Opinion
14416
January 18, 1937.
Before BELLINGER, J., Richland, May, 1936. Affirmed.
Suit for injunction by John W. Jennings and others against Ben M. Sawyer and others, as and constituting the South Carolina Highway Commission. From a decree dissolving a temporary restraining order and dismissing the complaint, plaintiffs appeal.
The order of Judge Bellinger is as follows:
The State Highway Department, by virtue of statutory authority, commenced proceedings to condemn a right-of-way over and through plaintiffs' lands for the relocation of United States Highway No. 76, between Columbia and Newberry, at a point beginning west of the Broad River bridge near Columbia. Pursuant to a notice of condemnation, served on the plaintiffs, a hearing was held on May 5, 1936, at Columbia, by a duly constituted Condemnation Board, at which the plaintiffs and their attorneys were present. Testimony was taken as to the amount of land involved and the damages resulting thereto. Thereafter, on or about the 15th day of May, 1936, and before the board assessed damages, this action was commenced by plaintiffs to enjoin the proceedings and to restrain the defendants, the Chief Highway Commissioner and members of the State Highway Commission, from interfering in any manner with the possession and ownership of the said lands. Upon application of the plaintiffs, a temporary order of injunction was granted against the defendants, and a rule to show cause issued at the same time. The defendants filed return and answer to the complaint and the matter came on to be heard before me on Friday, July 3, 1936.
At the hearing plaintiffs proposed certain amendments to their complaint, which were allowed without objection. They also moved to make the return and answer more definite and certain in several particulars, to wit:
"1. To make definite and certain what, of the functions of the Highway Commission alleged by the plaintiffs in paragraph 2 of their Complaint the defendants admit as `correctly stated.'
"2. What of the functions of the Highway Commission alleged by the plaintiffs in paragraph 2 of their Complaint the defendants deny.
"3. To make definite and certain to what statutes the Court is referred by the defendants with respect to the duties and authority of the Highway Commission.
"4. To make definite and certain what allegation, allegations, part and parts of paragraphs 13, 14, 15 and 16 of the Complaint the defendants admit `as correctly stated the law.'
"5. To make definite and certain what allegation, allegations, part or parts of paragraphs 13, 14, 15, and 16, the defendants deny.
"6. To make definite and certain what allegation, allegations, part and parts, of paragraph 20 of the plaintiffs' Complaint the defendant admits `as correctly states' the law.
"7. To make definite and certain what allegation, allegations, part and parts of paragraph 20 of the Complaint the defendants deny.
"8. To make definite and certain what allegation, allegations, part and parts of paragraph 22 the defendants admit `as correctly alleged the rights of the plaintiffs in reference to the obligation of contracts under the Constitution of the United States and the Constitution of South Carolina.'
"9. To make definite and certain what `remaining allegations' of paragraph 22 of plaintiffs' Complaint the defendants deny."
The allegations of the return and answer questioned deny certain conclusions of law except as correctly stated, and refer to the statutes as to the duties and functions of the defendants. As no matters of fact are involved in the questions raised, and the allegations as to the conclusions of law are sufficiently definite to enable plaintiffs to determine the legal position taken by defendants, the motion is refused.
The plaintiffs further moved to strike from the return and answer the affidavit of J.S. Williamson. This motion is also refused, as the said affidavit supports certain allegations of the return and answer, which set forth the reasons for relocating the highway through plaintiffs' lands.
The plaintiffs also demurred to the sixth, eighteenth, and nineteenth paragraphs of the defendant's answer. The sixth paragraph of the answer set up the defense of estoppel. I am convinced that the mere participation of plaintiffs in the condemnation hearing, does not constitute estoppel so as to prevent plaintiffs from bringing this action, and I think that ground of the demurrer should be sustained. The eighteenth paragraph of the return and answer sets forth the reasons why the highway should be relocated, and is intended as a defense to the allegations in plaintiffs' complaint that the State Highway Department is attempting to act in a capricious manner and in abuse of its discretion. This is a proper defense and that ground of the demurrer is overruled. The nineteenth paragraph of the return and answer alleges that plaintiffs have a complete and adequate remedy at law and are, therefore, not entitled to equitable relief. The demurrer is overruled as to this paragraph, the reasons therefor will be stated further on in this order.
The plaintiffs assailed the constitutionality of Sections 5813, 5822, 5921, 5923, and 5924 of Volume 3 of the Code of 1932, upon the grounds that said sections are in violation of Section 14 of Article 1 and Section 17 of Article 1 of the Constitution of South Carolina, in that the said statutes attempt to bestow upon the Highway Commission both administrative and judicial function in the condemnation of private property for State purposes. It is to be observed that Section 5822 has no bearing on this case, as that section has reference only to the duties of road overseers in connection with property in their care. The other sections, Sections 5813, 5921, 5922, 5923, and 5924, provide the manner and the procedure to be followed in acquiring rights-of-way by condemnation for State highways.
Under these statutes the Governor is authorized to appoint a list of citizens of the State, who shall be eligible to serve on condemnation boards, for the purpose of condemning property required by the State Highway Department for use in the construction and maintenance of State highways; and the members of the State Highway Commission may also act. From this list of eligibles the State Highway Commission is authorized to designate three or more individuals to act as a board of condemnation, who shall follow the procedure in condemning property for rights-of-way of State Highways, etc., as prescribed in Section 5813 for condemning rights-of-way for county highways. Under this section, notice of condemnation is served upon the landowner, or his legal representative, to appear at some designated place and date for a hearing as to the amount of land taken and the damage thereto. After which hearing, the Condemnation Board makes an award as to the damages, which is served upon the landowner, or his representative, who is thereupon allowed ten days in which to appeal to the Court of Common Pleas to have the damages assessed by a jury. The Condemnation Board is merely a fact-finding body which ascertains and passes upon the rights of the landowner. It is in no sense a Court with judicial functions in the commonly accepted meaning of the term. Hutchison v. York County, 86 S.C. 396, 68 S.E., 577; Gilmer v. Hunnicutt, 57 S.C. 166, 35 S.E., 521, 523; Riley v. Charleston Union Station Company, 71 S.C. 457, 51 S.E., 485, 110 Am. St. Rep., 579. In the case of Hutchison v. York County, supra, the Court said: "Furthermore, it is to be noted that the statutory provisions in question, even if they could be considered as making the board judges in any sense, certainly do not constitute the board the final judges of the matter in controversy, but merely directs that the members thereof shall ascertain the amount of compensation to be paid or offered by the county for the use of such land as a public highway. In effect, it is provided that when the amount of the just compensation to be paid by the county is ascertained as therein required, that amount shall be tendered by the County Board of Commissioners to the owner of the land, and that, unless the same is rejected by such owner by written notice given within ten days thereafter, such amount shall be deemed as accepted as the just compensation to which the owner is entitled. It is evident from the provisions of the statute that the board of County commissioners do not act in a judicial capacity in making this assessment any more than they act judicially in passing upon any other claim against the county." (Italics added.)
This question is, therefore, without merit.
Plaintiffs contend that there is no provision in the Constitution of South Carolina, whereby private property may be condemned by the State or any of its departments or agents, but that the only authority in the Constitution for condemnation of private property is contained in Section 20 of Article 9 and Section 17 of Article 1, which authorizes condemnation by corporations only. This position is untenable. Hutchison v. York County, supra; Gilmer v. Hunnicutt, supra; Paris Mountain Water Co. v. City of Greenville, 110 S.C. 36, 96 S.E., 545, 551.
In discussing this particular question, the Court, in the case of Paris Mountain Water Company v. City of Greenville, supra, had this to say: "The primary right to acquire rests in eminent domain, and that power resides in the State of right and by necessity; the Constitution did not create it, but has only affirmed it (Article 14), and limited its exercise (Article 1, § 17; Article 9, § 20). The exercise of the right resting in the Legislature, that body may prescribe how it shall be exercised. 10 R.C.L., pages 11-14, and cases cited. Kohl v. U.S., 91 U.S. [367], 371, 23 L.Ed., 449. * * * The power of eminent domain is more frequently committed by the State to its accredited agencies than it is exercised directly by the State. 10 R.C.L. page 195."
It is next contended that the statutes are in conflict with "Section 5 of Article 1 of the Constitution of the State of South Carolina and the Fourteenth Amendment of the United States Constitution" and also the Seventh Amendment of the Constitution of the United States, upon the grounds that the said statutes deprive the plaintiffs of their property without due process of law, and takes away from them the right of trial by jury; that the statutes are in conflict with "Section 25 of Article 1 of the Constitution of South Carolina," which provides that the right of trial by jury will be preserved inviolate; also violative of Section 1 of Article 14 of the Amendments to Constitution of the United States, Section 5 of Article 1 and Section 17 of Article 1 of the Constitution of South Carolina, in that upon appeal, unless the landowner shall recover 20 per cent. more as his damages than was awarded by the commission, he shall be charged with the costs of the action, the contention being that this deprives the appellant of equal protection of the law. The statutes are further attacked upon the grounds that they violate Section 20 of Article 9 of the Constitution of South Carolina, which authorizes corporations to condemn for the reason that no benefits to the landowner are to be taken into consideration in making the award of compensation. I do not feel that it is necessary to go into an extended discussion and citation of authorities as to these questions. They have all been passed upon adversely to plaintiffs' contention in the cases already cited, and the additional cases of Bramlett v. City Council, 88 S.C. 110, 70 S.E., 450; Wilson v. Greenville County, 110 S.C. 321, 96 S.E., 301, which hold, in effect, that when the landowner is given due notice that his property will be condemned, and that he may appeal to the Court of Common Pleas from the award of the Condemnation Board, and have his damages passed upon by a jury, the requirements of the Constitution as to equal protection of the law, due process of law and trial by jury, are satisfied. Further, the provisions of the law which assess costs in case of appeal, against the landowner, unless the jury awards him 20 per cent. more than was awarded by the Condemnation Board, is a matter of procedure and is not violative of the equal protection clause of the State and Federal Constitutions, it being a condition which every landowner is subjected to in a condemnation proceeding. Neither is the provision in the statutes whereby benefits may be balanced against damages, violative of plaintiffs' constitutional rights. This particular question was passed upon adversely to plaintiffs in the case of Wilson v. Greenville County, supra.
Plaintiffs also contend that condemnation proceedings by the State of private property for public use is an "action" in contemplation of Section 2 of the Code of South Carolina, 1932, and Section 17 of Article 1 of the Constitution of South Carolina, and of the Seventh Amendment of the Constitution of the United States, and that such proceedings should be commenced by service of a summons and complaint; and that the defendant in so failing has not complied with the laws of the State of South Carolina nor of the United States. Our Court has held in numerous cases that a condemnation proceeding is not such an action as should be commenced by service of summons and complaint, but is a special proceeding. In the case of Gilmer v. Hunnicutt, supra, the Court, in discussing this question, said: "The proceeding to condemn land for a public road, and assess compensation, was a special proceeding and not an action at law, such as under the practice prevailing at the adoption of the Constitution entitled to a common-law jury. Construing Article 1, §§ 14, 23, the Court, by Chief Justice Simpson, in State v. Stackhouse, 14 S.C. [417], 424, speaking with reference to Section 23, said: `It simply delegates the power in general terms to make laws for that purpose (securing right-of-way), leaving the character and terms of the laws to the lawmaking power of the State; the only condition being that a just compensation shall first be made to the owner of the property required to be sacrificed.' And in that case the Court held constitutional an Act to empower a landowner to secure a right-of-way over lands of others through referees, who were authorized to establish the road and award damages. The power sought to be exercised in the Act in question belongs to the power of eminent domain, which is clearly applicable to the establishment and maintenance of public highways, so essential to the public welfare. In 6 Am. Eng. Enc. Law (2d Ed.) page 980, the following principle is stated, and sustained by many cited cases: `In the proceedings incident to the exercise of eminent domain, the citizen is not, as a matter of right, entitled to a common-law jury to assess his compensation, unless the constitution so provides, in which latter case the right is absolute, regardless of statute.'"
Under the above-cited authority, the landowner, in condemnation proceedings, is not deprived of any constitutional or statutory rights by failure of the condemnor to commence the proceedings by service of summons and complaint.
The plaintiffs further allege that the statute in question violates Section 10 of Article 1 of the Constitution of the United States, and the Seventh and Fourteenth Amendments of the Constitution of the United States, and Section 5 of Article 1, and Section 17 of Article 1 of the Constitution of South Carolina; that said statutes impair the obligation of the contracts of the State of South Carolina with the plaintiffs, to protect them in ownership of their property sought to be condemned for a public use without due process of law, and in violation of Section 5 of Article 1, Section 17 of Article 1 of the Constitution of South Carolina, Section 1 of the Fourteenth Amendment and Section 10 of Article 1, and the Fifth Amendment of the Constitution of the United States. Without further citation and discussion of authorities, it suffices to say that there is no merit to the questions raised upon these grounds as the authorities already cited show that the condemnation statutes fully comply with the constitutional requirements.
It is further contended that the said statutes are in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States, of Section 10 of Article 1 of the Constitution of the United States, Section 5 of Article 1 and Section 17 of Article 1 of the Constitution of South Carolina, in that the defendants may abandon the condemnation proceedings before actually taking possession of plaintiffs' lands, despite the fact that plaintiffs had been put to expense necessary for the protection of their rights. This question has been passed upon in the case of Haig v. Wateree Power Company, 119 S.C. 319, 112 S.E., 55; South Carolina State Highway Department v. Bobotes et al., 180 S.C. 183, 185 S.E., 165. In these cases numerous authorities are cited to the effect that in the absence of statutory authority, the condemnor may abandon the property condemned at any time before taking actual possession and entering thereupon. It is only when property is actually taken by the condemnor that the right of compensation to the landowner accrues, and then the condemnor cannot abandon the condemned property, but must compensate the owner. It, therefore, stands that until the property is taken, the landowner is not entitled to compensation, and abandonment by the condemnor is not violative of the constitutional rights of the landowner.
Having disposed of the various questions raised as to the constitutionality of the statutes, the next, and final question is whether or not the highway department, in relocating the highway through plaintiffs' lands, is acting within its statutory authority.
Plaintiffs allege that in 1921 the Richland County Board of Commissioners, for the purpose of constructing the highway between the Cities of Newberry and Columbia, condemned a right-of-way through the entire width of their property and constructed a paved highway, which was taken over by the State Highway Department and is now a part of United States Highway No. 76. It is further alleged that the proposed condemnation for the relocation of the said highway is wholly unnecessary, capricious, arbitrary, and unreasonable. The defendants, by their return and answer, which is supported by the affidavit of J.S. Williamson, Chief Highway Engineer, deny these allegations and allege to the contrary that the present location of the road, by reason of extremely sharp and dangerous curves, is impracticable for the safe operation of automobiles and other vehicles. It is shown that the present road has a paved surface of only 16 feet in width, and beginning at the west end of the Broad River bridge and extending towards Newberry for a distance of approximately three-quarters of a mile through the Jennings estate; that there are two reverse or "S" curves; that the maximum sight distance in one or more places is less than 400 feet; and that the steep grade of the road, with a high embankment on one side and a deep ravine on the other side, increases the traffic hazard caused by the said curves. It is further alleged that this is a very heavily traveled road, it being on United States highway from Chatanooga, Tenn., to Wilmington, N.C., and is also adjacent to the city of Columbia, where there is a large volume of traffic. Observation shows that the average traffic between the hours of 7 A.M. and 7 P.M., is approximately 1,500 cars daily, with a much larger volume on week-ends; that numerous accidents have occurred and as traffic increases, it is reasonably to be expected that accidents will increase proportionately. It is shown that the proposed relocation will straighten the road and eliminate the dangerous curves, making it safer for traffic. It is also shown by the blueprint, which is one of the exhibits in both the complaint and return and answer that the relocation will extend for approximately three-quarters of a mile through the Jennings property but will only be a few hundred feet from the present highway at the farthest point. I am of the opinion that the proposed relocation is the most practicable route to be followed and is necessary to eliminate the hazardous condition now existing and will conform to the best engineering practices.
The Court in the case of Hargrove v. Sawyer, Highway Commissioner, 149 S.C. 79, 146 S.E., 685, 686, quoted with approval from the case of Boykin v. State Highway Department, 146 S.C. 483, 144 S.E., 227, the following language: "Giving, however, to this provision of the Act of 1927 a broader construction, we think it may be held that the Legislature thereby intended to imply that the State Highway Department, in the building and construction of any highway named in the Act of 1924, or that might at any time be included in the highway system, is vested with the power and authority in its discretion to make, subject to the controlling factors indicated in the Act, as determining the routes to be followed, such relocation of roads as will conform to the best engineering knowledge in road construction. But such relocation of the road to be constructed must be made without destroying the identity of the route designated in the Act."
From an examination of the exhibits and pleadings, I am convinced that the State Highway Department, in relocating the highway at the point in question, is acting within its lawful authority, and that there is no abuse of discretion on its part.
It is, therefore, ordered, adjudged and decreed, that the temporary restraining order be dissolved and that the complaint be dismissed.
Messrs. Jennings Jennings, Marion B. Jennings and John W. Jennings, for appellants, cite: Appeal: 185 S.E., 165; 119 S.E., 319; 112 S.E., 55; 11 S.C. 122; 34 S.C. 345; 13 S.E., 530; 8 S.C. 112.
Messrs. John M. Daniel, Attorney General, J. Ivey Humphrey and M.J. Hough, Assistant Attorneys General, for respondents, cite: Adequate remedy at law: Secs. 5813, 5921, 5922, 5923, 5924, Code 1932; 86 S.C. 396; 159 S.C. 481; 157 S.E., 927; 10 R.C.L., 228. Eminent domain: 110 S.C. 36; 96 S.E. 545; 91 U.S. 371; 23 L.Ed., 449.
January 18, 1937. The opinion of the Court was delivered by
On the hearing of the appeal in this case, counsel for appellants persuasively argued the two questions stated. We think, however, from a careful study of the entire matter, to which we have given much time and consideration, that the Circuit Judge, under the decisions cited by him, correctly answered and disposed of these questions, as well as all others raised in the Court below. Very little, if anything can be added to what he has said without the risk of unnecessary repetition. As we have held, the power of eminent domain resides in the state of right and by necessity, and the General Assembly may prescribe how this right should be exercised. The South Carolina State Highway Department is a department of the State government created for a special purpose, and a suit against it is "actually a suit against the State." Fann v. State Highway Department, 155 S.C. 219, 152 S.E., 429, 430. If any change in the procedure complained of by the appellants is desirable, the matter is one for the attention of the legislature.
The Circuit Court's decree, which will be reported, is affirmed.
MESSRS. JUSTICES CARTER, BONHAM, BAKER and FISHBURNE concur.