Jacksonville, Tampa & Key West Railway Co. v. Adams

29 Fla. 260

Opinion

Raney, C. J. :

The condemnation proceedings in which the appeal now before us was entered are set forth in the case of the J., T. & K. W. Ry. Co. vs. Adams, 28 Fla., 631, 10 South. Rep., 465. As there shown, objections were filed to the report of the jury, and on August 10th, 1891, the Circuit Judge made an order sustaining the exceptions and protests and refusing a confirmation of the report, and also refusing “to order further proceedings in this matter, on the ground of the unconstitutionality of the law authorizing the same,” and dismissed the case.

The contention of the appellees is in support of his motion to dismiss the appeal, and is, that there is no appeal to this court from the above order.

Their counsel argue that there is no authority for the entry of the order appealed from, in the chancery order book as the judgment or decree of the court; that it is only in case the verdict of the jury is confirmed that an entry is authorized. It appears from the reading of the statute, as will be found in the preceding statement, that if the protesting party show good cause why the report should not be. confirmed, the judge shall refuse to confirm it, and shall order and cause to be taken such further proceedings in the matter, not inconsistent with the act, as in his judgment right and justice may demand. If it can for a moment be im agined that it was the purpose of the Legislature that an order refusing to confirm the report, and directing further proceedings, should not be entered on the record book of the court, then such entry is not essential to the validity or fullest effect of such order. We, however, do not find any ground for concluding that such was the legislative purpose, in enacting that a confirming order shall on payment to the owner of the land, or to the clerk subject to the order of such owner, of the amount awarded, be entered of record on the chancery order book of the court, and shall thereupon become a judgment and decree of said court, with the consequent rights in the railroad or canal company indicated by the statutb. Although this feature of th e statute does indicate a positive intent that the order of confirmation shall not be recorded or become effectual until payment has been made in the manner indicated, the reason of the provision is, that the judicial condemnation of the land shall not be effectual or operative until the payment has been made. The end thus sought and attained is not, nor is the reason dictating it any ground for inferring that the Legislature intended that an order in the cause from -which no similar results could flow, shall not be recorded, but (if it be that counsel mean to concede that the statute authorizes -anything but a verbal refusal of confirmation.) should be left in the much more precarious and altogether unusual condition of being merely filed. In our judgment the only intention that can be imputed to the Legislature at all reasonably, is that orders of this character shall be promptly recorded in the chancery order book. Clerks who do not thus record them will be essentially remiss. These observations are equally applicable to-the order for summoning the jury, referred to hereafter.

It is further argued that the function given by this-act to hear and determine is vested in the judge, and not in the court. We do not think so. The 29th section of the sixteenth article of the Constitution provides that compensation in these condemnation cases- “ shall be ascertained by a jury of twelve men in a. court of competent jurisdiction, as shall be prescribed by law.” The first section of the fifth, or judicial, article vests the judicial power of the State in the Supreme, Circuit, Criminal and County Courts, and in County Judges and Justices of the Peace, and the thirty-fourth section authorizes the Legislature to establish in incorporated towns and cities courts for the punishment of offenses against municipal ordinances; and the thirty-fifth section ordains ‘ ‘ that no courts other than those herein specified shall be established in this State.” The eleventh section of the same article gives the Circuit Courts “exclusiveoriginal jurisdiction in all cases in equity, also in all cases at law not cognizable by inferior courts, and all cases involving the legality of any tax, assessment or toll; of the action' of ejectment and of all actions involving the titles or boundaries of real estate; * * ' and of such matters as the Legislature may provide.” It also gives the' Circuit- Court certain criminal and certain appellate-jurisdiction not necessary to mention. No jurisdiction is given Circuit Judges, as such, except concurrent power with the Circuit Courts ‘ ‘ to issue writs of mandamus, injunction, quo warranto, certiorari, prohibition and habeas corpus, and all writs proper and necessary to the complete exercise of their jurisdiction,”’ and certain powers as to Court Commissioners, and the; Legislature may give Circuit Courts and Judges extra1, territorial jurisdiction in chancery cases. The meaning of the clause, supra, from the twenty-ninth section; of the sixteenth article is, that the court mentioned in it is one of the courts mentioned in the first section of’ the fifth article. The Circuit Judges, considered as; distinct from the Circuit Courts, are not one of these-courts, and, in our judgment, the power contemplated! by Section 29 of Article XVI cannot be devolved upon-them as merely such judges; in other words, the Legislature cannot create for these condemnation proceedings a new tribunal of which Circuit Judges, as distinct from the Circuit Court, is the judicial functionary;; but in so far as the exercise by him of judicial functions-in connection with these matters, the power must be; given to the Circuit Court. A careful view of the entire statute satisfies us that it was not the intention of the Legislature to create any new tribunal, or to devolve the powers on the judge, as judge, but upon the; Circuit Court as created by the Constitution- The; amendatory statute referred to in the statement, provides that the petition shall be filed “in the clerk’s office of the Circuit Court of the county in which the land lies,” and that on the presentation of such petition “to the judge of such Circuit Court,” he shall make an order for the sheriff to summon a jury to fix the amount of compensation to be paid the land-owner, their report of which, as shown by the statement, is to be filed “in the office of the Circuit Court of such county,” and the protest or exception thereto is to be filed “with the clerk of said court,” and upon the payment of'the amount of compensation fixed by the jury, the “ order confirming the verdict of said jury shall be entered of record on the chancery order book of said court, and it shall thereupon become a judgment and decree of said court. ” It is also provided by a subsequent section that at any time after such entry of this order, the railroad or canal company, on due proof of the same, ‘ ‘ may obtain a writ of assistance from said court, under the order of said judge,” to put such company in possession of the land condemned. The proceeding is one commenced in the court by filing the petition in the clerk’s office, where a bill in chancery or a praecipe for the institution of a suit in equity, or an action at law, in that court, is filed ; and there also the report, and other proceedings are filed and the judgment is recorded in its order book, and the writ which issues is the writ of the court. The fact that the statute directs that certain orders shall be made by the judge, is nothing more than a specification of the clnties of the judge as a part of the -court, and no more separates him or the proceedings from the court than the common law duties of such judge would have this effect in his performance of the same as a part of the court when exercising common law powers. It could as well be said that the clerk performed his duties under this act not as a function.ary and part of the court, but distinct therefrom.

It is not only a proceeding in the Circuit Court, but the order of dismissal is one from which an appeal lies to this court, although the act says nothing as to appeals. The Constitution (Section 5, Article Y) gives the court “appellate jurisdiction of all cases at law and in equity originating in the Circuit Courts,” and our statutes provide the mode of taking appeals from .any final judgment at law and from interlocutory and final decrees in equity. This proceeding is on the equity side of the Court; though statutory in its creation, it has been placed there by the Legislature ; not, it is true, as evidenced by an express declaration to this effect, yet by evidences of an intention to do so, which are unmistakable in both their nature and effect. It is only the chancery side of the court, or the court as a court of chancery, that has a chancery order book, .and when the order confirming the verdict of the jury is recorded in the “chancery order book of said court,” and thereupon becomes “ a judgment and decree of said court,” it is meant that it becomes a judgment and degree of the Circuit Court as a court of chancery, and not as exercising law powers. It, of course, is not on both sides of the court-, and if the law-makers had not intended that the order of confirmation should be a judgment or decree in chancery it would not have made the designated provisions. The writ authorized to be issued to enforce the judgment is also a chancery writ. In the absence of insuperable evidence to the contrary, consistency of purpose will always be accorded the Legislature, and must in this case be conceded, at least to the extent that it intended the petition and other papers to be filed in, and the other proceedings to be, on the same side of the court, and not in different jurisdictions. The devolution of' this power or function on a court of chancery is not anomalous. The case of N. O. & T. R. R. Co. vs. Ryan, 64 Miss., 399, cited by counsel for appellees, shows that it is done in Mississippi; and moreover the-writ ad quod damnum,- the prototype of these proceedings, issued, originally, out of, and was returnable-into, chancery. Fitz-Herbert’s Natura Brevium, 509, m. p. 211; Title, Ad Quod Damnum, inBouvier’s, and. in Black’s Law Dictionaries.

It is said in Lewis on Eminent Domain, sec. 550, that-where proceedings- are commenced in, or come by appeal or certiorari before, a court from whose decision an appeal lies to the Supreme Court of the State, then whether an appeal will lie in the class of cases under consideration will depend upon the Constitution and statutes of the State; and that, as a rule, such appeals-are entertained in the absence of words in the law which express or clearly imply a contrary intent. In North Mo. R. Co. vs. Lakeland, 25 Mo., 515, involv ing a proceeding of this kind, instituted in the Circuit Court under the charter of the named appellant railroad company, it was held that it was a proceeding in which the court acted in its judicial capacity, and that an appeal lay to the Supreme Court from a final judgment of the Circuit Court therein. It is said in the opinion : “That there may be cases where special and limited authority is delegated to a court, not because it is a court, but from some idea of convenience or propriety, and the decision of the court made final, is not questioned. It may, however, admit of a doubt whether the Legislature could so devise a proceeding designed to effect the transfer of private property to the public, as to deprive the courts of the power of determining whether the constitutional restriction on this subject has been honestly complied with. However this may be, the question here is, does the court act in its judicial capacity, and can it exercise, in its control over the subject confided to it by the charter, the general powers and jurisdiction of a court, or 'is the court, quoad hoc, a mere commissioner, a special tribunal selected for a special purpose, and functus officio when the special powers confided to it by statute have been exhausted ?’ ’ Reviewing the act, whose features are somewhat similar to ours, and answering this question with the conclusion that the court acted in its judicial capacity and notas a mere commissioner, it is then said: ‘ ‘ Although the act is carelessly drawn, and framed in a mode to justify doubts as to its true intent, we will not presume, notwithstanding the absence of any special provisions for an appeal, that it was the intention of the Legislature to deprive the parties of this right, especially as the provisions of the general law seem large enough, without any strained construction, to embrace the case. In Lawrence & U. M. C. Co. vs. Smith, 3 Ind., 255, the decision was that a provision in the company’s charter that the judgment of the Circuit Court, in a proceeding of this kind, should be final, was not sufficiently explicit to authorize the conclusion that a writ of error from the Supreme Court would not lie. It was contended in St. Louis & S. R. Co. vs. Lux, 63 Ill., 523, that as the statute made the judgment of the Circuit Court final and conclusive, an appeal did not lie, but the Supreme Court held that the right to have the decision of the former court reviewed was a constitutional right secured by the organic law of the State. In this case it is said of Coon vs. Mason County, 22 Ill., 666, which is seemingly in conflict, that the constitutional right to prosecute a writ óf error was not considered. See also Morris vs. City of Chicago, 11 Ill., 650 ; North Mo. R. Co. vs. Reynal, 25 Mo., 534; Lanesborough vs. County Commissioners, 22 Pick., 278 ; Sacramento, P. & N. R. R. Co. vs. Harlan, 24 Cal., 334; Baltimore & Havre-de-Grace T. Co. vs. Northern Central Ry. Co., 15 Md., 193.

Our conclusion is that the Circuit Court acts, under the statute before us, in the exercise of' its judicial powers as a court, and that an appeal lies to this court from the order of dismissal. It is not a case in which the judge acts as a commissioner, or as a special tribu nal created by statute with, limited powers and a discretion from which no appeal has been given. Heirs of Bryant vs. Stearns, 16 Ala., 302; Wilmington & S. R. R. Co. vs. Condon, 8 Gill & J., 443; Hawkins vs. County of Randolph, 1 Murphy, 118.

The motion to dismiss is therefore denied.