Cumberland Telephone & Telegraph Co. v. Morgan

45 So. 429 | Miss. | 1908

Mayes, J.,

delivered the opinion of the court.

An eminent domain court cannot be organized, except it be shown in the application of the person or corporation seeking to exercise the right of eminent domain that the right exists in such person or corporation to condemn private property for public uses. If an application is made to the clerk for the organization of the eminent domain court by a person or corporation not having authority to exercise the right, the clerk is not empowered to convene the court, and, if he does, the court, not being lawfully convened, is without any power, and all acts done by it are ultra vires and void. Chapter 43 of the Code of 1906, dealing with the subject of eminent domain, both by sections 1854 and 1856 is expressly limited in its application to a person oi’ corporation having the right to condemn,, and,this being the cáse, the powers conferred by this chapter can be availed of by no other person or corporation. As authority for the organization of the court there must be filed with the clerk an application which shows on its face that the person seeking to have the court of eminent domain organized is entitled to exercise the right of eminent domain, and if it fails to do this it fails to state facts conferring jurisdiction on the clerk to issue the order to organize the court, and the tribunal organized by him without the statement of these jurisdictional facts is not a court. 15 Cyc., 851. In the case of Lumber Co. v. Railroad, Co., 89 Miss., 84, 104, 43 South., 292, 295, the court expressly says: “This chapter presupposes that the right to condemn exists, and its provisions can be availed of only by such persons or corporations as have the right.” In the case referred to above the proceedings were instituted by a chartered railroad company, given the power by statute to exercise the right of eminent domain. The application showed, prima facie at least, that the corporation seeking to condemn this land was given the power under the law to exercise the right of eminent domain. In other words, the corporation making the application for the organization of the court in the case supra was empowered under the law to exercise the right of eminent domain, and the application made showed this, and disclosed all jurisdictional facts necessary to authorize the clerk to organize the court, and the court was organized and proceeded to condemn the property.

The contention in the above cited case was that the corporation, although chartered under the state law as a railroad corporation, and although apparently having the right to condemn, in fact and in truth incorporated itself for the purpose of masquerading under its charter and condemning private property not for public use, but for private use, and that this constituted a fraud. We held in the Lumber Co. case that an issue of this sort could not be made in the eminent domain court, but that if the person or corporation seeking to condemn belonged to. the class of persons or corporations given the power to exercise the right of eminent domain under the law, and was attempting to exercise that right under this apparent authority of law, the only issue which could be raised in the eminent domain court, was one of damage, and that if there was a question as to the uses to which tire applicant intended to put the property, or a question as to whether or not the applicant had perpetrated a fraud by masquerading under a charter in order to obtain private property for a private use, these rights would have to be contested in the chancery court by enjoining the person or corporation so seeking to use private property “'for private purposes under the guise of being empowered to exercise the right of eminent domain. But the opinion in that case, as well as the statute, proceeds upon the idea that in the original application for the organization of the court, made to the clerk, the application itself showed on the face of it such jurisdictional facts as would warrant the clerk in issuing the order.

In this case Morgan does not add to himself any rights by joining in his petition the Cumberland Telephone Company over the protest of the latter. This application is his application, and the lawfulness of the organization of the court must be determined by whatever rights Morgan himself had under the law to exercise the right of eminent domain. He cannot be aided in his rights, or his rights be enlarged by joining in his petition the Cumberland Telephone Company against its will and calling it the plaintiff. The right of eminent domain can be exercised by such persons or corporations, and these only, to whom have been given the authority of the legislature. No such authority is shown to be given to Morgan in the application, and therefore the assembling of the pretended court was without authority and ultra vires.

The case of White v. Railroad Co., 64 Miss., 566, 1 South., 730, and the case of L. & N. R. R. Co. v. Hopson, 73 Miss., 773, 19 South., 718, have no application to this case. In both those cases the right was given the landowner in the charter, on the failure of the corporation seeking to take the land to institute eminent domain proceedings, to' make the application in place of the company. No such right is given here to Morgan: There may be a variety of remedies which Morgan can resort to, but the power to compel the telephone company to exercise the right of eminent domain against its will is not one of them.

It follows that, the eminent domain court having been convened without authority of law and without jurisdiction, all of its acts were void, and the motion to dismiss the proceedings should have been sustained. The eminent domain court being entirely without jurisdiction, the circuit court could acquire none. Jurisdiction is essential to the validity of all suits, civil or criminal, and, whenever a court acts without jurisdiction, all of its acts are nullities.

Reversed and dismissed.