State ex rel. Hamer v. Stackhouse

The opinion of the court was delivered by Simpson, C. J. The question which arises first in this case, is that presented in the fourth ground of appeal. It is this: Is the act of February 15th, 1872, under which these proceedings were instituted, constitutional ? This should be considered first, because the decision' of this question will determine whether or not it will be necessary for the court to proceed further. If the act of 1872 is unconstitutional and void, then there is an end of this case. If, on the contrary, that act is constitutional and valid, then it will be necessary for the court to pass upon the other questions involved. Section 14, Article I., of the constitution, provides that no person shall be despoiled of his property but by the judgment of his peers or the law of the land. Section 23 of the same article provides that “ private property shall not be taken or applied for public use, or for the,use of corporations, or for private use, without the consent of the owner — 423 — or a just compensation being made therefor; provided, however, that laws may be made securing to persons or corporations the right of way over the lands of either persons or corporations and for works of internal improvement, the right to establish depots, stations, turnouts, &c., but a just compensation shall, in all cases, be first made to the owner.” These two sections are in the same constitution and in the same article. They must be construed as parts of the same instrument, and to each must be given its legitimate effect and intent. It cannot be supposed that either was intended to be an unmeaning jargon; on the contrary, we must suppose that the framers of the constitution had a purpose in each. - The first guarantees to every citizen the constitutional right to demand the judgment of his peers and the application of the laws of the land before he shall be despoiled of his property. It throws around the citizen the protection of the courts and of the kvw, and it ensures to him the right of trial by jury — that inestimable right for which so many sacrifices have been made by our ancestors, and which has long been regarded as the bulwark of our liberties. It is a descendant of Bunnymede and Magna Charta, and will never be yielded without a struggle by any free people to whom it may be or has been secured. But while this is true in a general sense, yet this right, great as it is, has a legitimate boundary. No citizen, under any circumstances, should be made to forfeit or be despoiled of his property but by the judgment of his peers or the law of the land ; yet every citizen should be willing, under proper conditions, under proper laws and upon just compensation, to surrender his property when demanded by public necessities or the welfare of society. It is in this sense that the second .section referred to above should be construed in connection with the first. They tend to the same end — the welfare of the people — and there is no conflict between them. Hence the framers of the constitution, while recognizing the sanctity of the rights guaranteed in the first section, thought proper to make provision in the second, not only in the appropriation of private property for public use, but, in the matter of the right of way, private property even for private use; and to — 424 — this end, in the second section above, will be found an express grant of power to the legislature to secure, by proper laws, a right of way, both to corporations and to persons, over the lands of others, upon just compensation being first made to the owner of said lands. The act of February 15th, 1872, is a law of this kind. Its very end and purpose is to secure a right of way to parties walled in by the lauds of others. It has no other object, and it provides the necessary machinery for ascertaining the just compensation required by the constitution in such cases. It does not say what law shall be enacted to ensure the enjoyment of the right intended to be secured, nor does it indicate any special provision or limitation which, in the opinion of the framers of the constitution, might be necessary; it simply delegates the power, in general terms, to make laws for that purpose, leaving the character and terms of the laws to the law-making power of the state, the only condition being that just compensation shall be first made to the owner of the property required to be sacrificed. The act in question seems to have been passed in pursuance of the authority of this section, and we cannot understand how, when looked at in the light of that section, it can be regarded as unconstitutional, and, therefore, null and void. Holding the act to be constitutional, it now becomes necessary to proceed to the consideration of the other questions presented in the grounds of appeal. 1. Did the presiding judge err in holding that the referees had jurisdiction of the subject matter of the action sought to be prohibited ? The act of February 15th, 1872, authorizes the referees to construct a highway or road to the .nearest highway then existing ; and the argument relied ón here to show that the referees did not have jurisdiction is, first, that the way opened by them is neither a highway or a road; and, second, that it does not run to the nearest highway. In a strict technical sense, it may be that the way opened is not a highway or a public road; but this is clearly not the character of the wrongs intended to be provided, for in this act. The purpose of this act is to open to parties, otherwise cut off, a way — 425 — of ingress and egress to and from their lands to the nearest public highway, and the terms used in the act must be construed under the control of that object; and whether it be called a highway or a road — in that the end intended is accomplished — the act is satisfied. The construction contended for by the appellant is too strict and narrow, and, if enforced, would negative the act entirely and leave it a dead letter on the statute book. Parties never, or seldom, desire a highway or public road, in the ordinary sense, leading from their private premises to the nearest highway, and this act was not passed to accomplish any such purpose. The appellant, too, has failed to apprehend the true intent of the act as to the second point. The act does not say that the road must be opened on the nearest line to the highway, but to the nearest highway; leaving it to the referees to determine the exact route. This seems to have been done in this case, and it does not appear that the referees transcended their jurisdiction in this respect. “ The presiding judge held that the act is of force throughout the state, as well within the limits of incorporated cities and towns as elsewhere, except where acts of incorporation, by express words or by necessary implication, exclude it,” and that it is neither excluded by express words or by necessary implication by the charter of the village of Little. Pock; and this ruling is made the subject of the third ground of appeal. We see no error in the presiding judge in this respect. The act is a general and public act, and it is limited to no special locality, and it necessarily applies to the whole state, including towns and cities, unless excluded by express words or by necessary implication in the act of incorporation of some town or city. No such express words or necessary implication are found in the act incorporating the village of Little Pock. This act Avas passed to meet a necessity which is left unprovided for both in the powers of the county commissioners and the municipal authorities of Little Pock. The county commissioners are confined in their jurisdiction to the public roads and highways of the county, and the municipal authorities of Little Pock to the public roads and streets of the village. This is a contest in reference to a special private way provided — 426 — for in this act of'1872, in which the public has no interest whatever, and which is altogether beyond and outside of the jurisdiction of either of the agencies above referred to. Such being the fact, the judge was right in his ruling objected to in the second ground of appeal. We can see no error in that part of the judge’s order in which he ruled that the referees had not exceeded their jurisdiction in their findings and proceedings, as contra-distinguished from the subject matter. There appears nothing in their mode of proceeding contrary to law or the act under which they were acting; nor can we say that the judge erred in declining to overrule and reverse their finding. In the fifth ground of appeal it is stated that McLaurin deliberately cut himself off from the nearest highway by selling to other parties intervening lots, without reservation, and upon that ground the presiding judge should have held that he could not claim this right of way over the lands of Hamer. If the facts sustained this position there might be reason to consider this exception, but the record shows a different state of facts. It is slated in the record, or rather in the uncontradicted affidavit of McLaurin, that McLaurin, at one time, had control of all the lots and lands'embraced in this contest; that, while thus in control, he opened the precise way which has been opened by the referees, and that this way was in existence when he sold off the lots to Hays and Mrs. Stern berger, and so continued until he sold to Hamer afterwards, when-it was closed up by Hamer and Mrs. Stern berger moving in their fences. It is true that Mc-Laurin made no reservation, in his different deeds, of this road, but he sold the lands with this road established and in his use, and it can hardly be supposed that he intended to yield this right of way — the only one he had — and that he deliberately cut himself off from the highway leading from Little Rock to Marion Court House. He no doubt supposed that this road, being already open and in use, would remain so. This being so, we do not think this act precluded the referees from taking jurisdiction. The question whether the referees, under this act, constitute — 427 — such a 'tribunal as would be subject to the restraining powers of prohibition when transcending their jurisdiction, has not been raised in the pleadings or argument. But in considering and passing upon the grounds of appeal, we have impliedly recognized the right of the appellant to apply for this mode of redress, and it may not be out of place to present our views on that subject. Originally, the writ of prohibition was understood to be a writ issuing out of some superior court, “ directed to the judge and parties of an inferior court, commanding them to cease from the prosecution of a suit upon a suggestion that either the -cause originally or some collateral matter therein does not belong to that jm’isdietion, but to the cognizance of some other court.” 3 Bl. Com. 112. But in practice this writ has subsequently gone beyond this limit, and it has not only been used to restrain inferior judicial tribunals within the orbit of their jurisdiction as to the subject matter conferred upon them, but it has also reached to their collateral proceedings when contrary to the common law or some statutory provision. Nor has it been confined entirely to inferior judicial tribunals, as seemed first to be intended ; on the contrary, it has been extended to other public functionaries, officials and persons charged with the performance of a duty not wholly judicial, and not even very extensively or strongly marked with a judicial character. State v. Com’rs of Roads of Christ Church Parish, 1 Mills’ Const. 55; State, ex rel. Mrs. Kohne, v. James Simons and B. C. Pressley, 2 Spears 761. The referees provided for under the act of 1872 are constituted a sort of court to hear and determine the question of right of way of one citizen over the lands of another, and its action is without appeal. And we have no hesitation in saying that prohibition, under the latitude above, is not only a peculiarly proper, but a necessary remedy to keep this quasi court within the boundary of its extraordinary powers; and, consequently, we have felt fully warranted in entertaining this appeal. We might say further, as applicable to the facts of this case, that the writ of prohibition is a preventive remedy and not- remedial. Tt comes too late- after the mischief, if any, has been done. — 428 — While the hand is uplifted it can arrest and prevent the blow, but, the blow once received, this writ is powerless to redress. It seems in this case, that, whether legally or not, the road in controversy is open, the court dissolved and the parties dispersed. Under this view, even though the appellant had the right and the law on his side, he could not obtain redress through this proceeding. The order below is affirmed and the appeal dismissed. McIver and McGowan, A. J.’s, concurred. ■