnee the power of final interpretation of the statutes conferring the power of eminent domain, the right to proceed in the county court in term time where a jury must be empaneled to try the issue of damages, or to proceed in vacation before the judge of the county court in vacation, where a jury cannot be empaneled, for lack of statutory authority, as held in the Haines case, supra, to settle the only question of which that court has jurisdiction, due process as well as equal protection of the law is already buried.
(d) It is perfectly plain that the statutes vesting in the county court only the jurisdiction exercised by justices of the peace, namely to assess the damages, and providing that appeals therefrom should be on assignments of error and bills of exception with no provision whatever for the trial of any other issue in eminent domain in any court violated due process unless the common law writ of prohibition saved the constitutionality of the county court's jurisdiction in eminent domain proceedings. In the case of City of Greenwood v. Humphreys, 182 Miss. 91, 179 So. 862, this court held that Section 1510 extended the scope of the writ of prohibition, leaving the common-law grounds therefor in full force.
(d) From the foregoing it is plain that the identical question raised by the motion to dismiss the appeal in this case because of a moot question is whether or not the condemnor may, by condemning and appropriating the land, after the refusal of the circuit court to issue a writ of prohibition, either in temporary or final form, destroy the statute, Section 1510 of the Code of 1930, insofar as the condemnee's right of appeal is concerned. If that position be sound, the condemnor is a favored suitor, and is entitled to a review of the decision of the lower court if adverse to the condemnor, while the same right is denied to the condemnee. It is needless to say that this would violate the equal protection of the law provision of the federal constitution.
Gardner Backstrom, of Gulfport, for appellant on Suggestion of Error.
The court erred in ruling that Section 1510 of the Code of 1930 does not mean what its unambiguous language imports; that is to say, that section grants to the condemnee the unconditional right of appeal from an adverse ruling by the circuit court denying his petition for a writ of prohibition, whether the condemnation shall proceed or not. This court ruled that such right was provided for only in the event the condemnor elected not to proceed with the condemnation and appropriation of the land sought to be condemned. This ruling sliced an unambiguous statute in half, retained one-half, and repealed the other half. This was error.
If Section 1510 of the Code of 1930 means what this court has construed it to mean, then it should be stricken down in its entirety as granting a preference in favor of one suitor over another. As construed in this case it undoubtedly means that the condemnor is a favored suitor over the condemnee. The condemnor is granted an absolute right of appeal which is only conditionally granted to the condemnee. That much is known and read of all men. Such a statute is unconstitutional as granting a preference to one suitor over another. Our law, under the decision in this case, is in this attitude: The county court has jurisdiction only of the amount of the damage to be awarded. The circuit court, on appeal, can review no other question. This court, on appeal, can do no more. The judicial determination of the public necessity for the taking is written out of the constitution.
In the language of the court in this case, Section 1510 of the Code of 1930 safely "guards in" the interest of the public. But by the same decision the same statute safely guards out all rights antagonistic to the rights of the public. Notwithstanding the fact that the primary purpose of free government is to safeguard the rights of the governed, yet, when those rights are in seeming conflict with alleged rights of the public, in the language of the poet, "Hills peep o'er hills and Alps on Alps arise."
If we interpret aright the decision in this case the court holds the prime purpose of the enactment of Section 1510 is to protect the public interest against delay in condemnation proceedings, which view does violence to the wording and purpose of the statute. Evidently it was enacted to guarantee the condemnee the right afforded by a writ of prohibition if the condemnor was proceeding to take his land in a manner not authorized by law. That right has now been destroyed by the decision of the court, for the direct result of the decision is that it is of no consequence how illegal the condemnation proceedings are, the land owner has no redress by writ of prohibition because his property has already been taken from him and part thereof put to a public use. No part of the land involved was taken possession of by the Mississippi State Highway Commission, or put to a public use, until after the circuit court had refused to grant a writ of prohibition. This court has now denied the condemnee the right of appeal granted him by Section 1510, in effect repealing or annulling that section by judicial fiat. Such a construction of that section gives the condemnor the right to take land without due process and contrary to statutory procedure, which wrongful taking is upheld by this court in the face of a due application for a writ of prohibition to stop such unlawful taking on the ground that the grant of the writ would cause a delay in the condemnation proceedings. Such intended delay is the intended purpose of the prohibition and the purpose the legislature had in mind when it enacted Section 1510 in cases where condemnation proceedings were being conducted contrary to our statutes.
The decision of the court places it within the power of the Mississippi State Highway Commission, in any case, to nullify Section 1510 by speeding an eminent domain court to make an award and take possession of the land pending on appeal from a circuit court denying the issuance of a writ of prohibition. Then when on appeal the case reaches this court it can complacently contend that the issues involved are moot.
The appellant, the State Highway Commission, filed its application in the County Court of Harrison County for the condemnation of certain land belonging to appellant Dantzler for the construction of a public highway known as Beach Development, Section B, U.S. Highway No. 90. Appellant thereupon made application under Section 1510 of the Code of 1930 to the circuit court for a writ of prohibition restraining the county court and the Highway Commission from further proceeding in the prosecution of said condemnation proceeding. The Highway Commission appeared and demurred to the petition; the demurrer was sustained; and the petition dismissed, from which judgment this appeal is prosecuted. Section 1510 is in this language: "The legal remedy by way of prohibition is made applicable for the purposes of testing the questions (1) whether the applicant seeking to exercise the right of eminent domain is, in character, such a corporation, association, district or other legal entity as is entitled to the right, and/or (2) whether there is a public necessity for the taking of the particular property or a part thereof which it is proposed to condemn. All the provisions in the chapter on Quo Warranto, so far as may be, shall apply to the procedure under this section; and the petition for the writ may be filed by any defendant in the condemnation proceedings, and the hearing shall be in vacation when the public interest is such as to require an expeditious trial. Upon the filing of a petition under this section the circuit judge shall issue a temporary order staying the hearing in the court of eminent domain until the cause can be tried under this section by the circuit judge, and if on the hearing last aforesaid the petition be sustained a permanent writ of prohibition shall issue. An appeal may be taken to the Supreme Court as in other cases, but if the judgment of the circuit judge be to deny the petition, the appeal aforesaid shall not operate as a supersedeas, and the court of eminent domain may nevertheless proceed."
This statute is the exclusive authority for a writ of prohibition restraining a condemnation proceeding, except in cases of a want of jurisdiction in the eminent domain court. Barnes v. McLeod, 165 Miss. 437, 140 So. 740; Crittenden v. Town of Booneville, 92 Miss. 277, 45 So. 723, 131 Am. St. Rep. 518. That jurisdiction is unquestioned in this case.
Pending the appeal to this Court, the eminent domain court (the county court) proceeded to a final judgment condemning the right-of-way sought, and in addition, the Highway Commission constructed the highway thereon, which is now used by the traveling public. These facts are brought to the attention of this Court by proof, which is unquestioned, by the appellant. Along with such proof, the Highway Commission made a motion to dismiss the appeal upon the ground that the questions involved are moot.
Under the statute, if the petition is sustained, a permanent writ of prohibition issues, and an appeal may be taken to the Supreme Court as in other cases, "but if the judgment of the circuit judge be to deny the petition, the appeal aforesaid shall not operate as a supersedeas, and the court of eminent domain may nevertheless proceed." In other words, the landowner's petition for a writ of prohibition, which has been denied by the circuit judge, avails him nothing on appeal unless the Supreme Court reverses the judgment appealed from before final judgment in the eminent domain court. In such a case, if the landowner has a remedy, it is elsewhere — not by prohibition. In providing the remedy of prohibition, the statute guards in the public interest, as near as practicable, against delay in condemnation proceedings.
The motion to dismiss appeal sustained.
ON SUGGESTION OF ERROR.
Prior to the enactment of Section 1510, Code 1930, there was no way to raise and to test the questions covered by that section, except by injunction. See Vinegar Bend Lumber Co. v. Oak Grove, etc., R. Co., 89 Miss. 84, 43 So. 292. A resort to injunctive process is generally expensive and often dangerous, so that the small landowner, poor and without friends save those also poor in property, was sometimes entirely barred for want of the ability to give an injunction bond. The new statute, evidently, was designed to furnish a remedy, such as it is, within the reach of every man, — every property owner although he may own only an acre; but, as the closing sentence of that statute discloses, it had no purpose that, if the circuit court or the circuit judge in vacation decided the application thereunder against the condemnee, he could delay the public work by an appeal with supersedeas.
But the enactment of the new statute did not at all displace the previously-existing remedy and right of resort to equity by way of injunction. The rule is that where jurisdiction in equity has been established, a new statute giving jurisdiction at law upon the same matter does not oust the original equity jurisdiction unless the statute plainly and affirmatively so declares and unless, moreover, the new legal remedy is as complete, as full, and as efficient in all respects as was formerly available in equity. See cases cited 21 C.J., pp. 45, et seq.
Appellant did not resort to a bill for injunction, as he had a right to do, but availed of the new statute, and having done so he must take and abide that statute as he finds it. He could plainly see from it that if his petition thereunder were denied in the circuit court, he could not then stop the progress of the condemnation proceeding by an appeal, and that if pending the appeal the condemnor proceeded in eminent domain and thereupon took possession, neither this court nor any other court could prohibit the doing of something already actually done. Had appellant not been willing to take this risk, plainly pointed out in the new statute, he should have resorted to equity and not to the new statute.
Suggestion of error overruled.