May 25, 1925. The opinion of the Court was delivered by The following statement appears in the record:
"This is a special proceeding by the City of Spartanburg to condemn certain property of the respondents, commenced on the ________ day of June, 1923, by the service upon the respondents of a notice reciting that the city required the strip of land therein described for widening Trade Street, and that, the owners having demanded what the municipal authorities deemed an unreasonable price, they were notified to appoint six freeholders, resident in the city, to meet an equal number appointed by the city, to determine the true value of the land and any damages resulting by reason of widening the said street.
"The commissioners in condemnation rendered in writing the following award: `We find $4,000 damage, the city to place back the building as it now is.'
"Within ten days the city caused to be served upon the attorneys for the landowners notice that it appealed from the award of the commissioners to the next term of the Court of Common Pleas of Spartanburg County on grounds which it is not necessary to set out herein, as the sole question made by this appeal is the right of a municipality to appeal from the award of the condemnation commissioners in a proceeding to condemn for opening, extending or widening a street.
"At the call of the case for hearing in the Court of Common Pleas, the attorneys for the property owners moved to dismiss the appeal on the ground that the Court was without jurisdiction to entertain it, inasmuch as the section of the Code relating to municipal condemnation for street purposes contained a provision giving the right of appeal to the landowner, while no such right is thereby conferred on the municipality."
His Honor, the Circuit Judge, dismissed the appeal for the reasons stated in his order, which will be reported. The City of Spartanburg appealed upon exceptions, which, also, will be reported. It will not be necessary to consider *Page 270 the exceptions in detail, as the sole question properly before this Court is the right of a municipality to appeal from the award of the condemnation commissioners in a proceeding to condemn for opening, extending, or widening a street.
Section 4499 of the Code of Laws, Vol. 3, is as follows:
"Whenever the mayor and aldermen of any city or the intendant and wardens of any town in this State shall think it expedient to widen, open, lay out, extend or establish any street, alley, road, court or lane, they shall have power to purchase the lot, lots or parts of lots of land necessary for such street, alley, lane, road or court, and the fee simple of said land shall be vested in said city or town for the use of the public from the day of the deed of sale."
Section 4500 thereof is as follows:
"In case any owner or owners of said lot or lots of land as aforesaid shall refuse to sell the same, or shall demand what may be deemed by the said authorities an unreasonable price, then the said authorities shall nominate and appoint six freeholders, resident in said city or town, who shall meet an equal number to be named and appointed on the part of the owner or owners, to determine and fix upon the true and real value of such land, and any damage thereto, by reason of the opening, widening or extension of such highway. * * * In case any owner shall be dissatisfied with the valuation of his lot or lots, or such special damages aforesaid, it shall and may be lawful for such owner to appeal from the same upon giving notice of such appeal to the mayor and aldermen, or intendant and wardens, of such city or town, within ten days from the time of his receiving a notification of such valuation and assessment of damages, to the Court of Common Pleas for the county in which said lands may be at the next session thereafter; and the said Court shall order a new valuation and assessment of damages, or either, in such particular case, to be made by a jury, who shall be charged therewith in the same or some *Page 271 subsequent term, and their verdict shall be final and conclusive unless a new trial be granted. * * *"
The intention of these sections was to confer upon municipalities the power to institute condemnation proceedings, and to provide the manner in which the amount of compensation to the landowner for taking his property should be determined, if he refused to sell or demanded an unreasonable price. In case of failure on the part of the parties to agree upon the amount of compensation, the parties were to select a jury of 12 commissioners, and if they could not agree, they were to select another commissioner (which was not necessary in this case as the commissioners agreed upon the amount of compensation). In case either party was dissatisfied with the finding of the commissioners, then the dissatisfied party or parties had the right to a trial by jury in the Court of Common Pleas upon giving notice to the other party of such dissatisfaction. The verdict of the jury in the Court of Common Pleas was to be final, unless otherwise ordered by the Court.
We have not undertaken to give the exact language of the statute, but to state the proper construction to be placed upon it.
The statute must be construed in connection with the following constitutional provisions:
Article 1, § 17: "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."
Article 1, § 5: "The privileges and immunities of citizens of this State and of the United States under this Constitution shall not be abridged, nor shall any person be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws."
Under these provisions of the Constitution, the landowner unquestionably had the right to a trial by jury in the Court of Common Pleas, if he had given notice to the municipality *Page 272 that he was dissatisfied with the finding by the commissioners within the time prescribed by the statute. It is true the statute only purports to give the right of appeal to the landowner, but, as the municipality was entitled to equal protection under the laws, it was likewise entitled to a trial by jury in the Court of Common Pleas, upon giving notice to the landowner of its dissatisfaction with the verdict of the commissioners.
The word "appeal," as used in the statute, was not used in its technical sense, but simply as connoting notice. The word "appeal" is thus defined in 2 Enc. of Law, p. 425:
"The term `appeal' was unknown to the common law, and belonged to the Civil law and Courts of chancery, and meant in its technical and appropriate sense, the removal of a suit and its final determination from an inferior Court to a superior Court, and placing the case in the latter Court to be again tried de novo upon its merits just as though it had never been tried in the inferior Court."
It is only necessary to refer to the case of Railway v.Ellen, 95 S.C. 68; 78 S.E., 963, Ann. Cas., 1915B, 1942, to show that the commissioners by whom the amount of compensation was determined was not such a Court from which an appeal in its technical sense would lie, but that a mere notice of dissatisfaction would entitle the dissatisfied party to a hearing in the Court of Common Pleas.
In the case last mentioned, Mr. Justice Hydrick, in delivering the opinion of the Court en banc, says:
"The suggestion that the provision for trial by jury was intended for the benefit of the landowner only is not supported by the language used in the Constitution, nor by anysound reason that has been advanced."
(Italics added.)
The order of the Circuit Court is reversed.
MESSRS. JUSTICES WATTS, FRASER and MARION and ACTING ASSOCIATE JUSTICE JAS.W. JOHNSON concur. *Page 273