For majority opinion see 336 S.W.2d 8.
[207 Tenn. 19] SWEPSTON, Justice (concurring).
On the whole, I agree with the opinion prepared for the Court by Mr. Justice BURNETT, but I would like to make the following comments.
With reference to Sec. 5 of the Act, which he holds to be violative of Art. I, Sec. 17 of our State Constitution, I call attention to Scott v. Nashville Bridge Company, 1919, 143 Tenn. 86, 223 S.W. 844. In upholding the constitutionality of our Workmen's Compensation statute it is said that this provision is a mandate to the judiciary and is not intended as a limitation on the legislative branch of the government.
A similar provision appears in many other state constitutions and in a number of such states, the same is held not to be a restriction on the legislature either in regard to remedy or to unreasonable delay. 16A C.J.S. Const.Law Sec. 709b citing the above case, and Sec. 719 note 27.5, citing Maury County v. Porter, 195 Tenn. 116, 257 S.W.2d 16.
[207 Tenn. 20] There is, however, no reference in this latter case to the statement in Scott v. Nashville Bridge Co., supra; if that opinion means that that part of said provision is a restriction on the legislature also, then I agree with the majority opinion that Sec. 5 violates same; otherwise, if it applies only to the judiciary, it would not be a warrant for holding the Act unconstitutional.
I would hold Sec. 5 invalid on another ground--the due process clause of the 14th Amendment to the Federal Constitution, as urged in the brief.
There seems to be no difference of opinion among us as to the validity of that part of Sec. 5 which requires a delay of six months after the project on any particular piece of property is completed. The rest of Sec. 5 requires a delay until a project on any particular land is completed, or for two years, whichever first occurs.
This is an unequivocal fiat of the legislature which fails to take into account different situations that will necessarily exist with respect to different owners or different tracts of land; e. g., when a non-access highway completely divides a farm so that the owner is left without a way from one part of the farm to the other, or where on a large plantation such a highway brings about the necessity for a long detour of 3 or 4 miles on the same owner's land in order for him to transfer operating machinery from one point to another point of a short distance of say four or five hundred feet, or again, where such highway merely cuts across a corner of a boundary of level land for a very short distance; in these and many other situations, the incidental damages can be determined at once by simple reference to the plans and specifications. Therefore, an enforced delay of a possible [207 Tenn. 21] two years in some cases is arbitrary legislation and denies such owner full compensation within a reasonable time after the property is taken. This is a denial of due process. Bragg v. Weaver, 251 U.S. 57, 40 S.Ct. 62, 64 L.Ed. 135; Simms v. Dillon, 1937, 119 W.Va. 284, 193 S.E. 331, 333, 113 A.L.R. 787, 791.
The latter case is relied on by Mr. Justice Tomlinson in his dissenting opinion for the point that the delay in the instant statute is reasonable. The statute there, however, did not specify a fixed, certain time of delay but used the elastic expression 'a reasonable time'. The opinion clearly shows that the question of reasonable time was left up to the court in the final analysis in each instance, because it states on page 335 of 193 S.E., on page 792 of 113 A.L.R., '* * * and if the State Road Commission should attempt to permit an unreasonable length of time to elapse and not pursue the work efficiently to completion, the court would, on proper motion of the landowner, require that the proceedings progress to final award or judgment.'
That, in my opinion, puts the finger on a defect in our statute, Sec. 5--it should not have provided a fixed period of two years maximum but should have left it to the discretion of the courts to permit or refuse final disposition at any time as the facts are made to appear to the court with regard to each owner.
It follows also that I can not agree with my brother, Tomlinson, that our statute should be sustained as a reasonable exercise of the police power of the state. On page 1227 of 16A C.J.S. Constitutional Law Sec. 719, from which opinion on page 14 of 336 S.W.2d quotes part of the text to the effect that the right to prompt justice is [207 Tenn. 22] subject to the legitimate exercise of the police power, the sentence continues thus: 'Although the state may not, under the police power, deprive one of his constitutional right to justice without delay when the legislation reasonably is not comprehended within the scope of police regulations.'
In support of the text is cited State ex rel. Roth v. Waterfield, 1933, 167 Okl. 209, 29 P.2d 24. There, on account of the great depression of 1929 and following, the legislature sought to regulate the foreclosure of mortgages by an act which provided in part that in all instances, whether suit be pending or was to be filed, etc., there should be a delay of nine months for the answer, or for trial and judgment, as the case might be. Said Sec. 1 of the act was held violative of the state constitutional provision corresponding to our Art. I, Sec. 17, and that it could not be sustained as a proper exercise of police power, as insisted, because it applied by its terms to all cases, in some of which there might be no necessity at all for such delay. See page 31 syl. 8 and 9 of 29 P.2d.
That is the same defect with Sec. 5 here being considered. As drawn, it is not sustainable as a proper exercise of police power, because it seeks to postpone final disposition of all cases regardless of whether there is a reasonable necessity for such postponement.
Finally, I think that the question in the majority opinion from Nashville Housing Authority v. Doyle, 197 Tenn. 555, 276 S.W.2d 722, is inappropriate. The quoted statement is not only dictum but is erroneous. It has been established in this state for a 100 years or better that no constitutional provision requires actual prepayment before property is taken. Simms v. Memphis C.s&s[207 Tenn. 23] L. R. R. Co., 59 Tenn. 621, 623; White v. Nashvilles&s Northwestern R. R., et al., 54 Tenn. 518, 541 bottom of page; State Highway Dept. v. Mitchell's Heirs, 142 Tenn. 58, 69, 216 S.W. 336; 29 C.J.S. Eminent Domain Sec. 187, p. 1073, which cites State Highway Dept. v. Mitchell Heirs, supra, and Liles v. Creveling, 151 Tenn. 61, 268 S.W. 625; and 29 C.J.S., supra, Sec. 188, subsec. b, p. 1082.
These authorities fully explain that it is not necessary that the landowner shall be paid immediately before possession or title to his property is taken, but that he shall be made certain that in the final determination of the condemnation proceedings he will obtain adequate compensation; furthermore, the difference in the form of security is pointed out between a situation where the state, or an arm thereof, takes the property as contrasted with a situation where a private individual or corporation is the condemnor.
I have seen fit to point out the last matter above simply because the statement has been made publicly by some able and prominent members of the Bar that the part of the act is unconstitutional wherein under Sec. 2 (T.C.A. Sec. 23-1529) the condemnor is permitted to determine the amount of the deposit to be made in advance. Obviously, that view is not correct, because Sec. 1 of the act is limited in its language to the state, its counties or municipalities, and under Sec. 2 (TCA Sec. 23-1527) Sec. 1 is not only limited to the governmental authorities, but there are expressly excluded from the act any housing authority, association or administration. The act, therefore, eliminates any question as to whether or not the landowner is adequately protected, because he is protected by the taxing power.