ON MOTION TO DISMISS.
In the reconstruction of the primary state highway known as United States highway No. 11 between Meridian and Enterprise, it became necessary to take a strip of land owned by appellees, consisting of approximately nine-tenths of an acre. The commission and the owners could not agree on the compensation therefor to be paid to the owners, and the commission instituted condemnation proceedings in the county court. The jury made an award of five thousand dollars, which the commission
deemed to be excessive to the extent of double the fair price of the land, and the commission appealed to the circuit court. The contract had been let, and, because of delays in the prompt determination of the appeal in the circuit court, through no fault of the commission, the time had arrived when the public contractors were entitled under their contract to enter and proceed with the work on said land. The commission thereupon applied to the chancery court for an injunction against appellees, the owners, to restrain them from interfering with the entry into possession by the commission. The injunction was issued, and the commission entered into possession. The circuit court thereafter affirmed the judgment of the county court, and the commission appealed to this court. Appellees have moved to dismiss the appeal because the commission had taken possession of the land without first paying the amount of the award.
The motion to dismiss is upon the familiar and well-established general procedural principle that a party to a cause cannot accept the benefits of that portion of an indivisible judgment therein which is favorable to him, and at the same time or thereafter prosecute an appeal from such portions of the judgment as militate against him; that an acceptance of a substantial benefit under an indivisible judgment operates as a waiver of the right of appeal therefrom. The argument is that the state highway commission has no right to enter upon and to appropriate to the public use any land of a private owner until three steps have been taken and completed by the commission, namely: First, the institution of a proceeding in eminent domain; second, the prosecution of such proceeding to a judgment of award; and, third, the payment in cash of the amount adjudged as compensation to the owner in the said eminent domain proceeding.
As to all parties having the right to resort to proceedings to take or condemn private property for public use, other than when the state or one of its political sub-divisions
is the condemnor, the statement of the general principle contained in the first sentence of the foregoing paragraph is undoubtedly correct, and we must concede the correctness of the necessity of the taking of the first two steps above mentioned when the state highway commission seeks the right to appropriate and to enter upon the land of a private owner without the owner's consent; that is to say, in such a case the commission undoubtedly has no such right of entry into possession until it has first instituted condemnation proceedings, and has prosecuted same to an original judgment of award, for the reason that up to the time of such original trial and judgment, but not thereafter, the owner has the privilege to challenge the right to take the property at all at any price, as is provided under section 1510, Code 1930. It is undisputed that in the case here before us the commission had taken the two first and necessary steps before it entered into possession, and it is undisputed that the owner has not challenged the taking under section 1510.
Therefore the first question for decision is whether it is necessary that the commission shall have taken the third step, namely, the actual payment in cash of the award before going into possession, and that question we shall answer in the negative, under the authority of Hinds County v. Johnson, 133 Miss. 591, and particularly that part of the opinion in that case beginning at the top of page 607 and continuing to the middle of page 608, 98 So. 95, 97.
It is argued however, that, under section 4998, Code 1930, the only lawful method by which the state highway commission may condemn and thereafter enter into possession of the lands of a private owner is under the general Code chapter on eminent domain, and that section 1494 of that chapter is sufficiently explicit that no condemnor has the right to enter upon and take possession of the condemned property unless and until the amount
of the award has been first paid or tendered. This language is no stronger or more explicit, indeed, is not so strong or explicit, as compared with that contained in section 17, Constitution 1890, which, looking alone to its letter, plainly says that "private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law." That language makes no exception and according to the letter thereof includes every condemnor, whatever the character of the condemnor, and yet the court has held in the above-cited language in the Johnson case that, as to the state or its political subdivisions, actual payment in cash first made is not essential; and it requires no argument to demonstrate that a constitutional provision is of equal or even greater force as compared with a statute. And, since the constitutional provision has been and is now construed so as not to require actual cash payment in advance of taking possession in the case of the state or one of its political subdivisions, then a like statutory provision dealing with the identical subject-matter should receive a similar construction. The Johnson case plainly laid down the reason for the requirement in the constitutional section, which reason lies within all the statutes on the subject, that "the requirement of compensation in advance was to insure payment to the owner. It was in the nature of a guaranty against insolvency of the taker of his land. It was to relieve him of the uncertainties and exigencies of an ordinary unpaid claim, subject to be reduced to judgment, resulting in a nulla bona execution. These reasons can have no application or force to the taking of private property for public use by the state or any of its political subdivisions." And the court thereupon simply followed a maxim of legal construction as old as any of the books of the law that when, and to the extent that, the reasons of or for a rule disappear as regards a particular legal situation,
the rule to that extent also disappears as applicable to that situation. Cessante ratione legis, cessat ipsa lex.
The state highway commission, under section 170 of the Constitution of 1890, as amended in 1924, is a department or division of the state, and within its constitutional and statutory field of action is there the state itself. The commission is supplied with the funds actually on hand to cover the cost of every road project which, under its administration, has passed to the stage where actual work of construction or reconstruction is to be undertaken. Not only is the full faith and credit of the state pledged to the payment for the lands taken for rights of way for state highways, but the commission actually has the money on hand for the payment of all such rights of way immediately when and whenever the amount therefor is finally fixed or agreed upon. Consequently, when we have held and now reaffirm that the state is not required to first pay in actual cash for property taken by it for public purposes, the holding embraces the state highway commission in respect to lands taken for state highway rights of way.
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ON MOTION TO DISMISS.
In the reconstruction of the primary state highway known as United States highway No. 11 between Meridian and Enterprise, it became necessary to take a strip of land owned by appellees, consisting of approximately nine-tenths of an acre. The commission and the owners could not agree on the compensation therefor to be paid to the owners, and the commission instituted condemnation proceedings in the county court. The jury made an award of five thousand dollars, which the commission
deemed to be excessive to the extent of double the fair price of the land, and the commission appealed to the circuit court. The contract had been let, and, because of delays in the prompt determination of the appeal in the circuit court, through no fault of the commission, the time had arrived when the public contractors were entitled under their contract to enter and proceed with the work on said land. The commission thereupon applied to the chancery court for an injunction against appellees, the owners, to restrain them from interfering with the entry into possession by the commission. The injunction was issued, and the commission entered into possession. The circuit court thereafter affirmed the judgment of the county court, and the commission appealed to this court. Appellees have moved to dismiss the appeal because the commission had taken possession of the land without first paying the amount of the award.
The motion to dismiss is upon the familiar and well-established general procedural principle that a party to a cause cannot accept the benefits of that portion of an indivisible judgment therein which is favorable to him, and at the same time or thereafter prosecute an appeal from such portions of the judgment as militate against him; that an acceptance of a substantial benefit under an indivisible judgment operates as a waiver of the right of appeal therefrom. The argument is that the state highway commission has no right to enter upon and to appropriate to the public use any land of a private owner until three steps have been taken and completed by the commission, namely: First, the institution of a proceeding in eminent domain; second, the prosecution of such proceeding to a judgment of award; and, third, the payment in cash of the amount adjudged as compensation to the owner in the said eminent domain proceeding.
As to all parties having the right to resort to proceedings to take or condemn private property for public use, other than when the state or one of its political sub-divisions
is the condemnor, the statement of the general principle contained in the first sentence of the foregoing paragraph is undoubtedly correct, and we must concede the correctness of the necessity of the taking of the first two steps above mentioned when the state highway commission seeks the right to appropriate and to enter upon the land of a private owner without the owner's consent; that is to say, in such a case the commission undoubtedly has no such right of entry into possession until it has first instituted condemnation proceedings, and has prosecuted same to an original judgment of award, for the reason that up to the time of such original trial and judgment, but not thereafter, the owner has the privilege to challenge the right to take the property at all at any price, as is provided under section 1510, Code 1930. It is undisputed that in the case here before us the commission had taken the two first and necessary steps before it entered into possession, and it is undisputed that the owner has not challenged the taking under section 1510.
Therefore the first question for decision is whether it is necessary that the commission shall have taken the third step, namely, the actual payment in cash of the award before going into possession, and that question we shall answer in the negative, under the authority of Hinds County v. Johnson, 133 Miss. 591, and particularly that part of the opinion in that case beginning at the top of page 607 and continuing to the middle of page 608, 98 So. 95, 97.
It is argued however, that, under section 4998, Code 1930, the only lawful method by which the state highway commission may condemn and thereafter enter into possession of the lands of a private owner is under the general Code chapter on eminent domain, and that section 1494 of that chapter is sufficiently explicit that no condemnor has the right to enter upon and take possession of the condemned property unless and until the amount
of the award has been first paid or tendered. This language is no stronger or more explicit, indeed, is not so strong or explicit, as compared with that contained in section 17, Constitution 1890, which, looking alone to its letter, plainly says that "private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law." That language makes no exception and according to the letter thereof includes every condemnor, whatever the character of the condemnor, and yet the court has held in the above-cited language in the Johnson case that, as to the state or its political subdivisions, actual payment in cash first made is not essential; and it requires no argument to demonstrate that a constitutional provision is of equal or even greater force as compared with a statute. And, since the constitutional provision has been and is now construed so as not to require actual cash payment in advance of taking possession in the case of the state or one of its political subdivisions, then a like statutory provision dealing with the identical subject-matter should receive a similar construction. The Johnson case plainly laid down the reason for the requirement in the constitutional section, which reason lies within all the statutes on the subject, that "the requirement of compensation in advance was to insure payment to the owner. It was in the nature of a guaranty against insolvency of the taker of his land. It was to relieve him of the uncertainties and exigencies of an ordinary unpaid claim, subject to be reduced to judgment, resulting in a nulla bona execution. These reasons can have no application or force to the taking of private property for public use by the state or any of its political subdivisions." And the court thereupon simply followed a maxim of legal construction as old as any of the books of the law that when, and to the extent that, the reasons of or for a rule disappear as regards a particular legal situation,
the rule to that extent also disappears as applicable to that situation. Cessante ratione legis, cessat ipsa lex.
The state highway commission, under section 170 of the Constitution of 1890, as amended in 1924, is a department or division of the state, and within its constitutional and statutory field of action is there the state itself. The commission is supplied with the funds actually on hand to cover the cost of every road project which, under its administration, has passed to the stage where actual work of construction or reconstruction is to be undertaken. Not only is the full faith and credit of the state pledged to the payment for the lands taken for rights of way for state highways, but the commission actually has the money on hand for the payment of all such rights of way immediately when and whenever the amount therefor is finally fixed or agreed upon. Consequently, when we have held and now reaffirm that the state is not required to first pay in actual cash for property taken by it for public purposes, the holding embraces the state highway commission in respect to lands taken for state highway rights of way. The inevitable further conclusion must follow that, when the commission has instituted the appropriate legal proceedings and the proceeding has validly advanced to the stage where judgment of award has been rendered as here and the owner has in the meantime instituted no inquiry under section 1510, Code 1930, then the commission has the lawful right to take possession of the property without first actually paying to the owner the money adjudged or any other amount of money.
And having advanced the inquiry thus far and pronounced the rules of the substantive law which lie at the foundation of the inquiry, we are now in a position to examine the final question whether, when the commission has taken possession after the award but without first paying the amount of said award, it has lost the right of appeal from that award, so far as concerns
the amount thereof. In this ultimate inquiry we are dealing with principles which appertain to the procedural or adjective side of the law. The procedural or adjective law is designed to serve the substantive law, and, when a procedural principle comes into such a conflict with a substantive principle as that, in the particular situation, both cannot stand, and one or the other must give way, then the substantive principle must survive, and the procedural principle must be subordinated to it, or, more properly, it is to be said that another and a more suitable procedural principle must be applied.
If we should say that the commission after the award must not take possession of the land except upon penalty of waiving its right of appeal from the amount of the award, we would reverse the stated rule, and would place a particular procedural rule in a position of dominance over the substantive rule. We have said that, when the proceedings have advanced to the stage indicated, the commission has the right to take possession without first paying the cash for that right. The proceeding when the judgment of award has been made has then progressed to the stage where it has been adjudicated that the taking is for a public purpose and as a public necessity, and, the condemnor being the only appellant, the right of the condemnor to the land has become fixed and established in any event. In such a situation and as to a condemnor who is not required under the substantive law to actually pay the cash before taking possession, the following procedural rule, equally as well established as the one first mentioned, must be brought into operation, namely, the rule that, where the right accepted by the appellant is one to which appellant is undeniably entitled, whatever the result of the appeal, the appellant does not waive the right of appeal by the acceptance of the then incontestable right. 3 C.J., p. 680.
It has been suggested and argued that the cited and
quoted portions of the opinion in the Johnson case were not necessary to decision therein, and are contrary to sound constitutional principles, and should now be overruled. The point was fully presented and argued in the Johnson case, and it was made one of the grounds, indeed the principal ground, upon which the decision therein was rested, and it is and was sustained by those among the most persuasive of the authorities which could be presented on constitutional law and as to the particular point. And a more inopportune occasion for the overruling of that opinion could hardly have arisen than just now. Even as this present opinion is being prepared, the Legislature and executive departments of our state government are advancing, with a unanimity of purpose heretofore almost unknown, to the launching of the most ambitious road-building program ever undertaken in this state. Millions are being set aside for the purpose, and it is being required that the greatest possible expedition shall be observed in the furtherance of the program. And while the legislative and executive branches are thus advancing, we of the judicial department are requested by a litigant to turn our faces in the backward direction and to overrule a decision by which it is possible for the highway commission to obtain their rights of way with reasonable promptness and at fair sums, and instead thereof to remit them to long delays in legal proceedings or else to submit to the excessive demands which many property owners make and which would have to be met in order to avoid the delays which would seriously affect the expeditious performance of this great statewide work.
It is said, as it is always urged in these cases, that it is against all just notions of constitutional guaranties, that any man shall be turned out of his property without his compensation therefor being first paid to him. We are declaring the law as we find it; we do not make the law. And if there be any injustice in the declaration in
the Johnson case, or as we now reaffirm that case, the Legislature which, even as we write, is now considering this whole highway question, may enact a suitable statute requiring the highway commission or any other department or subdivision of the state to deposit in cash, with its petition to condemn, such a sum as the commission or department or subdivision may deem fair for the property, and which the owner may at once take without prejudice to the rights of either the condemnor or the owner, whether as to the amount later to be fixed by the jury or as to any rights of appeal by either party
Cook and Anderson, JJ., concur.
Motion to dismiss appeal overruled.