On a former day we affirmed the judgment of the trial court, which, as seen from the main opinion, was based upon the self-executing provisions of Section 17, Const. 1890. In entering the judgment of this court, the clerk *Page 596 added (1) interest at the usual legal rate on the amount of the judgment from the date of the original rendition thereof, and (2) the five percent damages on the amount of the judgment usually allowed when money judgments are affirmed, and (3) taxed the commission with the costs of the appeal. The Highway Commission has requested, by motion to correct, that the three additional items be stricken from the judgment as entered by the clerk of this court; and in support of the motion the commission has cited an ample line of cases to the effect that the state, and its agencies, are not liable for cost, interest and the like, unless the statutes of the state expressly so allow or provide.
That the general rule is as stated by the commission we do not call into question. The inquiry is whether in the precise case, or class of cases which we have now before us, the stated general rule applies.
As an approach to the questions raised by the motion, we may first determine whether the Highway Commission is liable for costs, when it avails of the statutory remedy in Eminent Domain. By Section 4998, Code 1930, the Highway Commission is authorized to condemn any land needed for its purposes and the section expressly provides that "the proceedings to acquire such lands by condemnation shall be in conformity with the statutes on the subject of `Eminent Domain,'" and that "the amount of such compensation and damages, if any, awarded to the owner in such proceedings shall be paid out of the state highway `construction fund.'" And it is to be noted that Sections 1493 and 1498 of the Code chapter on Eminent Domain provide that "the costs in all cases under this chapter shall be paid by the applicant."
In Deneen et al. v. Unverzagt et al., 225 Ill. 378, 80 N.E. 321, 8 Ann. Cas. 396, the building commission, an agency of the state, had been authorized to condemn land under the eminent domain statutes of the state, and the court said that inasmuch as the statute, authorizing the agency to resort to eminent domain, was without any *Page 597 qualification or restriction, it gave the same rights, and subjected the state to the same liabilities, as private parties seeking to condemn for public use, and that the state was, therefore, liable for costs. We might conclude the discussion by announcing our concurrence in what was held in that case, and in the reasons therefor as stated therein.
But, as we did in respect to the merits, we place our decision upon the ample foundation of the self-executing provisions of Section 17, Const. 1890, which ordains 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." And whatever diversity of opinion there may be in some jurisdictions, we align ourselves with those cases which hold, in support of the text 2 Lewis Eminent Domain (3 Ed.), Sec. 812, p. 1434, that as property cannot be taken or damaged without due compensation and as the amount of that compensation or for its damage must be ascertained, the duty of ascertaining the amount is necessarily cast upon the party seeking to condemn or who has damaged the property for public use, and that he or it should pay all the expenses which attach to the process; that there is not the full measure of due compensation required by the constitutional mandate if the owner is subjected to a diminution thereof by liability as to any part of the cost incurred in its ascertainment.
The property here in question was damaged without due compensation first being made to the owner, and the ascertained amount of the damage has not yet been paid to her. That the Highway Commission is liable for interest from the date of the ascertainment follows with equal reason as that which leads to the allowance against it of the costs. This question was recently determined in the case entitled In re Petition of State Highway Commissioner, 279 Mich. 285, 271 N.W. 760, in which many of the authorities are reviewed including cases from the Federal *Page 598 Supreme Court, all holding that interest, even when a governmental agency is the condemnor, must be included in order to constitute compliance with the constitutional mandate of due compensation. And an illuminating discussion of the questions of cost and interest under the constitutional requirement of due or just compensation for property taken or damaged for public use, is found in Stolze v. Milwaukee, etc., R. Co., 113 Wis. 44, 88 N.W. 919, 90 Am. St. Rep. 833.
As to the allowance of the five percent upon the amount of the affirmed judgment, which the statute, Sec. 3387, Code 1930, denominates as damages, that question is more difficult of solution. In Tigner v. McGehee, 60 Miss. 242, it was said that this allowance is intended to penalize appellant for appealing from a proper judgment or decree. In Meek v. Alexander, 137 Miss. 117, 102 So. 69, 70, it was said that it "is in the nature of a penalty, or a condition of appeal, and affords also the basis of remuneration of the expense to the successful party"; and in Canal Bank Trust Co. v. Brewer, 147 Miss. 885, 113 So. 552, 114 So. 127, the court held that the award is in the nature of compensation to the successful appellee for expenses incurred. In Davis v. Wilkins, 127 Miss. 490, 90 So. 180, it is said that the five percent damages constitute a condition of taking an appeal; that it is optional with the government whether it will appeal when a litigant, and that when the government appeals it stands therein on the same terms as any other litigant.
In this difficulty we have decided to recur to the holding illustrated in Deneen v. Unverzagt, supra, that when an agency of the state is authorized by statute, without any qualification or restriction, to condemn under the general statutes relating to Eminent Domain, the agency has thereby the same rights and is subject to the same liabilities as private parties seeking to condemn for public use, and this would carry the five percent on affirmance, as well as costs and interest.
Having determined that the Highway Commission is subject to judgment for the three items above discussed when it avails of the statutory remedy in Eminent Domain, *Page 599 is it any the less liable when it has damaged property for public use without first proceeding in the lawful way to condemn? To that question the same answer must be returned as that which was given in the main opinion herein on the merits. No advantage can be gained by the commission when it takes or damages without condemnation, as compared with its liability had it first proceeded as pointed out and required by the statutes.
Motion overruled.