Opinion
March 28, 1949.
1. Prohibition — eminent domain — statute providing for adjudication as to public necessity.
Sec. 2782, Code 1942, invests the circuit judge with the power, on a petition for a writ of prohibition against a party seeking to exercise the right of eminent domain, to determine in term time or in vacation whether there is a public necessity for the taking of the particular property which is proposed to be condemned, wherefore a landowner has the right to petition the circuit judge for the writ to determine the question, on the issue that there was not necessity therefor, whether the State Highway Commission could condemn his land in order to take a specified type of road material.
2. Prohibition — eminent domain — trial on the issue of public necessity — landowner not entitled to a trial by jury.
On the trial of the issue of public necessity under sec. 2782, Code 1942, the petitioner is not entitled to a jury trial, the statute expressly providing that the trial shall be by the circuit judge, and this is not altered by the general provisions of the statutes regulating proceedings in Quo Warranto, (Sec. 1141, Code 1942).
3. Prohibition — eminent domain — trial on issue of public necessity — incompetent evidence.
The trial of a petition for a writ of prohibition under Sec. 2782, Code 1942, on the issue of public necessity, evidence concerning the health of the owners of the property, damage to farming operations, and impairment of the use thereof or possible availability of other lands is not pertinent to the issue and should be excluded.
Headnotes as approved by Smith, J.
APPEAL from the circuit court of Noxubee County; J.E. CARADINE, J.
J.M. Kuykendall, Jr., Assistant Attorney General, for appellant.
The petition in this cause was filed and these proceedings were had under Section 2782, of the Mississippi Code of 1942, wherein it is provided that 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. The rest of the section deals with the procedure to be followed. This same section appeared as Section 1510, of the Mississippi Code of 1930, and since the writer has been unable to find this same act in any of the statute laws and there is no source reference given for that particular section in the Code of 1930, it is presumed that it was drafted and included by the Code Commission preparing the 1930 Code. It is interesting to note that Judge V.A. Griffith, then of the Supreme Court, was a Commissioner of that Code Commission.
What is the meaning of the second part of this statute making this extraordinary writ ordinarily confined to the question of jurisdiction of a lower tribunal, "applicable for the purposes of testing the questions . . . whether there is a public necessity for the taking of the particular property or a part thereof which it is proposed to condemn"? Section 17, of the Mississippi Constitution of 1890, provides, in addition to the limitation that compensation must be paid for the taking of private property, that "the question whether the contemplated use be public shall be a judicial question", and then in Section 190 of the same Constitution it is provided that, "the exercise of the right of eminent domain shall never be abridged . . .". A review of the cases touching on the question of the necessity of the taking of particular property for public use and interpreting this act of the legislature enlarging the scope of the writ of prohibition is necessary for an understanding of the latter. U.S. Supreme Court Decisions: The power of eminent domain in the offspring of political necessity. Kohl v. U.S., 23 L.Ed. 451. "The general rule is that the necessity or expendiency of appropriating particular property for public use is not a matter of judicial cognizance, but one for the determination of the legislative branch of the government, and this must obviously be so where the state takes for its own purposes. The state possesses the power as a sovereign, and as a sovereign exerts it. How can its citizens call on the courts to review the grounds on which the state has acted in the absence of legislation permitting that to be done?" Adirondack R.R. Co. v. People (New York) 176 U.S. 335, 20 S.Ct. 460, 44 U.S. (L.Ed.) 492. "It is also objected that the exception below is valid, wherein it was stated that all of the land of the railroad company ought to be taken, if any were to be taken. The use for which the land is to be taken having been determined to be a public use, the quantity which should be taken is a legislative and not a judicial question. Shoemaker v. United States, 147 U.S. 282-298. As to the effect of the taking upon the land remaining, that is more a question of the amount of the compensation." United States v. Gettsburg Electric R.R. Co., 160 U.S. 312, 13 S.Ct. 622, 37 U.S. (L.Ed.) 463. "It is well settled that while the question whether the purpose of a taking is a public one is judicial (citing cases) the necessity and the proper extent of a taking is a legislative question. (citing cases). The legislature may refer such issues, if controverted, to the court for decision. (Pittsburg, C.C. St. L.R. Co. v. Greenville, 69 Ohio St. 487, 69 N.E. 976). (In this case it was held that since there was no court provided to review the question equity could issue an injunction until the question of necessity could be determined). Sears v. City of Akron, 246 U.S. 242, 38 S.Ct. 245, 62 U.S. (L.Ed.) 688.
Textbook Material. Section 158 of 10 Ruling Case Law, page 183, states that it is well settled that the suitableness of the location selected to be condemned and the consequent necessity of taking the land selected for its site "all are questions exclusively for the legislature to determine, and the courts have no power to interfere or to substitute their own views for those of the representatives of the people." The next section indicates that the review of this question by the courts is limited to the determination of whether the taking was in bad faith or abuse of discretion.
In the writer's opinion there are two Mississippi cases which will explain what was attempted to be done in the drafting of what is now Section 2782 of the Mississippi Code of 1942 but will also clearly limit what could be done. Those are the cases of Ham, et al, v. Levy Commissioners, and Vinegar Ben Lumber Co. v. R.R., which will be briefly summarized with the other cases below.
The property owners sought an injunction in chancery court to restrain the Levy Board in exercising its powers of eminent domain upon the ground, among others, that the proposed construction was not as it should be in accordance with their views. Upon issuance of the injunction an appeal was had to the Supreme Court where it was held, "It is for the courts to determine that the proposed taking is for a public use, but this being so decided, it is for the commissioners to decide upon the necessity of such taking. (citing cases) Courts will interfere and review the exercise of the discretion of those to whom the power of eminent domain has been delegated by the legislative enactment only in exceptional cases — as when property is appropriated for private purposes under the guise of public use, or if the condemnation is sought for private gain, or from wilful or malicious purposes, or to injure or destroy the rights of other parties or that they acted without warrant of law and oppressively, (citing cases). Confessedly the case at bar does not fall within the exceptions stated. The good faith of the Board . . . in locating the proposed levy and taking the land of complainants is not impuned, and the courts will not attempt to dictate or control their actions on the ground alone that they have acted hastily or unwisely." The court there construed Section 17 of the Constitution (making the question of whether the use be public a judicial one) not to authorize the courts to determine the necessity for the taking and went on to point out that the complainants had a perfectly plain and adequate remedy prescribed by law whereby the compensation to which they were entitled could be determined. Ham, et al. v. Levy Commissioners (1903) 83 Miss. 534, 35 So. 943.
Section 2782, Mississippi Code of 1942, "simply extends the scope of the writ of prohibition in eminent domain cases and leaves in full force the other common law grounds therefor, one of which is a want of jurisdiction in the offending court to try the case, the trial of which is sought to be prohibited." (The court further indicated that lack of jurisdiction is the primary question to be determined for the writ and intimated that this question alone should have been considered by the court in this case). City of Greenwood v. Humphrey and Co., Inc., (1938), 182 Miss. 91, 179 So. 862, 181 So. 517.
The taking of land necessary for the construction of State Highways by the Highway Commission is a taking for a "public purpose". Board of Supervisors of Covington County v. State Highway Commission, 188 Miss. 274, 194 So. 743.
The taking of land for neutral strips for the highway for the safety and convenience of traffic on a state highway is a taking for a public purpose. (In a separate opinion Smith, C.J., expressed the opinion that the question of public purpose could not be determined in the county court in the eminent domain proceeding). Rand, et al, v. Mississippi State Highway Commission, (1940) 191 Miss. 230, 199 So. 374.
The power of eminent domain may be exercised for the purpose of acquiring road building materials and it is immaterial whether the materials being acquired will be used on a State Highway in that county or elsewhere, as there is nothing in the statute that limits the taking of the materials deemed to be necessary in the constructing and maintaining of highways to lands contiguous to the highway upon which it is to be used. Blanton v. Fager,-stron, et al, (1947, Alabama) 31 So.2d 330.
It is the opinion of the writer that the legislature intended by the enactment of Section 2782, of the Code of 1942, to clothe the circuit judge with the necessary power to adjudicate that question which Section 17 of the Constitution expressly provided shall remain a judicial question, that is, whether the contemplated use be public. That question is so broad that in the writer's opinion it would include whether there had been an abuse of discretion, fraud or misuse of the powers delegated to the administrative agency.
There is no authority expressly provided for a jury in this type of proceeding. Section 2782 of the Mississippi Code of 1942, indicates that the circuit judge alone shall determine whether first, a tempory writ be issued and second, whether it be made permanent. It is true that the section also provided that the provisions in the chapter on quo warranto, "so far as may be", shall apply to the procedure here, but the mere fact that Section 1141, under the Chapter on quo warranto, provides that the judge may order a jury in that type of proceeding certainly does not mean that a jury must be had or may be had in the proceedings for a writ of prohibition. Section 1119, at the end of the chapter on mandamus and prohibition, provides that all of the foregoing provisions regulating the proceedings on the writ of mandamus shall apply, as far as the nature of the remedy will allow, to proceedings on writs of prohibition. It is submitted that the legislature intended simply to authorize a jury in those matters where a litigant would have the constitutional right to trial by jury and most certainly did not intend to subject questions which are inherently in the realm of the law to the decision of a jury. "In the absence of a special constitutional or statutory provision there is no right to trial by jury in condemnation proceedings since the general constitutional provisions relating to the trial by jury do not apply to proceedings to condemn lands under the power of eminent domain and this rule applies both to the determination of the necessity for the appropriation, and to the assessment of compensation." 50 C.J.S., page 767, Section 60.
"There is no right to a jury trial on the question of the right to condemn." Lewis on Eminent Domain, (3rd Edition) Section 509,
The right of trial by jury has never been held to extend a question in the trial of which a jury is not necessary by the ancient principles of the common law. Ison v. Mississippi Central R.R. Co., 36 Miss. 300.
The proceeding to take private property for public use is not a "matter" embraced in terms by the Constitution in parcelling out the jurisdiction of the courts it created, it is a peculiar matter, exceptional in its character, and not an ordinary "case" or "cause" as these terms are employed by the Constitution in creating certain courts. R.R. Co. v. Drake, 60 Miss. 621.
Section 31 of the Constitution of Mississippi of 1890, providing that the right of trial by jury shall remain inviolate, does not apply to questions in the trial of which a jury was not necessary by the ancient principles of the common law. Aldridge v. Bogue Phailie Drainage District (1914), 64 So. 377; Riverside Drainage District v. Buckner, 108 Miss. 427.
Since under the common law no phase of the exercise of the power of eminent domain was subject to trial by jury, the only questions involving that power which are now subject to such trial are those which the legislature have expressly provided. The chapter on eminent domain does subject the question of the amount of the compensation to trial by jury but there is no statutory provision subjecting any other question concerning eminent domain to such procedure and it is impossible for the writer to conceive how the question of the necessity of the taking of specific property for the construction of today's highways could be determined by an ordinary jury. That question is necessarily an administrative matter and in order that its exercise be uniform and in the public interest, it must be left to the administrative agency to which it is delegated and not limited or abridged unless that agency abuses this discretion or fraud enters into its determinations and such has been abridged unless that agency abuses this discretion or the consistent opinion of the courts in Mississippi and nearly all of the other jurisdictions.
As reflected by the review of the hearing, the defendant entered numerous objections to the testimony of petitioner's witnesses on the grounds that the same were incompetent, irrelevant and immaterial, explaining why, and these objections and the motions to exclude such testimony were overruled.
"On the trial of the issues presented (in proceedings for a writ of prohibition), all competent evidence of facts justifying the issuance of the writ is admissible, while all other evidence is immaterial." Want of jurisdiction is an issue of law. "As a general rule, a court to which an application for writ of prohibition is presented is confined to a consideration of the matters presented by the record in the court below, and cannot consider issues of fact dehors such record." (Section 45). "Constitutional or statutory grants of power to superior courts to exercise, by means of the writ, a supervisory control over inferior courts or tribunals, or even in some instances over Commissions and Boards created by law, have generally been construed by the courts as not enlarging the office of the writ so as to permit its issuance to control administrative, ministerial or non-judicial acts and functions beyond the common law scope of the writ, except where such a provision expressly so extends the use of the writ." (Section 15) ". . . it has been held that prohibition will not lie if the inferior courts has prima facie jurisdiction, that is, if on the face of the papers the cause is within the court's cognizance;" (Section 6). 42 American Jurisprudence, Prohibition, page 138 through 182.
Stennis Brown, for appellees.
This action started in a special court of Eminent Domain, and appellees availed themselves of the remedy provided under Section 2782 of the Mississippi Code of 1942, which provides among other things, "all the provisions in the chapter of Quo Warranto, so far as may be, shall apply to the procedure under this section." Section 1141 Mississippi Code 1942 provides for trial by jury in Quo Warranto proceedings. It is true that section 1119 of Mississippi Code of 1942 states that the proceedings on writs of prohibition shall be governed by the proceedings on writs of Mandamus, but it was undoubtedly the intention of the legislature that proceedings under Section 2782 be governed by the chapter of Quo Warranto. Appellees' contention is that the trial judge erred in his failure to empanel the jury in the beginning of the proceedings, as this was a case clearly for a jury, and the request for jury had been duly made; and when the trial judge stopped the proceedings and empaneled a jury after appellees had rested, he was merely doing what he should have done in the first place. Isom v. Mississippi Central Railroad Co., 36 Miss. 300.
Appellees' view of the entire situation is that appellant acted arbitrarily, oppressively, and without proper consideration of appellees' interests, and that section 2782 was enacted by the legislature to protect the rights and interests of the individual in cases of this kind.
Appellant has never contended, and, in truth could never truthfully contend that it has any need to gain title to appellees' property sought to be condemned. Its only contention and its only need is for some dirt from which to construct Highway 14, and yet, in its proceedings which were stopped by appellees' writ of prohibition, it seeks to procure fee simple title except for gas and mineral rights. In Dantzler v. Mississippi State Highway Commission, 198 Miss. 149, the court states: "But the court held, and we concur to the extent now hereinafter stated, that the condemning party is not required to go to the full extent permitted by the law in the taking of the land, but could voluntarily restrict itself to so much of the landowner's interest therein as the public need actually required, and as to any interest or use not only might lawfully be left and secured to the owner, but in fact ought to be so left or reserved to him; and that the reservation being made the damages are assessed in view of the use or interest retained to the owner and not condemned" and the opinion further holds that it is proper to make such reservations in the petition itself.
After appellees introduced evidence that to allow the appellant to take away from him fee simple title to the land involved in the eminent domain proceedings would damage his property so severely that it would be impossible to estimate the damages and that there was other soil of like character available, the removing of which would not damage his property, none of which was denied by appellant, there was then sufficient evidence to make an issue of fact to be presented to the jury.
Although appellees concede that there are numerous errors in the record, the proper conclusion has been reached and there was ample evidence to justify the verdict of the jury. It is well settled in our State that a jury verdict will not be disturbed when it is based upon sufficient evidence. Appellees contend that the judgment of the lower court should be sustained.
The appellants instituted proceedings in an Eminent Domain Court in Noxubee County seeking to condemn approximately an acre of land belonging to appellees, so as to obtain therefrom a certain type of road materials called "topping." This term, according to testimony in the record before us is "applied to selected material with a sand clay or a gravel or a clay gravel from which we produce material to construct bases and sub-bases for highways." In addition, it was sought to condemn a strip of 1.88 acres from the topping pit to a county road, for purposes of a way to the material.
Chapter 322, Laws 1948, substantially a reenactment of the earlier Stansel Act, in addition to authority to condemn lands for rights of way, also confers on the Highway Commission, in Section 8, the right "to condemn or acquire by gift or purchase lands containing road building materials and to develop and operated pits, mines, or other properties for the purpose of obtaining road material."
Appellees, as defendants in the Eminent Domain Court, applied to the Circuit Judge for a temporary writ of prohibition against the condemnation sought by the Highway Commission on the ground that no necessity existed for taking their lands, because other more convenient locations of topping soil were available for the particular highway project involved. A temporary writ was issued, and the Highway Commission appeared and contested it, as well as the permanent writ also sought. In its answer, the appellants here, defendants in the court below, alleged that: "it is denied that no necessity exists for taking by said Highway Commission of the land of petitioners as petitioned for in the Eminent Domain proceedings; and defendant further answers that the question of necessity for the taking as alleged in the petition herein is not proper grounds for the issuance of the writ prayed for."
In support of its legal proposition, appellant cites many cases from this and other courts to the effect that "necessity" in such matters is a legislative and not a judicial question. For instance, the Supreme Court of the United States has said: "It is well settled that while the question whether the purpose of a taking is a public one is judicial (citing cases), the necessity and the proper extent of a taking is a legislative question (citing cases). The Legislature may refer such issues, if controverted, to the court for decision . . .". Sears v. City of Akron, 246 U.S. 242, 38 S.Ct. 245, 248, 62 L.Ed. 688. In the opinion, it was held that where no statute provided for a court review of the question, equity could issue an injunction until the issue of necessity could be settled. And, "The general rule is that the necessity or expediency of appropriating particular property for public use is not a matter of judicial cognizance, but one for the determination of the legislative branch of the government, and this must obviously be so where the state takes for its own purposes. The state possesses the power as a sovereign, and as a sovereign exerts it. How can its citizens call on the courts to review the grounds on which the statute has acted in the absence of legislation permitting that to be done?" Adirondack R. Company v. People of State of New York, 176 U.S. 335, 20 S.Ct. 460, 465, 44 L.Ed. 492.
Texts from treatises on the law are cited to the effect that "necessity" is a legislative question, not to be reviewed by the courts except for fraud or bad faith. Appellant also cites the Mississippi case of Ham et al v. Board of Levee Commissioners for Yazoo-Mississippi Delta, 83 Miss. 534, 35 So. 943, dealing with Chapter 168, Laws 1884. The case was decided at our October term 1903. We are further referred to Vinegar Bend Lumber Company et al. v. Oak Grove and G.R. Company, 1907, 89 Miss. 84, 43 So. 292. In the Ham case, supra, we said that "It is for the courts to determine that the proposed taking is for a public use, but, this being so decided, it is for the commissioners to decide upon the necessity of such taking." [ 83 Miss. 534, 35 So. 947.] (Emphasis supplied.) The Vinegar Bend case held that the chapter on eminent domain never intended to create a tribunal of full jurisdiction to try any and all issues that might be raised on the subject of the right to condemn, and that its sole function is to fix the compensation for the taking; and since the power to determine whether the taking was for a public use was not granted the court of eminent domain, it could not be raised in the appellate tribunal, that is, the circuit court. We also decided that "Neither the Constitution nor the laws of the state provide any particular tribunal in which this question shall be determined, nor is it a matter of any particular concern in what court the question shall be settled, provided it be determined in that forum which is capable of deciding it." [ 89 Miss. 84, 43 So. 297.] Those things being true, it was said that the remedy must be by injunction in the chancery court, enjoining the entry upon, or appropriation of, the land, because the use for which it was sought to be taken did not constitute a public use.
In the Code of 1930, there first emerged in our statutes Section 1510, now Section 2782, Code 1942. Due to the importance of the question involved, and in aid of clear understanding of it, we quote the statute in full, as follows:
"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 never-the less proceed."
(Hn 1) It will be seen that the Legislature added to the right of an injunction, as to which a bond was required, the right of a writ of prohibition, wherein no bond is required. Obviously, it was sought to provide a statutory remedy by prohibition, in view of observation of various courts that there were no statutes granting jurisdiction to any special court to try the precise issue of the necessity for the taking. It is to be recalled here that the Supreme Court of the United States in the Adirondack R. Company case, asked this rhetorical question: "How can its citizens call on the courts to review the grounds on which the state has acted in the absence of legislation permitting that to be done?" This provision of the statute has never been construed by us, so far as we can find, and no such case has been cited in the briefs. The opening sentence of the statute begins: "The legal remedy by way of prohibition is made applicable for the purposes of testing [two] questions." One of them is "whether there is a public necessity for the taking of the particular property or a part thereof which it is proposed to condemn." (Italics supplied.)
We are, therefore, of the opinion that appellees had the right to petition the circuit court for a writ of prohibition, and that court had the power properly to dispose of the question.
(Hn 2) However, over the protests of the appellant, State Highway Commission, the circuit judge granted a jury trial, which we think was error. Appellees seek to support this action by the trial judge on the theory that Section 2782 provides that "All the provisions in the chapter on Quo Warranto, so far as may be, shall apply to the procedure under this section . . .". (Italics supplied.) It is pointed out that Section 1141, Code 1942, does provide for a jury in Quo Warranto cases, and appellees, therefore, argue that they were entitled to a jury trial in the case at bar. The answer to this contention is that Section 2782 does not mandatorily require the slavish following of the statutes on procedure in Quo Warranto litigation, but directs that it shall be done only "so far as may be". The Legislature in its wisdom knew that some phases of that prescribed procedure could not be of practical or reasonable use in the trial of the writ of prohibition in such cases as the one at bar. It is not to be considered that the lawmakers would delegate to inexpert juries the right of review of the decision of the Highway Commission, as to necessity for condemnnation involving many technical and scientific phases. The disastrous catastrophe this would entail can be visualized in the paralysis that thereby could be inflicted upon the operations of the Commission. The statute went as far as reasonably possible where it provided for the determination of this question by the circuit judge.
That the statute (Section 2782, supra) does so provide for determination by the circuit judge is patently manifest from its language, as follows: "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." (Italics supplied.) The case of Isom v. Mississippi Central Railroad Co., 36 Miss. 300, is not in point here.
On a new trial of this case, the ciruit judge should admit, and consider only competent testimony relevant to the sole issue of "whether there is a public necessity for the taking of the particular property or a part thereof whch it is proposed to condemn." (Hn 3) Evidence concerning the health of the owners of the property, damage to farming operations, and impairment of the use thereof, or possible availability of other topping material, should not be introduced, and thus will be avoided cluttering and involving the record with improper matter, not pertinent to the issue before the circuit judge.
In view of what we have said, ante, the action of the trial judge in granting a jury trial, on motion of appellees, over the protest of appellants, requires a reversal of the circuit court judgment, and remand for a new trial, in harmony with this opinion.
Reversed and remanded.