HUXMAN, Circuit Judge.
Appellant, the Grand River Dam Authority, a public corporation, instituted condemnation proceedings against appellee A. M. Jarvis to acquire a tract of land owned by him. Commissioners were appointed to appraise the property and fix the award. They fixed a total aggregate value of the property of $5,895. On April 2, 1940, after having demanded a jury trial, appellant deposited the amount of the award in court, together with an impounding fee of one per cent, and took possession of the property. The court thereafter, upon application of appellee, directed the clerk to distribute the funds as follows:
To:
The Federal Land Bank of Wichita, a corporation, mortgagee $1,967.86
Catherine Robinson, et al., Trustees of the estate of James F. Robinson, deceased, mortgagees .......................... 1,120.00
Russell Doss, County Treasurer of Ottawa County, Oklahoma, taxes ..................... 11.98
A. M. Jarvis, landowner..... 2,795.16
On March 12, 1941, a trial was had by jury, which resulted in a verdict reducing the award to $5,000. Thereafter, on March 17, 1941, appellant filed a motion to tax all costs of the proceeding subsequent to the [916]*916commissioners’ proceedings against the landowner and the mortgagees, and for judgment against appellee and the mortgagees for the $895, together with interest thereon at the rate of six per cent from April 2, 1940, the date on which the money was deposited in court. The court entered judgment in favor of appellant and against appellee Jarvis ■ for $895, together with interest at six per cent from the date of the judgment, and taxed all costs to appellant. From this judgment appellant has appealed, assigning as error: First, the refusal of the court to assess all costs subsequent to the commissioners’ proceedings against appellee; second, the refusal of the court to enter judgment against the two mortgagees for return of the $895; and, third, the refusal of the court to enter judgment in favor of appellant-for interest from the date it deposited the amount found due by the commissioners in court.
Sec. 24, Art. 2 of the Oklahoma Constitution, Okl.St.Ann., provides that: “Private property shall not be taken or damaged for public use without just compensation.” It further provides that such compensation shall be ascertained by a Board of Commissioners of not less than three freeholders appointed in such manner as may be prescribed by law, and that any party aggrieved shall have the right of appeal without bond, and trial by jury in a court of record.
'The primary and most serious question presented is whether assessing any part of the costs in the condemnation proceedings on appeal subsequent to the commissioners’ proceedings against appellee violates the constitutional provision which provides for just compensation.
Without exception, the decisions hold that in an original proceeding for the condemnation of land the costs arising in that proceeding fall bn the condemnor. The reason therefor is that to take the land against the landowner’s wishes and then charge him for the cost of taking would violate the constitutional prohibition against the taking of private property without just compensation. Lewis on Eminent Domain, 3rd Ed., Sec. 812, states the rule as follows: “It seems to us that courts should be guided by the following' principles and consideration- in the matter of costs: By the Constitution the owner is entitled to just compensation for his property taken for public 'use. He is entitled to receive this compensation before his property is taken or his possession disturbed. If the parties qannot agree upon the amount, it must be ascertained in the manner provided by law. As' the property cannot be taken until the compensation is paid, and as it cannot be paid until it is ascertained, the duty of ascertaining the amount is necessarily cast upon the party seeking to condemn the property, and he should pay all the expenses which attach to the process. Any law which casts this burden upon the owner should, in our opinion, be held to be unconstitutional.”
A different question arises where the law provides for a review of the condemnation proceedings by appeal and for the assessment of costs against the landowner' therein. There is a well reasoned line of cases which holds that where an appeal is taken, costs may not be assessed against the landowner no matter by whom the appeal is taken and no matter what the outcome thereof. The rationale of this holding is that an appeal is but another step in the condemnation proceeding seeking to establish the compensation of the owner. These cases hold that an appeal is merely a continuation of the condemnation proceedings and that no part of the cost thereof may be assessed against the landowner, City of Oakland v. Pacific Coast Lbr. & Mill Co., 172 Cal. 332, 156 P. 468, Ann.Cas.l917E, 259; In re New York, West Shore & Buffalo Ry. Co., 94 N.Y. 287; Lewis on Eminent Domain, § 559; Peoria, B. & C. Traction Co. v. Vance, 251 Ill. 263, 95 N.E. 1081, 36 L.R.A.,N.S. 624, Ann.Cas.1912C, 532.
- There is another line of cases which holds that the condemnation proceedings end with the determination .of the award by the tribunal established for that purpose, and that an appeal thereafter is a separate proceeding and that allowing costs on appeal as in other cases does not violate a constitutional provision requiring just compensation to the owners of the land taken under the power of eminent domain. Douglas et al. v. Indianapolis & N. W. Traction Co., 37 Ind.App. 332, 76 N.E. 892; Moffat v. City and County of Denver, 57 Colo. 473, 143 P. 577; Music v. Big Sandy & K. R. Co., 163 Ky. 628, 174 S.W. 44, Ann.Cas.1916E, 689.
Sec. 11933, O.S.1931, 66 Okl.St.Ann. § 55, provides for a review of the report of the commissioners by the District Court upon written exceptions filed by either party within sixty, days, and that the court may thereupon either confirm, reject [917]*917or order new appraisement on good cause shown. This section provides further that if either party does not wish a review by the District Court, it may within thirty days demand a trial of the issue by a jury; that where review is had by the District Court it shall make such order therein as right and justice may require; that where a trial is had by a jury it shall be conducted and judgment entered in the same manner as civil actions in the District Court; that if the party demanding such trial does not recover a verdict more favorable to him than the assessment of the commissioners, all costs in the District Court may be taxed against him.
Sec. 11934, O.S.1931, 66 Okl.St.Ann. § 56, provides that either party aggrieved •may appeal from the decision of the District Court to the Supreme Court; that in no case shall the corporation be liable for the costs on review or appeal unless the .owners of such real property shall be adjudged entitled upon either review or appeal to a greater amount of damages than was awarded by the commissioners. Literally construed, there is an apparent conflict in the provisions of these two sections. However, a rational consideration of the ,two sections together leads to the conclusion that the award of the commissioners .constitutes prima facie adjudication or just .compensation; that if either party is ag•grieved it may appeal, and if it is suc.cessful in overturning the award it is entitled to recover the costs of such review or appeal, but if unsuccessful the court •may in its discretion tax the costs against -the unsuccessful party.
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HUXMAN, Circuit Judge.
Appellant, the Grand River Dam Authority, a public corporation, instituted condemnation proceedings against appellee A. M. Jarvis to acquire a tract of land owned by him. Commissioners were appointed to appraise the property and fix the award. They fixed a total aggregate value of the property of $5,895. On April 2, 1940, after having demanded a jury trial, appellant deposited the amount of the award in court, together with an impounding fee of one per cent, and took possession of the property. The court thereafter, upon application of appellee, directed the clerk to distribute the funds as follows:
To:
The Federal Land Bank of Wichita, a corporation, mortgagee $1,967.86
Catherine Robinson, et al., Trustees of the estate of James F. Robinson, deceased, mortgagees .......................... 1,120.00
Russell Doss, County Treasurer of Ottawa County, Oklahoma, taxes ..................... 11.98
A. M. Jarvis, landowner..... 2,795.16
On March 12, 1941, a trial was had by jury, which resulted in a verdict reducing the award to $5,000. Thereafter, on March 17, 1941, appellant filed a motion to tax all costs of the proceeding subsequent to the [916]*916commissioners’ proceedings against the landowner and the mortgagees, and for judgment against appellee and the mortgagees for the $895, together with interest thereon at the rate of six per cent from April 2, 1940, the date on which the money was deposited in court. The court entered judgment in favor of appellant and against appellee Jarvis ■ for $895, together with interest at six per cent from the date of the judgment, and taxed all costs to appellant. From this judgment appellant has appealed, assigning as error: First, the refusal of the court to assess all costs subsequent to the commissioners’ proceedings against appellee; second, the refusal of the court to enter judgment against the two mortgagees for return of the $895; and, third, the refusal of the court to enter judgment in favor of appellant-for interest from the date it deposited the amount found due by the commissioners in court.
Sec. 24, Art. 2 of the Oklahoma Constitution, Okl.St.Ann., provides that: “Private property shall not be taken or damaged for public use without just compensation.” It further provides that such compensation shall be ascertained by a Board of Commissioners of not less than three freeholders appointed in such manner as may be prescribed by law, and that any party aggrieved shall have the right of appeal without bond, and trial by jury in a court of record.
'The primary and most serious question presented is whether assessing any part of the costs in the condemnation proceedings on appeal subsequent to the commissioners’ proceedings against appellee violates the constitutional provision which provides for just compensation.
Without exception, the decisions hold that in an original proceeding for the condemnation of land the costs arising in that proceeding fall bn the condemnor. The reason therefor is that to take the land against the landowner’s wishes and then charge him for the cost of taking would violate the constitutional prohibition against the taking of private property without just compensation. Lewis on Eminent Domain, 3rd Ed., Sec. 812, states the rule as follows: “It seems to us that courts should be guided by the following' principles and consideration- in the matter of costs: By the Constitution the owner is entitled to just compensation for his property taken for public 'use. He is entitled to receive this compensation before his property is taken or his possession disturbed. If the parties qannot agree upon the amount, it must be ascertained in the manner provided by law. As' the property cannot be taken until the compensation is paid, and as it cannot be paid until it is ascertained, the duty of ascertaining the amount is necessarily cast upon the party seeking to condemn the property, and he should pay all the expenses which attach to the process. Any law which casts this burden upon the owner should, in our opinion, be held to be unconstitutional.”
A different question arises where the law provides for a review of the condemnation proceedings by appeal and for the assessment of costs against the landowner' therein. There is a well reasoned line of cases which holds that where an appeal is taken, costs may not be assessed against the landowner no matter by whom the appeal is taken and no matter what the outcome thereof. The rationale of this holding is that an appeal is but another step in the condemnation proceeding seeking to establish the compensation of the owner. These cases hold that an appeal is merely a continuation of the condemnation proceedings and that no part of the cost thereof may be assessed against the landowner, City of Oakland v. Pacific Coast Lbr. & Mill Co., 172 Cal. 332, 156 P. 468, Ann.Cas.l917E, 259; In re New York, West Shore & Buffalo Ry. Co., 94 N.Y. 287; Lewis on Eminent Domain, § 559; Peoria, B. & C. Traction Co. v. Vance, 251 Ill. 263, 95 N.E. 1081, 36 L.R.A.,N.S. 624, Ann.Cas.1912C, 532.
- There is another line of cases which holds that the condemnation proceedings end with the determination .of the award by the tribunal established for that purpose, and that an appeal thereafter is a separate proceeding and that allowing costs on appeal as in other cases does not violate a constitutional provision requiring just compensation to the owners of the land taken under the power of eminent domain. Douglas et al. v. Indianapolis & N. W. Traction Co., 37 Ind.App. 332, 76 N.E. 892; Moffat v. City and County of Denver, 57 Colo. 473, 143 P. 577; Music v. Big Sandy & K. R. Co., 163 Ky. 628, 174 S.W. 44, Ann.Cas.1916E, 689.
Sec. 11933, O.S.1931, 66 Okl.St.Ann. § 55, provides for a review of the report of the commissioners by the District Court upon written exceptions filed by either party within sixty, days, and that the court may thereupon either confirm, reject [917]*917or order new appraisement on good cause shown. This section provides further that if either party does not wish a review by the District Court, it may within thirty days demand a trial of the issue by a jury; that where review is had by the District Court it shall make such order therein as right and justice may require; that where a trial is had by a jury it shall be conducted and judgment entered in the same manner as civil actions in the District Court; that if the party demanding such trial does not recover a verdict more favorable to him than the assessment of the commissioners, all costs in the District Court may be taxed against him.
Sec. 11934, O.S.1931, 66 Okl.St.Ann. § 56, provides that either party aggrieved •may appeal from the decision of the District Court to the Supreme Court; that in no case shall the corporation be liable for the costs on review or appeal unless the .owners of such real property shall be adjudged entitled upon either review or appeal to a greater amount of damages than was awarded by the commissioners. Literally construed, there is an apparent conflict in the provisions of these two sections. However, a rational consideration of the ,two sections together leads to the conclusion that the award of the commissioners .constitutes prima facie adjudication or just .compensation; that if either party is ag•grieved it may appeal, and if it is suc.cessful in overturning the award it is entitled to recover the costs of such review or appeal, but if unsuccessful the court •may in its discretion tax the costs against -the unsuccessful party.
There is present here no federal .question. It is simply a question of examining a legislative enactment in the light ■ of the state constitution to determine if authority exists in the constitution for the ■ enactment of the statute. We are asked to ■ declare a state law unconstitutional, to say that the legislature exceeded its constitutional authority in the passage of the law. The Supreme Court of ■ the State of Oklahoma has not spoken in this matter and we lack a controlling decision from that court to guide us in resolving the ■ question. The matter is, however, properly before us for decision. It is well' established by federal decisions that in'such a case all doubt and uncertainty will be resolved in favor of constitutionality and that ■only in the clearest of cases will a federal ■court hold that .the legislature has violated the state constitution. In Fletcher v. Peck, 6 Cranch 87, 128, 3 L.Ed. 162, it was held that a federal court will not declare a state law unconstitutional unless the opposition between the constitution and the law be clear and plain. In Ogden v. Saunders, 12 Wheat. 212, 270, 6 L.Ed. 606, the Supreme Court said: “It is but a decent respect due to the wisdom, the integrity and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity, until its violation of the constitution ■ is proved beyond all reasonable doubt.” In Michigan Central R. R. v. Powers, 201 U.S. 245, 291, 26 S.Ct. 459, 461, 50 L.Ed. 744, Justice Brewer said: “All objections to the validity of the act, whether springing out of the state or of the Federal Constitution, may be presented in a single suit, and call for consideration and determination. At the same time the. Federal courts will be reluctant to adjudge a state statute to be in conflict with, the state Constitution before that question has been considered by the state tribunals.” In Louisville & Nashville R. Co. v. Garrett, 231 U.S. 298, 305, 34 S.Ct. 48, 51, 58 L.Ed. 229, Justice Hughes said: “ * * * this court has often expressed its reluctance to adjudge a state statute to be in conflict with the Constitution of the state before that question has been considered by the state tribunals, — to which it properly belongs, — unless the case imperatively demands such a decision.” To the same effect, see Bergman v. Kearney, D.C.Nev., 241 F. 884; Kentucky-Tennessee Light & Power Co. v. City of Paris, Tenn., 6 Cir., 48 F.2d 795, 799; In re Boswell, 9 Cir., 96 F.2d 239.
We are confronted with á line of well reasoned decisions from the courts of last resort of a number of states having similar constitutional provisions which uphold similar legislative enactments. In the light of these decisions and the absence of a controlling decision by the Supreme Court of Oklahoma, we feel duty bound to resolve whatever doubt there is in favor of the constitutionality of the legislative enactment.
Complaint is made that the court refused to enter judgment against the two mortgagees for a return of the overpayment of $895. They had a lien on the land for the amount of their debt. They were entitled to receive all of the proceeds until their mortgage debt was paid and discharged. Had petitioner paid into court only the $5,000 ultimately found due, they [918]*918would still have received the same amount they did receive. They received no more than was due them. If they now are required to repay a part of what they received, their secured debt would remain unpaid to that extent. The excess went to Jarvis and not to them, and he alone is required to repay.
Finally, it is contended that the court should have allowed interest on the $895 from the day appellant paid the money into court, rather than from the date of judgment. The award by the commissioners was presumptively correct. Until the amount of the award was finally determined in the appeal, appellant’s claim for a refund on account of having paid the commissioners’ award into court was an unliquidated claim, incapable of ascertainment. It is well settled and needs no citation of authorities in support thereof that interest may not be allowed on an unliquidated claim. The trial court was wrong in concluding that appellant was liable for all the costs on the appeal. In all other respects the judgment of the trial court is approved.
Reversed and remanded, with directions to proceed in conformity with the views expressed herein.