Barton v. Edwards

| Ark. | Oct 11, 1915

McCulloch, C. J.

A public road was, by order of the county court, established through appellant's land in Craighead County, the proceedings for laying out the road being conducted in accordance with the statutes on that subject, and appellant was awarded the sum of $575.00 as compensation for his damages. County warrants of that county are considerably below par, and appellant refused to accept a warrant and insists that the county must in some way pay him his damages in money before the land can be taken for use as a public road. He instituted this action in the chancery court against the county judge to prevent the'opening of the road before compensation is paid to him in money. The chancellor' decided against appellant and dismissed his complaint for want of equity, and he insists here on appeal that the constitutional guaranty with respect to payment of compensation for property taken for public use has not been complied with.

Counsel seem to rely upon two provisions of the constitution : First, Sec. 9, Art. XII, which reads as follows: “No,property, nor right-of-way, shall be appropriated to the use of any corporation until full compensation therefor shall be .first made to the owner, in money, or first secured to him by a deposit of money, which compensation, irrespective of :any benefit from any improvement proposed by such corporation, shall be (ascertained by a jury of twelve men, in .a court of competent jurisdiction, as shall be prescribed by law.” That section was intended, however, to apply only to the exercise of the right of eminent domain by private corporations and has no application to the exercise of that power by the State or subdivisions thereof. We held recently in the case of City of Paragould v. Milner, 114 Ark. 334" date_filed="1914-10-12" court="Ark." case_name="City of Paragould v. Milner">114 Ark. 334, 170 S. W. 78, that the provision just quoted has no application to condemnations by municipal corporations.

(1-2) The declaration of rights (Section 22) announces the principle that the right of property is before ■and higher than (any constitutional sanction, :and that “private property shall not !be taken, appropriated or-damaged for public use without just compensation therefor.” This provision of the ’Constitution is relied on by counsel for appellant in their contention that payment or a provision for payment in depreciated county scrip can not be treated as compensation within the meaning of the language of the Constitution. It is argued th/at the words “just compensation” mean payment in money, and that nothing else will conform to the constitutional guaranty. The use of the word compensation alone implies payment in money, but the fact that the emphatic language used in Sec. 9, Art. XII, is not employed in the declanation of rights shows that the framers of the Constitution did not mean to require actual payment in money (before the State or a county or municipality could exercise the right of eminent domain. The law was well settled to the contrary long prior to the adoption of the Constitution of 1874, and it is to be presumed that the framers of the Constitution used the word in the light of its interpretation by courts when used under similar circumstances. It has quite generally been held, under similar provisions of the Constitution, that payment need not precede the taking of the property.

Judge Cooley wrote as follows on that subject: “When the property is taken directly by the State, or by •any municipal corporation by State ¡authority, it has been repeatedly held not to be essential to the validity of a law for the exercise of the right oif eminent domain, that it should provide for making compensation before the actual appropriation. It is sufficient if provision is made by law by which the party can obtain compensation, and that an impartial tribunal is provided for assessing it. The decisions upon this point ¡assume that, when the State has provided ia remedy by resort to which the party can have his compensation assessed, adequate means are afforded for its satisfaction; since the property of the municipality, or of the State, is a fund to which he can resort without risk of loss.” Cooley’s Constitutional Limitations (7 ed.), p. 813.

The same principle is announced in somewhat 'different language in many decisions. The .Supreme Court of Wisconsin, in the s-ase of State ex rel. Burbank v. City of Superior, 81 Wis. 649" date_filed="1892-03-22" court="Wis." case_name="State ex rel. Burbank v. Mayor of Superior">81 Wis. 649, said: “WThere property is taken for a public use by a municipal or g-wasi-municipal corporation, the taxable property thereof constitutes a fund to which the owner may resort in the way pointed out by law, and the existence of a method by which payment may thus be compelled satisfies the constitutional requirement.”

The same doctrine has been announced by the New Jersey courts in the following language: “But it is not necessary that compensation should precede the actual appropriation, where the property is taken ¡by the State, or by a municipal corporation by State authority. It is sufficient that an adequate remedy is provided, which the party may resort to on his own motion to recover compensation. ” Loweree v. City of Newark, 38 N. J. Law 151.

The same rule is announced in many decisions of the New York court of last resort, and the only exception found in the cases of that State is the case of Sage v. City of Brooklyn, 89 N.Y. 189" date_filed="1882-05-30" court="NY" case_name="Sage v. . City of Brooklyn">89 N. Y. 189, where the court, after stating the rule generally recognized, held that where the owner was remitted to a fund not obtained by general taxation but by taxation on benefits within a .limited district, the constitutional guaranty wias not satisfied.

There is, indeed, some authority for the position of counsel, and Mr. Lewis in his work on Eminent Domain, Yol. II, Sec. 679, 'after stating the general rule, adds this exception: “But, if it can be shown that the resources of a municipal corporation, from taxation or otherwise, are insufficient to enable it to make compensation in a reasonable time, an entry will be enjoined until security is given. ’ ’ Only one case is cited in support of that statement, namely, the case of Keene v. Bristol, 26 Pa. St. 46. We do not think that the rule ¡stated by that author is in accord with sound reason on 'the subject and we decline to adopt it. It would be ¡an unsafe rule to say that the power of the State, or its subdivisions, such as counties ■and municipalities, in the exercise of the right of eminent domain, is impaired by inability to make immediate payment, unless it is so expressed in the letter of the Constitution. There ought to be and is a presumption that the public purse will prove sufficient to meet all just 'demands, •and that unless the Constitution expressly provides for payment in money in advance of the taking of property, it is to be presumed that language such as is ordinarily found in state constitutions prohibiting the taking of property without compensation refers to the usual method of payment ¡by the State or its subdivisions. The only way in which demands against a county can be paid is by a warrant on the treasury (Rolfe v. Spybuck Drainage District, 101 Ark. 32), and every citizen in dealing with the State or county or municipality must take chances on that method of payment. The county could not exercise its function if .anything more should be exacted. It works a hardship in exceptional instances, • where county scrip is depreciated, to require a citizen to accept compensation in depreciated warrants, but that is one of the exceptional burdens which the citizen is expected to bear. 'County warrants are receivable for county taxes, .and in this way the policy of the law is to give them the greatest facility for circulation. It is thought that by reason of the fact that warrants are thus receivable for taxes, and are payable out of funds found to be in the treasury when presented, the citizen is given satisfaction for any demand against the county, either voluntary or involuntary. The language of our Constitution was framed with reference to that method of payment, and it is to be presumed that its framers intended to express that meaning in the use of the words “just compensation,” to be rendered to one whose property is taken for public use.

(3) It is further insisted that the award of damages is void, and that appellant can not be accorded just compensation, for the reason that the quorum court has made no specific appropriation for expenditures on roads. It is sufficient to say, however, that the constitutional guaranty is answered by general laws which afford means to the land owner of obtaining compensation. There has been an assessment of his damages and he has a clear remedy to compel the levy of an appropriation of funds to pay the award. This is sufficient to dispose of the case without undertaking to pass upon the question whether or not a specific appropriation of road funds is necessary-under the constitutional amendment which authorizes the levying court to make an additional levy of three mills for road purposes when a majority of the electors have voted in favor of it .at the preceding election.

The 'decree of the chancellor is affirmed.

Smith, J., ‘dissents.