This is a proceeding by the appellant for condemnation of the land of the respondent. The company requiring the right of way over the land of the respondent, procured the necessary order under the statute for a jury to assess the compensation. The jury assessed the value and fixed the compensation at thirty-five hundred dollars ($3,500.00). From this assessment the railroad company appealed to the Circuit Court and demanded a trial in open court to reassess the compensation. The Circuit Judge held that he was not "satisfied of the *Page 81 reasonable sufficiency of the grounds," but granted an order for an issue to be tried in open court on the ground that the company was entitled to have the issue tried in open court, under the Constitution. From this judgment the owner appealed on several exceptions and states his questions as follows:
1. "Does the statute regulating the condemnation of rights of way (section 3292), provide such a method of assessment of damages for the appropriation of a right of way by a corporation, as will fully meet the requirements of section 20, article IX, of the Constitution, which provides that such `compensation shall be ascertained by a jury of twelve men, in a court of record, as shall be prescribed by law?' In other words, in the language of Mr. Chief Justice McIver in Railroad Co. v. Railroad Co., 57 S.C. 324,35 S.E., 553, does the statute `secure to either party every right guaranteed to him by the Constitution?'
2. "Is section 3296, in so far as it makes the right of appeal from the verdict of a condemnation jury dependent upon the determination of `the reasonable sufficiency of the grounds' of appeal by the presiding judge as a preliminary matter, contrary to the provisions of section 20, article IX, of the Constitution?
3. "Is the respondent estopped from asserting the right, if it exists, to submit the question of compensation to a jury in the Court of Common Pleas, having invoked, at every stage of the proceedings, the condemnation statute?
4. "If such right exists, independently of the statute of condemnation, should it be asserted by a proceeding under the statute, or in the Court of Common Pleas ab initio?"
There are two provisions of the Constitution that must be considered.
Article I, section 17, provides: * * * "Private property shall not be taken for private use without the consent of the owner. Nor for public use without just compensation being first made therefor." *Page 82
Article IX, section 20: "No right of way shall be appropriated to the use of any corporation until full compensation therefor shall be first made to the owner or secured by a deposit of money, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertain by a jury of twelve men in a court of record as shall be prescribed by law."
It will be seen that the first provision is in the "Declaration of Rights," where the most sacred and inalienable rights of the private citizen are secured to him. The second provision is made under the head "Corporations" and is in restraint of corporate power.
If the verdict of the jury "not in open court" does not ascertain the compensation, then the deposit of the amount of their verdict can confer upon the railroad no right to proceed with the taking of the property of the "owner" until the compensation is first paid or deposited. These provisions are mandatory. If this method of ascertaining the compensation provided by statute does not comply with the constitutional provision, then it is unconstitutional and all the court can do is to so declare and dismiss the proceedings. This question this Court need not decide in this case, because the appellant by taking these proceedings has waived its constitutional right to object. It has been held in this State that the constitutional right of the "owner" to prevent the appropriation of the right of way "until full compensation therefor shall be first made to him or secured by a deposit of money," may be waived by the owner.
See Verdier v. Railroad Co., 15 S.C. 483.
The attack is necessarily on the assessment "not in open court." Before the appellant can claim, as a matter of right, a reassessment, it must be held that the compensation has not been ascertained, paid or deposited. If the compensation has not been ascertained in a court of record, by a jury of twelve men, it is because the verdict is a nullity. There is *Page 83 nothing in the case from which consent to entry before compensation can be presumed.
Railroad Co. v. Railroad Co., 57 S.C. 322, 35 S.E., 553: "The respondent, by participating in the proceedings prescribed by the statute, without protest or objection up to the time of the hearing before this Court, which is only invested with jurisdiction to review the action of the Circuit Court and by actually basing its application for the order appealed from upon the provisions of the statute, which it now claims is unconstitutional, is estopped from raising the question of the constitutionality of the statute, the benefit of which it has availed itself of. If the position now taken by respondent be tenable, then, it seems to us, its proper course would have been to entirely ignore the statute, which, if unconstitutional, was a nullity, and bring its action against the appellant for a trespass in intruding upon its property without lawful authority. But it certainly cannot be permitted to avail itself of the benefit of the statute and at the same time claim that it is unconstitutional, null and void."
See also Power Co. v. Williams, 85 S.C. 179,67 S.E., 136. Here the respondent took the proceedings under a statute that it now claims is unconstitutional. While it is not absolutely necessary to decide the constitutionality of this statute, yet it is very desirable to do so, and the question fairly arises from the record. In my judgment the statute is constitutional and for the very excellent reasons stated by Mr. Chief Justice McIver in The Railroad Company v. TheRailroad Company, supra, at pages 322-324:
"But is the statute unconstitutional? In the first place, it will be observed that the provisions of the present Constitution is identical with that contained in the Constitution of 1868, section 3, article XII, and it is very strange that in none of the numerous cases of this kind which arose while the Constitution of 1868 was in force, was this question presented to this Court for decision. True, this is not conclusive: but in view of the intelligent, learned, vigilant and *Page 84 able bar of which this State can boast, the fact that this question has never before been raised, is entitled to some weight. Let us, therefore, examine for a moment whether the statute under which these proceedings were taken is in violation of the Constitution. The point made seems to be that the Constitution requires that the amount of the compensation "shall be ascertained by a jury of twelve men in a court of record as shall be prescribed by law," whereas, the contention is that the statute contemplated a proceeding by which the amount of compensation may be ascertained by a jury of twelve men, not in a court of record. Now, what are the provisions of the statute? By section 1744 of the Rev. Stat., the first step required to be taken is an application, `by petition to the judge of the circuit wherein such lands are situated, for the empanelling of a jury to ascertain the amount which shall be paid as just compensation for the right of way required.' The next step is that the said judge shall order the said petition to be filed in the office of the clerk of the Court of Common Pleas, and shall order the said clerk to empanel a jury of twelve to ascertain the compensation. The next step is that said clerk shall empanel a jury of twelve persons in the manner prescribed by the statute. Then, in section 1746, it is provided that the jury so empanelled, after being sworn faithfully and impartially to determine the question of compensation submitted to them, shall proceed to inspect the premises, and to take testimony and ascertain the amount to which the owner is entitled for the use of his land, and render their verdict in writing for the same. Then follows section 1747, copied above, securing a right of appeal from such verdict to the Circuit Court, and prescribing the manner in which such appeal shall be taken, by which the question of the amount of compensation may be submitted `to a jury in open court.' Then by section 1753, it is provided that all proceedings in relation to the condemnation of lands for the right of way `shall be filed in the office of the clerk of the Court of *Page 85 Common Pleas for the county in which such proceedings were had, and shall be there of record.' It will thus be seen that the statute makes such provisions as will secure to either party every right guaranteed to him by the Constitution, provided he complies with the provisions `prescribed by law' for such purposes. We can scarcely believe that the point made that the word `shall' in the constitutional provision, `as shall be prescribed by law,' implies that there must be legislation after the adoption of the present Constitution prescribing the mode of proceeding to be adopted in order to secure a trial `by a jury of twelve men in a court of record,' can be seriously insisted upon, especially in view of the provision in the first subdivision of section 11 of article XVII, of the present Constitution, `that all laws in force in this State at the time of the adoption of this Constitution, not inconsistent therewith, and constitutional when enacted, shall remain in full force until altered or repealed by the General Assembly or expire by their own limitation.' Even, therefore, if the constitutional question were properly before us, we would be obliged to say that there was at least grave doubt whether the statute was in violation of the Constitution, and the rule in such cases is well settled that the constitutionality of the statute should be sustained."
But it is stated that this may give the owner a right that is denied to the condemning corporation and violates the equal rights guaranteed to litigants. Is it unconstitutional to allow the defendant more challenges in the Court of General Sessions than is allowed to the State or to provide that a verdict of not guilty is final if in favor of the defendant and not final if in favor of the State? To say that in criminal cases it is different is no answer. In criminal cases there is a difference because the State is a party and the State may and does waive its right to equality.
Here it is said the respondent is a private corporation and as such is entitled to equal rights. The corporation has a dual capacity. It is to some extent public and to some *Page 86 extent private. In condemnation proceedings it must stand on its public and not its private rights. As a private corporation it can take not a foot of land without the "consent" of the owner. Condemnation proceedings are based on the want of consent.
The property is taken under the State's right of eminent domain and is in theory, at least, a taking by the State. When, therefore, the corporation undertakes to take the property of the owner in the right of the State, it must accept the right with all the limitations the State has seen fit to impose upon itself. There would be no equality if the condemning corporation were allowed all the rights that is granted to it by the State, as the right of the State, and all the rights of a private citizen. In condemnation proceedings the respondent stands solely upon the rights of the State to condemn private property for public use after compensation has first been paid or deposited.
The above answers all the questions properly before this Court.
For these reasons I dissent.