Opinion
No. 32842.
October 18, 1937.
1. HIGHWAYS.
In proceeding for closing road where question whether road was private rather than public road was not raised or passed upon by county board of supervisors or circuit court issue could not be considered in Supreme Court (Code 1930, section 214; Const. 1890, section 170).
2. HIGHWAYS.
County board of supervisors has authority to close and discontinue a public road (Const. 1890, section 170).
3. EMINENT DOMAIN.
Neither the state nor any of its political subdivisions is required to tender in actual cash just compensation for property taken or damaged in eminent domain proceeding, and the requirement of just compensation in advance is satisfied when public faith and credit are pledged to a reasonably prompt ascertainment of payment and there is adequate provision for enforcing the pledge (Const. 1890, section 17).
4. EMINENT DOMAIN.
Abutting property owners damaged by closing of public road have adequate remedy (Const. 1890, section 170).
ON SUGGESTION OF ERROR. (Division B. Nov. 15, 1937.) [ 176 So. 910. No. 32842.]1. HIGHWAYS.
In proceeding to close road, where question whether road was private rather than public road was not raised or passed upon by county board of supervisors or circuit court, issue could not be considered in Supreme Court (Code 1930, section 61).
2. APPEAL AND ERROR.
The Supreme Court will not review another and a different case from that presented in the lower tribunals.
3. APPEAL AND ERROR.
A suggestion of error, charging that, from original opinion, attorneys and the people did not know what to depend upon as to what the law was or what the courts would say on any legal proposition, that even the Constitution might be set aside at the pleasure of the courts, and that "it is no wonder the American people are fast beginning to have no respect for the Constitution or the laws," was improper.
APPEAL from the circuit court of Jackson county. HON.W.A. WHITE, Judge.
H.B. Everitt, of Pascagoula, for appellants.
The court erred in affirming the order of the board in the matter of its order failing to show the jurisdictional fact that the road was a public road and, as such, under the jurisdiction of the board.
The court erred in affirming the order of the board of supervisors in that the order was in violation of Section 170 of the Constitution of the State of Mississippi, the board of Supervisors failing to follow Section 6340 of the Code of 1930.
The board of supervisors failed to do the several things required by Section 6340 of the Code of 1930 under which they were proceeding.
It was perfectly manifest to the court that the order of the board of supervisors was in violation of Section 17 of the State Constitution forbidding that "private property shall not be taken for public use except on condition that the damage be first paid to the person being damaged."
The board of supervisors had no authority for closing this road either by the acts of the Legislature or the Constitution to the damage and deprivation of ingress and egress from abutting property owner as was shown in this case.
There are no cases that we can find that give the board of supervisors the authority to close a public road. The cases holding that the board had the right to abandon or discontinue a public road of the county were rendered prior to the Constitution of 1890 providing that private property should not be taken or damaged except on the ascertainment and payment of the damage being done for public use in a manner to be provided by law. In the case of the abandoning or discontinuing of a public road resort would be either to the proceeding provided by Section 6340 or eminent domain proceedings.
Nicholson v. Stockett, Walker 67; Hatch v. Board of Supervisors, 56 Miss. 26; Hinton v. Perry Co., 84 Miss. 536, 36 So. 565; Ferguson v. Board of Supervisors, Wilkinson County, 149 Miss. 623, 115 So. 778; Craft v. DeSoto Co., 79 Miss. 618, 31 So. 204; Aden v. Issaquena County, 142 Miss. 696, 107 So. 753; Board of Supervisors, Lowndes Co. v. Ottley, 146 Miss. 118, 112 So. 466; City of Laurel v. Rowell, 84 Miss. 435, 36 So. 543; Herrod v. Carroll Co., 162 Miss. 78, 138 So. 800; Kwong v. Levee Comrs., 164 Miss. 250, 144 So. 693; Parker v. State Highway Commission, 173 Miss. 213, 162 So. 162.
Otto Karl Wiesenburg, of Pascagoula, for appellants.
The first question is whether the circuit court erred in construing the order of the board of supervisors closing the road as an order "abandoning the same as a public road." We submit that the circuit court did err. Neither under Section 6345, if this case is controlled by Section 6340 of the Code of 1930, nor under Section 61 of the Code of 1930, does the circuit court, as an appellate court, have the power to construe an order of the board of supervisors as something other than it was obviously intended to be.
4 C.J.S. 39; C.J.S., Appeal and Error, sec. 1874, par. 2; Section 61, Code of 1930; Shapleigh H.A. Co. v. Brumfield, 130 So. 98, 159 Miss. 75.
A judgment or decree will not be modified by an appellate court so as to give improper relief.
C.J.S., Appeal and Error, sec. 1879.
The petition on which the board made its order, on its face, did not confer jurisdiction upon the board of supervisors. There is no allegation in the petition that the road sought to be closed is a public road.
4 C.J.S., Appeal and Error, sec. 41, pages 122, 123; 2 Am. Jur., Appeal and Error, sec. 11; Tegarden v. McBean, 33 Miss. 283; Willis v. Reid, 38 So. 793, 86 Miss. 446; Jenkins v. McQuaid, 120 So. 814, 153 Miss. 185; Burnely v. Mullins, 38 So. 635, 86 Miss. 441; Rylee v. State, 63 So. 342, 106 Miss. 123.
The constitutional and statutory powers granted the board of supervisors do not include the acquisition of any property whatsoever for school purposes.
Sec. 170, Constitution of 1890; Chapter 9, Code of 1930; Adams v. First National Bank, 60 So. 770, 103 Miss. 744; State v. Board of Sup'rs, Grenada County, 105 So. 541, 141 Miss. 701; Tallahatchie Drainage Dist. No. 1 v. Yacona-Tallahatchie Drainage Dist. No. 1, 114 So. 264, 148 Miss. 182; Green v. Board of Sup'rs., Adams County, 161 So. 139, 172 Miss. 573.
The Fourteenth Section of the Constitution of the State of Mississippi provides "No person shall be deprived of . . . property except by due process of law." Considering that this is an ex parte proceeding, without notice to abutting landowners, and without providing for compensation first to be made, we submit that the action of the board violates this section.
Jack v. Thompson, 41 Miss. 49; State v. Woodruff, 150 So. 760, 170 Miss. 744.
Due course of law requires actual notice to known resident defendants.
Brown v. Levee Comrs., 50 Miss. 468; Section 24 of the Constitution.
The fourth question is whether Section 6340 of the Code of 1930 is the proper statutory proceeding governing the case of closing a road. Although it has been said that in the abandoning of a road or vacating of a road, the board of supervisors is not bound by Section 6340, Nicholson v. Stockett, 1 Walker (Miss.) 67; Noxubee County v. Long, 106 So. 83, 141 Miss. 72; Berry v. Board of Sup'rs, Jefferson Davis County, 126 So. 405, 156 Miss. 629; we submit to the court that in the matter of closing a road Section 6340 applies, since it comes within the meaning of the words "altered" or "changed" as set out in that section (Section 6340) and that an entirely different rule governs the closing of a highway as differentiated from the abandoning of a highway as determined in the following cases:
Town of Hazlehurst v. Mayes, 36 So. 33, 84 Miss. 7; Laurel Improvement Co. v. Rowell, 36 So. 543, 84 Miss. 435; Funderburk v. City of Columbus, 78 So. 1, 117 Miss. 173; City of Jackson v. Wright, 119 So. 315, 115 Miss. 829; Berry v. Town of Mendenhall, 61 So. 163, 104 Miss. 94 ; Goldstein v. Board of Levee Comrs., 140 So. 721, 165 Miss. 724; Theobold v. Louisville N.O. T. Ry., 6 So. 230, 66 Miss. 279.
If Section 6340 controls, the entire proceedings of the board were void not only for failure to adjudicate the necessary jurisdictional facts, but also because of their complete failure to follow the statute.
Ferguson v. Steward, 111 So. 596, 146 Miss. 613; Craft v. DeSoto County, 31 So. 204, 79 Miss. 619; Aden v. Board of Sup'rs., Issaquena County, 107 So. 753, 142 Miss. 696; State v. Morgan, 31 So. 338, 79 Miss. 659.
Section 17 of the Constitution provides that "private property shall not be taken or damaged for public use except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law." "Compensation must precede the seizure of property for public uses."
Thompson v. Grand Gulf R. Co., 3 Howard 240; Levee Board v. Dancey, 65 Miss. 335, 3 So. 568; Pearson v. Johnson, 54 Miss. 259; Alabama R. Co. v. Bloom, 71 Miss. 247, 15 So. 72.
Landowner is entitled to benefit of doubt of right to exercise power of eminent domain.
Ferguson v. Board of Sup'rs., Wilkinson County, 115 So. 779, 149 Miss. 623.
The record in this case clearly shows that an abutting landowner, without any other means of ingress and egress to his property than said road, opposed the proposal to change the road, and, as a matter of fact, is an appellant herein. That he had a vested property right in the road, which he could not be deprived of unless compensation was first made, has been clearly established by this court.
Laurel v. Rowell, 84 Miss. 435; Robinson v. Vicksburg, 99 So. 439, 54 So. 858; Morris v. Covington County, 118 Miss. 875; Funderburk v. City of Columbus, 117 Miss. 173; Jackson v. Monroe County, 124 Miss. 264; Tishomingo County v. McConville, 139 Miss. 589, 104 So. 452; Parker v. State Highway Commission, 173 Miss. 213, 162 So. 162; Vicksburg v. Herman, 72 Miss. 211, 16 So. 434; Ham v. Board Levee Comrs., 83 Miss. 534, 35 So. 943; Yazoo M.V.R. Co. v. Lefoldt, 83 Miss. 317; City of Jackson v. Williams, 92 Miss. 301, 46 So. 551; White's Garage v. City of Poplarville, 153 Miss. 683, 121 So. 295; Kosciusko v. Jenkins, 164 Miss. 235, 144 So. 467. 12 C.J., 732, sec. 114; Section 17 of the Constitution; Sections 1480, 6361 and 6340, Code of 1930; King v. Sections 1480, 6361 and 6340, Code of 1930; King v. Vicksburg Ry. Light Co., 42 So. 204, 88 Miss. 456, 6 L.R.A. (N.S.) 1036, 117 A.S.R. 749; Hill v. Woodward, 57 So. 294, 100 Miss. 879, 39 L.R.A. (N.S.) 538, Ann. Cas. 1914A 390; Thompson v. Grand Gulf R.R. Banking Co., 3 How. (4 Miss.) 240; Penrice v. Wallis, 37 Miss. 172; Pearson v. Johnson, 54 Miss. 259.
Although the jurisdiction of the board of supervisors over roads cannot be taken away by law, it may be regulated by the Legislature.
Section 170, Constitution; Paxton v. Baum, 54 Miss. 531; Seal v. Donnelly, 60 Miss. 658.
The order shows on its face that no new road was opened or provided "in all respects fit for travel," although the old road was ordered closed.
Jackson v. St. Louis S.F. Ry., 81 So. 796, 120 Miss. 149.
H.P. Heidelberg, of Pascagoula, for appellee.
We believe that the law in Mississippi is well fixed and too well known for argument that the board of supervisors, if in their opinion the public interest so demands, can close, discontinue or whatsoever term you desire to use, in order to discontinue a road that is strictly a county road and not a state highway. In doing so the board, of course, makes the county liable for any damages that an abutting property owner may sustain by the so-to-speak killing of such roadway; and by whatever authority the board acted under in dealing with the road involved in this case the appeal from the board to the circuit court was evidently taken, by the attorney representing the appellants at the time, under Section 6345 of the Code because such appeal only asks for a review by the circuit court of the matters of law arising on the face of the proceedings and not on the question of damages that might be sustained by J.E. Lockard or any other abutting property owner, because no damages were asked for the appeal.
As to whether or not the circuit court had authority to correct the judgment of the board of supervisors, we submit that the circuit court acted correctly in first correcting and then affirming the action of the board of supervisors. We find the general rule to be that "where upon the whole record it appears that the merits of the cause have been fairly tried and determined and substantial justice has been done by the judgment of the trial court, it will be affirmed."
4 C.J., 1131; 5 R.C.L. 260; Board of Sup'rs., Forrest County v. Melton, 123 Miss. 598, 86 So. 369.
We submit that the circuit court acted within its power in first correcting the wording of the order of the board and, second, entering the proper judgment.
By assuming for the sake of argument that the road was a county road and under the jurisdiction of the board, then could the board abandon the road without a petition of a certain number of freeholders? We contend that the abandoning of a road is different from laying out, altering or changing a road. Laying out a road must of necessity mean the creation, bringing about and construction of an entirely new road.
The board did make a finding as to the road being a public road and we contend that having found, from the evidence offered before it, that the "short cut road" was a public road and since, as we contend, it was not necessary to have a petition to abandon the road if the board even without a petition was convinced that the public interest and convenience required said road to be abandoned and the order of the board, we submit that was a sufficient finding to and did give the board jurisdiction for all purposes.
It seems to me that counsel have confused or else have not observed the distinction between eminent domain as referred to in the statutes as well as the Constitution and damages in connection with the closing of road. The procedure is clear and distinct, the board of supervisors cannot go out and take property for highway purposes or other public purposes without first making due compensation to the owner, but in the abandonment of the road as in the case at bar, or as in other cases cited by counsel in their brief, such as White v. Poplarville, 153 Miss. 121, and Funderburk v. Columbus, 117 Miss. 173, the same is true of City of Jackson v. Wright, 115 Miss. 829, 119 So. 315. All of these cases were where streets and roads had been abandoned or the level changed so as to damage the abutting property owner on the street or road closed and they were allowed damages but nowhere is there said or intimated anything about notice in connection with these claims and they are all suits filed for the purpose of obtaining damages, not appeals in cases of this kind.
Argued orally by Otto Karl Wiesenburg, for appellant, and by H.P. Heidelberg, for appellee.
Undoubtedly, if this was a private road, the Board of Supervisors was without jurisdiction; on the other hand, if it was a public road, under section 170 of the Constitution and section 214, Code of 1930, it has jurisdiction.
Appellants' contention that it was not shown to be a public road comes too late. That question was neither raised nor passed on by the Board of Supervisors or the circuit court. In the entire proceedings it was treated as a public road. Some of the petitions against its closing described it as a public road (record pages 13, 15 and 16), and the Board of Supervisors and the circuit court in their orders referred to it as a public road. It is too late now to make that an issue.
Legislation authorizing the closing and discontinuance of a public road was not necessary. Such authority is given by section 170 of the Constitution, but we also have legislative authority in section 214, Code of 1930. Berry v. Board of Supervisors, 156 Miss. 629, 126 So. 405. Under section 17 of the Constitution neither the state nor any of its political subdivisions is required to tender in actual cash just compensation for the property taken or damaged in an eminent domain proceeding. The requirement of just compensation in advance is satisfied when the public faith and credit are pledged to a reasonably prompt ascertainment of payment and there is adequate provision for enforcing the pledge. Hinds County v. Johnson, 133 Miss. 591, 98 So. 95; State Highway Commission v. Buchanan, 175 Miss. 157, 165 So. 795, 166 So. 537.
If abutting property owners were damaged in the closing of the road, they still have their remedy under the Berry Case.
Affirmed.
We apprehend that counsel have not understood the opinion rendered in this case; they have instead erected a straw man and have valiantly attacked him in their suggestion of error. The record shows that both sides, the petitioners and the contestants, substantially averred in their representations to the board that the road in question was a public road, and the issue presented to the board, as shown by the bill of exceptions filed in the circuit court, was not whether the road was a public road, but whether it should be closed. The circuit court was confined in its determination to "the case as presented by the bill of exceptions," section 61, Code 1930, and we are not to review here another and a different case from that presented in the lower tribunals.
We note that counsel say that our original opinion is of such character that lawyers and the people do not know what to depend upon as to what the law is or what the courts are going to say upon any legal proposition; that even the Constitution may be set aside at the pleasure of the courts, and that it is no wonder the American people are fast beginning to have no respect for the Constitution or the laws. Although rarely, we have nevertheless sometimes seen similar expressions in suggestions of error. The office of a suggestion of error is to furnish light, not heat; and there ought to be no difference of opinion that expressions such as above mentioned, are improper, whether in or out of court.
Suggestion of error overruled.