Engelhardt v. Jenkins

141 So. 2d 193, 273 Ala. 352, 1962 Ala. LEXIS 369

• Court: Supreme Court of Alabama
• Decided: March 29, 1962
• Docket: 7 Div. 552
• Status: Published

Opinions

SIMPSON, Justice.

This appeal challenges the correctness of a decree of the Circuit Court in Equity of St. Clair County, overruling appellant’s demurrer to appellees’ amended bill of complaint.

The single question presented is whether this is a suit against the State in violation of § 14, Constitution of 1901. Appellant confines his argument to this one point.

The bill as amended' alleges that the appellees are joint owners of certain lands in St. Clair County, that a proceeding of condemnation was undertaken in said county to condemn said lands for right of way purposes ; that, appellees received no notice of said condemnation proceeding but that the said proceeding terminated in a decree or order of condemnation in the probate court and that the appellant took possession of said property, resulting in the appellees’ property being taken without just compensation and without due process of law.

In essence the case made by the bill as amended shows that the property of appellees was being taken by appellant without proper condemnation proceeding and without paying them just compensation therefor, as the constitution and statute require. If this be so, this is taking private property by the State without due process in violation of both State and Federal constitutions.- — §§ 23 and 235, Alabama Constitution 1901; United States Constitution, 14th Amendment, § 1.

That courts of equity have jurisdiction to enjoin such conduct there can be no doubt. This court, speaking through'the elder Justice Coleman observed in Birmingham Traction Co. v. Birmingham Railway -Electric Co., 119 Ala. 129, 132-133, 24 So. 368, 371, 43 L.R.A. 233 :

“Whenever any person, corporation, or authority, vested with the power of eminent domain, undertakes to exercise such power;, by appropriating private property to its own use or benefit, without first complying with the constitution, a court of equity has jurisdiction to enjoin such undertaking, until compensation has been first paid to the owner, his title or interest being admitted or clear, and that without regard to the solvency or insolvency of the party or corporation proposing to exercise such authority.” [Emphasis added.]

’ An apt quotation in that case from East and West R. R. Co. v. East Tennessee, Va. & Ga. R. R. Co., 75 Ala. 275, 280, by Chief Justice Brickell, also states the principle:

“The constitution not only compels all corporate bodies, public or private, or all individuals who may be armed ' with the power of taking private prop- • erty, but it compels the State and all its agencies and instrumentalities, to the duty of first making just compensation to the owner.”

See also Mobile and Montgomery Ry. Co. v. Alabama Midland Ry. Co., 123 Ala. 145, 160, 26 So. 324; Memphis & Charleston R. R. Co. v. Birmingham, Sheffield, & Tenn. River Ry. Co., 96 Ala. 571, 576, 11 So. 642, 18 L.R.A. 166.

And in an equitable proceeding to enforce this constitutional right the damages or amount of compensation due the property owner may be ascertained and awarded. Benson v. Pickens County, 253 Ala. 134, 43 So.2d 113; Folmar v. Brantley, 238 Ala. 681, 193 So. 122; Hargett v. Franklin County, 212 Ala. 423, 103 So. 40.

This being the posture of the case and governed by the foregoing authorities, no sort of rationale can bring the case within the ban of § 14 of our constitution, prohibiting suits against the State or its agencies. Cle'arly, if the allegations of the bill as amended be true, and they are so taken on demurrer, appellant was acting beyond his authority in taking or attempting to use appellees’ property for State purposes without proper legal proceeding and making just compensation therefor. As this court observed in Smith v. Inge, 80 Ala. 283, 287:

“The State itself, * * * , in the exercise of its right of eminent domain, could not constitutionally condemn private property * * * without a regular judgment of condemnation, in a proper judicial proceeding, first making payment of just compensation to the owner.”

This case seems to fall more within the influence of the case of Finnell v. Pitts, 222 Ala. 290, 132 So. 2, where the late Justice Foster in commenting on the Finnell case, stated in the later case of State Docks. Commission v. Barnes, 225 Ala. 403, 405, 143 So. 581, 582:

“There [Finnell’s case], state officers had exceeded their legal authority and had taken property without due process, and applied it to state uses. The state was of course not liable nor suable, though the officers were the state highway commissioners acting for it in constructing a state road.”

It results as our conclusion that the point argued by appellant is without merit.

Affirmed.

LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur.