Hinds County v. Johnson

ANDERSON, J., delivered the opinion of the court. The appellee Joel F. Johnson enjoined appellants, Hinds county, Blodgett Construction Company, and Alabama & Vicksburg Railway Company, from carrying out the construction of an overhead passway at the first crossing west of the city of Jackson of the main line of the Alabama & Vicksburg Railway Company and the Jackson-Clinton public highway, and the said county of Hinds from changing the course of said public highway at and near said crossing. The cause was tried on bill, answers of appellants, and proof, and a decree was rendered sustaining appellee’s bill in part, from wlrjch appellants prosecute this appeal. Conceiving that it was, necessary for the safety and convenience of the traveling public, the board of supervisors of Hinds county entered into a contract with appellants Blodgett Construction Company and the Alabama & Vicksburg Raihvay Company for the construction by the said, Blodgett Construction Company of an overhead passway at said crossing of the Alabama & Vicksburg Railway and the Jackson-Clinton public highway. The carrying out of said project necessitated a change in said highway at and near said crossing. In making said change it became necessary for the county to acquire a — 605 — right of way for said highway through the lauds of ap-pellee. This chauge in the public highway was undertaken to be made by the county under sections 4400 to 4402, inclusive, Code of 1906 (sections 1080 to 7082, inclusive, Hemingway’s Code).- The grounds of complaint upon which appellee’s bill for injunctive relief was based were: First, that said statute providing the method for the alteration or change in a public highway and the condemnation of sufficient lands therefor is violative of section 17 of the Constitution, in that it authorizes the taking of property for public use without first making compensation therefor; and, second, because the- county was without authority of law to contract for the construction of said overhead crossing and expend money therefor. In making the proposed change in said public highway the county complied strictly with the provisions of the above statute. In determining the question of the constitutionality of said statute, the following principles of construction should be borne in mind: That all doubts as to its constitutionality will be resolved in its favor. The court must be convinced beyond a reasonable doubt of the unconstitutionality of the statute, and, where two different interpretations are possible, that which will uphold its validity should be adopted. University of Miss. v. Waugh, 105 Miss. 623, 62.So. 827, L. R. A. 1915D, 588, note, Ann. Cas. 1916E, 522; Johnston v. Reeves & Co., 112 Miss. 227, 72 So. 925; State v. Wheatley, 113 Miss. 555, 74 So. 427. There is no positive provision ini the statute involved excluding the operation of section 17 of the Constitution. It is true that the last clause of said section 4401, Code of 1906 (Hemingway’s Code, section 7081), provides that, when the report of thq committee appointed to view and lay out the proposed alteration or change in the highway is confirmed by the board of supervisors, it is the duty of the latter to assign the necessary hands for the opening and working of such rqad. But this provision does not necessarily mean that the county shall take possession of the land — 606 — necessary to malte the proposed alteration or change until it is condemned and compensation made therefor as provided in the last section of said statute. Section 17 of the Constitution will be read into the statute, if possible to do so without destroying the statute. In other words, unless the statute clearly and unmistakably excludes the operation of the Constitution, the statute will be upheld. So viewing the statute here involved, we are of opinion that it is not violative of section 17 of the Constitution; that a county altering or changing one of its public highways under its provisions cannot enter upon and appropriate for said use the land of another without making compensation therefor in advance of such appropriation and use. However, the bill in this case alleges that as a matter of fact the county did enter upon and appropriate appellee’s land to its use without first making compensation therefor. The evidence shows without conflict that neither the county nor the appellant Blodgett Construction Company entered upon or appropriated appellee’s land until after the expiration'of thirty days from the laying out of the proposed alteration or change in said highway and .the confirmation thereof by the board of supervisors. In other words, the evidence shows that the county complied with the provisions of the last section of said statute. It is true that some materials were placed upon appellee’s land by appellant Blodgett Construction Company before the expiration of said period; but it was done with the appellee’s consent or acquiescence, without waiving any of his rights.- Appellee having failed to petition the board to have his damages ascertained and awarded as provided by said statute and within the time fixed thereby, appellant Blodgett Construction Company and the county proceeded with the. proposed alteration or change in said highway, and the construction of said overhead passway, - whereupon the bill in this cause was filed, enjoining the further progress of said work. — 607 — Are the state and its political subdivisions barred by-section 17 of the Constitution from taking property for public use without making compensation in advance therefor, in the sense that the owner must first be paid or tendered in actual currency of the government the damages he had suffered? Clearly, under decisions of this court, that is the rule where property is taken for public use-by others than the state or some political subdivision thereof. We think this question was answered in the negative by Cage v. Trager, 60 Miss. 663. It was distinctly held in that case that the state, or any political subdivision thereof, seeking to condemn land for public use, might occupy and use the land in advance of actual payment therefor, and that where notice was'given the owner, and a fair opportunity afforded him to propound his claim for compensation, there was no constitutional objection to the requirement that the ■ duty should be upon the owner to take the initiative and propound his claim. In its opinion the court referred to, as sustaining that position, Cooley’s Constitutional Limitations, 560 to 562, inclusive. In the recent case of Joslin v. Providence, 262 U. S. 668. 43 Sup. Ct. 684, 67 L. Ed. —, the supreme court of che United States, in discussing this question, said, among other things: “It has long been settled that the taking of property for public use by a state or one of its municipalities need not be accompanied, or preceded by payment, but that the requirement of just compensation is satisfied when the public faith and credit are pledged to a reasonably prompt ascertainment and payment, and there is adequate provision for enforcing the pledge.” The requirement of compensation in advance was to insure payment to the 'owner. It was in the nature of a guaranty against insolvency of the taker of his land. It was to relieve him of the'uncertainties and exigencies of an ordinary unpaid claim, subject to be reduced to judgment, resulting in a nulla bona execution. These reasons can have no application or force to, the taking of private — 608 — property for public use for the state or any of its political subdivisions. There can be no personal judgment against the taker enforceable by execution. The taking in such a case means that the entire faith and credit and taxing power of the political body exercising the right is pledged to make the owner due compensation when ascertained. The taking and appropriation under this statute by the county under the facts of this case were tantamount to a tender by the latter, at the time of such tailing, of just compensation to the owner. It was the only tender the county was authorized to make under the law, and for all practical purposes it was a tender of the true amount due. Appellees argue that Joslin v. Providence, supra, is not in point, because the provision of the West Virginia Constitution involved in that case did not require compensation in advance of taking. The supreme court, however, in that case proceeded upon the principle laid down by a great many authorities that compensation must be made in advance by payment or tender, even though the Constitution or statute involved does not so expressly provide. As to the general rule, in the absence of positive requirement, see C. J. section 271, p. 837. Appellee relies upon the case of Levee Commissioners v. Dancy, 65 Miss. 335, 3 So. 568. It will be observed in the first place that that case neither overruled nor modified the principle laid down, in Cage v. Trager, supra. On the contrary, it expressly recognized the principle here invoked by stating what was decided in Cage v. Trager, and distinguishing it from the Dancy Case. The difference in the two cases is simply this: In the Cage-Trager Case there was a taking of property by a political subdivision of the state, while in the Dancy Case the board of levee commissioners for the Yazoo-Mississippi Delta was treated as a private corporation and not a political subdivision of the state. And the court held therefore that the principle applying to the state and its political subdivisions had no application, and the owner, had to be compensated be — 609 — fore the taking of bis property, and the statute there involved requiring him 'to make claim for his compensation and limiting the time of its making was void. Appellee having failed to petition the board of supervisors to have his damages assessed within the time prescribed by the statute, but instead having filed his bill to test the constitutionality of said statute, there may be a question as to whether his claim is barred, but it is not presented for decision in this case. Appellees argue at length that the county had no right under the law to make a contract for the construction of said overhead passway. It is not necessary to decide this question for the following reasons: The'evidence shows without conflict that the construction of the said overhead passway and the approaches thereto will cost the county nothing, nor will its upkeep; that the county had a contract with appellant Alabama & Vicksburg Railway Company and the state highway department and the Federal highway department by which they pay all the cost of said structure and its approaches and something like two thousand five hundred dollars more, and in addition that the entire upkeep of said overhead passway will be maintained at the expense of the state highway commission and without any expense to the county. ' We therefore hold that appellee has no standing in court. As a landowner and a taxpayer of the county no immediate nor prospective burden is placed upon him by the carrying out of said project. It may be conceded, therefore, that the county was without authority to make said contract, still the appellee cannot complain because as a property owner he will be actually' benefited thereby instead of damaged. It will cost him nothing. Certainly appellee has no right as a taxpayer to enjoin the board of supervisors from accepting donations from the Federal and state highway departments and the Alabama & Vicksburg Railway Company for the purpose of paying for said structure. Any — 610 — alleged misappropriations of funds by tbe state or federal highway departments cannot be reached in a suit of this character against a county. 1 Reversed and dismissed.