Hoxie v. Gibson

Wood, J. This action was instituted by appellant against the appellee to condemn a strip or parcel of land in the incorporated town of Hoxie, Arkansas, for a street. This court, in Hoxie v. Gibson, 150 Ark. 432, decided that the land in controversy was owned by Anna B. Gibson, the appellee herein. The present action was instituted under act No. 397 of the Special Acts of 1921, p. 826. Section 1 authorizes the town of Hoxie to sue for the land in controversy. The act further provides: “Sec. 2. If said circuit court finds that other parties have acquired rights in said street, it shall appoint three citizens of Lawrence County to act as appraisers, and said appraisers shall meet and view said street so sought to be opened, and shall appraise the damages which the parties having rights in said street will suffer by reason of its opening. Said appraisers shall notify the mayor or recorder of the incorporated town of Hoxie of the day when they will make their appraisal, and they will also notify the parties claiming the rights in said street, and they shall make their appraisal only after they have heard both sides and such witnesses as the respective parties bring before them. Their appraisal shall be conclusive as to the value of the property taken, and without appeal. “Sec. 3. When the appraisal has been made, the town council of the incorporated town of Hoxie shall determine whether they are willing to pay the 'amount thereof and to open said street, and in the event they determine to open said street, the incorporated town of Hoxie shall execute and deliver to the parties who are adjudged by the circuit court to be the owners of said ' street, the warrants of said incorporated town, drawn on its treasurer, for the amount of the appraised value of said street, and thereupon the said incorporated town of Hoxie shall open said street for use as a public highway.” The appellant set up the act and prayed that the land described in its complaint be condemned according to its provisions. The appellee entered a special demurrer to the complaint on, among other, the following grounds: “1. That the act under which this suit is brought is unconstitutional, because it seeks to deprive defendant of her property without due process of law, is unequal and discriminative, and is in contravention of the provisions of the Constitution of the State of'Arkansas and of the Fourteenth Amendment of the Constitution of the United States.” ■ “3. Because said act seeks to bind defendant by a verdict and judgment in this court without the right of appeal therefrom to the Supreme Court of Arkansas, and is in contravention of article VII, section 4, of the Constitution of Arkansas, which gives the right of appeal in all cases.” The trial court sustained the demurrer. Appellant stood on its demurrer, and the court rendered a judgment 'dismissing the complaint, and for costs, from which is this appeal. In Hoxie v. Gibson, supra, speaking of the act under review, we said: “But appellant’s authority under this statute to proceed to condemnation of the property is still unimpaired, notwithstanding the decree adjudicating and quieting appellee’s title to the property, for, us before stated, the only purpose of this act is to prescribe the method of condemnation.” The appellant says that this court “in this decision practically held that this act was legal and binding, and that it was a method of condemnation which could be followed and pursued by 'appellant. ’ ’ But not so. The issue before the chancery court in Hoxie v. Gibson, supra, was only as to the title to the property, and we affirmed the decree of the chancery court quieting the title in Mrs. Gibson. No. issue as to the right of condemnation of the land in controversy under special act 397, supra, was raised in that case. Therefore, the language from the decision quoted supra was not intended, and can not fairly be construed, to hold that special act 397 was ,a valid act. If the language were susceptible of that interpretation, it would be pure obiter, and not binding on the court in this lawsuit. The issue, and the only issue in the instant case, is whether or not special act 397, supra, is a valid act. In Cribbs v. Benedict, 64 Ark. 562, we said: “Eminent domain and police power aré attributes of political sovereignty, for the exercise of which the Legislature is under no necessity to address itself to the courts. It determines the mode and the occasion of the exercise of these supreme powers, untrammeled by constitutional restraints. It may or may not, in its discretion, clothe the proceedings with the forms or substance of judicial process, and when provision has been made for just compensation to the landowners for his land taken, the expression of the legislative will authorizing such taking is of itself due process.” And in Board of Directors St. Francis Levee District v. Reddit, 79 Ark. 159, we said: “Condemnation proceedings are not common-law actions, and when they meet the constitutional requirements and provide for due notice to the parties affected, they are valid, although they may not provide for a trial in course of the common law.” Learned counsel for appellant quote and rely upon the doctrine of the above cases to support their contention that it was within the power of the Legislature in condemnation proceedings to constitute a board of appraisers and to delegate to such board the absolute authority to determine the value of the land condemned, after notifying the parties and giving them the right to adduce testimony and be heard by the board on the-issue of compensation to be awarded the landowners for their property. Under our Constitution “the right of property is before and higher than any constitutional sanction, and private property shall not be ■ taken, appropriated, or damaged for public use without just compensation.” Now, the right of the State and its subordinate governmental agencies, under the power of eminent domain, to condemn and take private property for public use is beyond question. In addition to above, see Sloan v. Lawrence County, 134 Ark. 121-128 et seq., and cases there cited; Dickerson v. Tri-County Drainage Dist., 138 Ark. 471. The Legislature undoubtedly has the power to determine whether the necessity exists for such condemnation, but it has no power to create a tribunal and vest it with absolute authority to condemn private property without just compensation, or upon such compensation as such tribunal may determine, and make the findings of that tribunal or board conclusive upon the issue of compensation. The jurisdiction to determine the necessity for condemnation is one thing. That is purely a legislative function, which the Legislature may exercise untrammeled. The jurisdiction to determine the value of the land condemned and the compensation to be rendered the owner therefor, is another thing. The latter power is purely a judicial function which none but the courts can exercise. If the Legislature designates a tribunal other than a common-law jury to ascertain the value of the land and the amount of compensation to be paid the owner therefor, then the finding of such tribunal on the issues of fact must be subject to review by the courts. The right of appeal from such finding through to the court of last resort can not be taken away. Art. VII, see. 4, Const. Ark. If this procedure is not followed, then the landowner is deprived of his property without judicial inquiry, i. e., without the due process guaranteed by our Constitution and the Constitution of the United States. Article II, secs. 21 and 22, Constitution of Arkansas; articles 5 and 14, Const, of U. S.; Matter of City of Buffalo, 139 N. Y. 422, 430-31. Sec. 1, article 7, of our Constitution provides that the judicial power of the State shall be vested in certain courts designated therein. In Monongahela Navigation Co. v. United States, 148 U. S. 312, Mr. Justice Brewer, speaking for the court, says: “The Legislature may determine what private property is needed for public purposes — 'that is a question of political and legislative character; but when the taking has been ordered, then the question of compensation is judicial. It does not rest with the public, taking the property, through Congress or the Legislature, its representatives, to say what compensation shall be paid, or even what shall be the rule of compensation. The Constitution has declared that just compensation shall be paid, and the ascertainment of that is a judicial inquiry. 'See, also, 3 Dillon, Mun. Corp. sec. 1055; 3 Fletcher, Ency., sec. 1506; Ex parte Martin, 13 Ark. 198. In addition to the above cases of our own court, learned counsel for appellant cite many other decisions of this court holding that it is within the power of the Legislature in matters that are purely administrative or ministerial to constitute a board or tribunal for determining such issues and making the finding of such tribunal conclusive; and also cases in which we have held that, in certain summary proceedings in the courts, it is within the province of the Legislature to confer upon the courts the right to determine certain issues without the intervention of a jury. But this court has never held that the issues as to the value of land and compensation to be paid to the owner for the condemnation and taking thereof is a legislative question and that such power can be lodged in any tribunal other than the courts. In Missouri Pacific Ry. Co. v. Conway Bridge District, 134 Ark. 292, we said: ‘ ‘ The circuit court acts in a judicial, and not an administrative, capacity, and under the Constitution an appeal to this court (the Supreme Court) will lie from all final judgments and orders of the circuit court. The right of appeals extends to special proceedings.” The act under review makes the finding of the appraisers conclusive as to the value of the property taken, and expressly denies the landowner the right of appeal. This is clearly contrary to the provisions of our Constitution and the decisions construing the same. Our conclusion therefore is that the act is unconstitutional and void. • The judgment of the trial court was correct, and it is therefore affirmed. McCulloch, C.J., and Smith, J., dissenting.