Griffin Smith, C. J.
In relocating Highway No. 82 in Miller county, certain lands were taken December 23, 1940,
under judgments of the county court. In February of this year C. A. Beasley and W. E. Williams claimed damages.
The following month Beasley’s demand for $3,000 was disallowed, and in May, Williams’ $300 claim was likewise disposed of. Reasons assigned for the county court actions were that the road and general funds were in a depleted condition.
On appeal to circuit court in June Beasley was given judgment for $2,251.50. Judgment in favor of Williams was rendered for $186. The county clerk was directed to pay the obligations from funds appropriated for roads and bridges,£ £ and, if none, then out of general revenue. ’ ’
In circuit court the appeals were consolidated. Trial was without jury. Evidence was not preserved; hence, only the record is before us.
The county was represented by Dennis K. Williams, deputy prosecuting attorney. Although the court docket bears notation that there was consent to trial by the judge, it is contended a jury was not waived in statutory form.
The deputy prosecuting attorney testified he did not remember agreeing to waive trial by jury, then added, ££I’m sure I did not.’.’
We do hot sustain the exception.' Williams (the deputy) testified very frankly he knew the cases were set for trial the day heard. He also knew there would be no juries during the June term. Participation in the trials was, in the circumstances, as effective a waiver as though the intent had been expressed. Naperskie v. Trevillion, 202 Ark. 638, 151 S. W. 2d 922, is not in point. In that case there was no waiver; nor was there conduct from which consent to trial by the court without ,a jury could be implied.
Essential questions are: (1) Is Amendment No. 10 to the constitution in conflict with art. 2, § 22,
to such an extent that compensation for damages (enforcement of which is attempted after the property has been taken) becomes payable irrespective of Amendment No. 10?; and, (2) if Amendment No. 10 is not subservient to art. 2, § 22, do such claims (a) date from the county court’s judgment? (bj from the time of physical entry upon the land?, or (c) does the obligation to charge the transaction against revenues of a particular year arise when the claim is filed?
If it should be held that appellees ’ rights, in point of time, are concurrent with and restricted to rendition of the judgment, payment would be limited to unexpended and unimpaired revenues brought forward from 1940. Conversely, if—within the meaning of Amendment No. 10 —the obligation is not one for classification until the order “laying out the road” is consummated by entry upon the premises, failure of appellant to show by bill of exceptions when this occurred is an omission for which it is chargeable; hence, we must assume that the claims, if in other respects valid, are properly allowable against 1941 revenues.
In Justice v. Greene County, 191 Ark. 252, 85 S. W. 2d 728, it was said that because of the provisions of art. 2, § 22, of the constitution, there was no way for the county to escape “paying such judgment as appellant may recover if he files and prosecutes his claim.” It was also said in that case, in commenting upon the provisions of § 5249 of Crawford & Moses’ Digest
allowing payment to be made from general revenue if road funds were depleted: “Proof that these funds have been exhausted for the fiscal year of 1934 would and could not prevent [appellant] from ultimately collecting his damages out of these or other available funds.”
It was then said, that the appellant had until June 7, 1935, to file his claim. The opinion was handed down July 8,1935—a month and a day after appellant would have been barred as a consequence of failure to file his claim prior to June 7.
The statute construed in the Justice case provides that after making the order of condemnation and having it entered of record, road construction may begin.
Six and a half acres belonging to Justice were condemned. Validity of the judgment was challenged on the ground that county appropriations for the 1934 fiscal year exceeded revenues by more than seven thousand dollars. On appeal to circuit court Justice offered evidence that revenues receivable from all sources had been appropriated. The appeal was dismissed and this court affirmed.
The case turned upon the point that Justice, instead of enjoining the county judge (who was ex-officio road commissioner) from entering upon the lands, and instead of presenting his demand for damages, sought to have the judgment declared void upon a showing that funds were not available for payment of a claim he had not asserted. While the opinion says there is no way for the county to escape paying the judgment, it also says that payment shall be from available funds.
The holding in Arkansas State Highway Commission v. Hammock, Chancellor ,
is that where lands have been condemned for highway purposes and payment cannot be made because county funds are exhausted, the chancery court has jurisdiction to enjoin entry until the petitioner’s demands, when adjudicated, are satisfied. The law as thus expressed was approved in State Life Insurance Company of Indianapolis v. Arkansas State Highway Commission,
where it was said the rule laid down in Sloan v. Lawrence County
is that the state may [under Act 422 of 1911], without notice, condemn private property' for public roads, “ ... but a statute which undertakes to determine the question of compensation, without notice, is void.”
In holding (as we do) that payment for lands taken for highway purposes, or damaged incidentally, must be from revenues of the fiscal year in which the obligation accrues, the effect may, in certain instances, be to shorten the period of a year mentioned in § 6968 of Pope’s Digest as the time beyond which a claim is barred. Amendment •No. 10 would be meaningless if it should be said that lands (for example) taken in June, 1941, could be paid for from the revenues of 1942 merely because, by statute, the injured property-owner may file his claim within twelve months. The general assembly can neither enlarge nor restrict the amendment..
But, it may be urged, the limitation begins to run “. . . from the date of the order laying out the county road.” By reference to § 6968 it will be seen that the word “road” is separated from “provided” with a semicolon; the completion of the sentence being: “ . . . provided, further, that when such order is made and entered of record laying out or changing any road, the county court or the judge thereof shall have the right to enter upon the lands of such owner and proceed with the construction of such road.”
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Griffin Smith, C. J.
In relocating Highway No. 82 in Miller county, certain lands were taken December 23, 1940,
under judgments of the county court. In February of this year C. A. Beasley and W. E. Williams claimed damages.
The following month Beasley’s demand for $3,000 was disallowed, and in May, Williams’ $300 claim was likewise disposed of. Reasons assigned for the county court actions were that the road and general funds were in a depleted condition.
On appeal to circuit court in June Beasley was given judgment for $2,251.50. Judgment in favor of Williams was rendered for $186. The county clerk was directed to pay the obligations from funds appropriated for roads and bridges,£ £ and, if none, then out of general revenue. ’ ’
In circuit court the appeals were consolidated. Trial was without jury. Evidence was not preserved; hence, only the record is before us.
The county was represented by Dennis K. Williams, deputy prosecuting attorney. Although the court docket bears notation that there was consent to trial by the judge, it is contended a jury was not waived in statutory form.
The deputy prosecuting attorney testified he did not remember agreeing to waive trial by jury, then added, ££I’m sure I did not.’.’
We do hot sustain the exception.' Williams (the deputy) testified very frankly he knew the cases were set for trial the day heard. He also knew there would be no juries during the June term. Participation in the trials was, in the circumstances, as effective a waiver as though the intent had been expressed. Naperskie v. Trevillion, 202 Ark. 638, 151 S. W. 2d 922, is not in point. In that case there was no waiver; nor was there conduct from which consent to trial by the court without ,a jury could be implied.
Essential questions are: (1) Is Amendment No. 10 to the constitution in conflict with art. 2, § 22,
to such an extent that compensation for damages (enforcement of which is attempted after the property has been taken) becomes payable irrespective of Amendment No. 10?; and, (2) if Amendment No. 10 is not subservient to art. 2, § 22, do such claims (a) date from the county court’s judgment? (bj from the time of physical entry upon the land?, or (c) does the obligation to charge the transaction against revenues of a particular year arise when the claim is filed?
If it should be held that appellees ’ rights, in point of time, are concurrent with and restricted to rendition of the judgment, payment would be limited to unexpended and unimpaired revenues brought forward from 1940. Conversely, if—within the meaning of Amendment No. 10 —the obligation is not one for classification until the order “laying out the road” is consummated by entry upon the premises, failure of appellant to show by bill of exceptions when this occurred is an omission for which it is chargeable; hence, we must assume that the claims, if in other respects valid, are properly allowable against 1941 revenues.
In Justice v. Greene County, 191 Ark. 252, 85 S. W. 2d 728, it was said that because of the provisions of art. 2, § 22, of the constitution, there was no way for the county to escape “paying such judgment as appellant may recover if he files and prosecutes his claim.” It was also said in that case, in commenting upon the provisions of § 5249 of Crawford & Moses’ Digest
allowing payment to be made from general revenue if road funds were depleted: “Proof that these funds have been exhausted for the fiscal year of 1934 would and could not prevent [appellant] from ultimately collecting his damages out of these or other available funds.”
It was then said, that the appellant had until June 7, 1935, to file his claim. The opinion was handed down July 8,1935—a month and a day after appellant would have been barred as a consequence of failure to file his claim prior to June 7.
The statute construed in the Justice case provides that after making the order of condemnation and having it entered of record, road construction may begin.
Six and a half acres belonging to Justice were condemned. Validity of the judgment was challenged on the ground that county appropriations for the 1934 fiscal year exceeded revenues by more than seven thousand dollars. On appeal to circuit court Justice offered evidence that revenues receivable from all sources had been appropriated. The appeal was dismissed and this court affirmed.
The case turned upon the point that Justice, instead of enjoining the county judge (who was ex-officio road commissioner) from entering upon the lands, and instead of presenting his demand for damages, sought to have the judgment declared void upon a showing that funds were not available for payment of a claim he had not asserted. While the opinion says there is no way for the county to escape paying the judgment, it also says that payment shall be from available funds.
The holding in Arkansas State Highway Commission v. Hammock, Chancellor ,
is that where lands have been condemned for highway purposes and payment cannot be made because county funds are exhausted, the chancery court has jurisdiction to enjoin entry until the petitioner’s demands, when adjudicated, are satisfied. The law as thus expressed was approved in State Life Insurance Company of Indianapolis v. Arkansas State Highway Commission,
where it was said the rule laid down in Sloan v. Lawrence County
is that the state may [under Act 422 of 1911], without notice, condemn private property' for public roads, “ ... but a statute which undertakes to determine the question of compensation, without notice, is void.”
In holding (as we do) that payment for lands taken for highway purposes, or damaged incidentally, must be from revenues of the fiscal year in which the obligation accrues, the effect may, in certain instances, be to shorten the period of a year mentioned in § 6968 of Pope’s Digest as the time beyond which a claim is barred. Amendment •No. 10 would be meaningless if it should be said that lands (for example) taken in June, 1941, could be paid for from the revenues of 1942 merely because, by statute, the injured property-owner may file his claim within twelve months. The general assembly can neither enlarge nor restrict the amendment..
But, it may be urged, the limitation begins to run “. . . from the date of the order laying out the county road.” By reference to § 6968 it will be seen that the word “road” is separated from “provided” with a semicolon; the completion of the sentence being: “ . . . provided, further, that when such order is made and entered of record laying out or changing any road, the county court or the judge thereof shall have the right to enter upon the lands of such owner and proceed with the construction of such road.”
It is our view that the act qf taking is not complete when the judgment of condemnation is rendered. Since such judgment may be without notice, the lawmaking body must have had in mind an order of condemnation followed by entry upon the land. Such entry, being physical and visible, affords the proprietor an opportunity to exact payment or to require a guaranteeing deposit. If there is neither payment nor deposit,
resort may he had to injunction; hut should the proprietor stand by and permit the land to be occupied and the improvement to proceed until substantial road work has been done, he is then relegated to the county’s credit. The demand is against revenues for the year possession was taken, and all of the restrictions of Amendment No. 10 attach. The claim is one to be paid on a parity with others recognized by law as contractual; and it is inferior to that class arising from the performance of indispensable services— services made mandatory by the constitution or by statute, in respect of which .the county has no discretion as to payment when an appropriation has been made.
The construction of § 6968 here given preserves harmony between art. 2, § 22, of the constitution, and Amendment No. 10. No one, except through failure to assert his rights -before substantial work has been done on the condemned lands, can be deprived of the property without just compensation, while on the other hand payment will not conflict with the amendment.
The judgment is reversed. Tire cause is remanded with directions that the circuit court remand to the county court, where the claim must be classified as herein set out.