Jones v. Commissioners of Franklin County

Douglas, J.,

dissenting.

I can not concur in the opinion of the Court, either in its theory or its result, because it seems to me that a substantial injury is being done to the plaintiff by a construction of a statute purely technical in its nature, and justified neither by public policy nor common right. I agree with the opinion in so far as it holds that a county is not responsible for a pure tort committed by one *458of its officers or employees; but we must remember that a tort can never confer a right upon tbe wrongdoer. If tbe county ratifies the act and keeps tbe property thus wrongfully taken, i: becomes responsible to tbe owner for its value. If it repudiates tbe act, it must relinquish tbe property, of which tbe owner may at once take possession without let or hindrance. When, therefore, the Board of Commissioners took wrongful possession of the plaintiff’s land, they became personally responsible to' him for the injury, without acquiring any right thereto, either for themselves, the county or the public. This latter proposition, I understand, is not disputed by the Court. While it does not say so in so many words, I presume that the. Court intended to hold that the Board of County Commissioners has exclusive original jurisdiction of all claims arising from the taking of private property for the use of the county. Where is such exclusive jurisdiction conferred upon the Board ? Not by the act of 1899, as stated by the Court, which nowhere says so-. If the act does not say so, why should we say so, especially when the only result of siich interpolation is to' deprive the plaintiff of his lawful remedy for an admitted wrong ? The act does not profess to make the remedy exclusive, and, in fact, provides that it shall apply only when the plaintiff sees fit to' resort to such a tribunal.

In the case at bar, the plaintiff did present to the County Commissioners his claim for damages within thirty days, as provided by the act, but the Board refused to entertain the claim because it was not presented through the Superintendent of Roads. This would seem to me to be purely directory, and could not affect the merits of the claim. But perhaps I am mistaken. Perhaps the Road Superintendent is a court, having exclusive oxfiginal jurisdiction of all such claims, no matter how great they may be in amount. If so, and he should refuse to act, I presume the injured party would be compelled to bring an action for a mandamus, which *459would probably com© to tbis Court on appeal. Suppose the Board of Commissioners should then refuse to entertain the claim, another action for another mandamus would be necessary, and another long and expensive litigation through all the Courts. Perhaps then the Board might pass upon his claim, and allow nominal damages, which would force him to appeal. Thus, after perhaps four or five years of litigation, and necessary expenses greater than the value of his claim, the plaintiff would succeed in getting into- the Superior Court, where his claim could be tried upon its merits. He is there now. Why put him out, and make him take this long and roundabout journey with the simple result of getting back to where he started ?

It will be said that this is an extreme case; but it would be entirely possible under the opinion of the Court, which puts it in the power of the county authorities to wear out any unwelcome claimant, even if they did not succeed in putting him out on some technicality during the progress of the trial. In the present case, when the plaintiff goes back to the County Commissioners or the Road Superintendent, whichever has exclusive original jurisdiction, he will be met with the objection that more than thirty days have elapsed since the injury.

Can we suppose that the Legislature intended any such hardship and injustice? Then why not give the act the reasonable construction of saying that the remedy therein provided is simply cumulative ? We so hold in criminal actions; why not in civil actions ? We are constantly told that while a man may not be guilty under the statute, he is guilty at common law. Why should we not also say that while an injured party has not an adequate remedy under .the statute, he retains his right to appeal to the Courts of general jurisdiction to redress his wrong.

In the further discussion of this case I shall cite but few authorities, as my time is short; but I shall revert to this sub*460ject, and. incidentally to this opinion, when thé .principle conies again before ns.

My objection to this decision is that its ultimate tendency is to undermine the foundations of private right. It is well settled that private property can not be taken, even for a public purpose, without compensation. The act under consideration provides that when an account is presented for material taken, “it shall be the duty of said Commissioners -to pay for the same a fair price.” This the defendants have refused to do. Even if the statutory remedy were intended to be exclusive, it would be totally inadequate, and therefore unconstitutional and void. The only provision for compensation is when the owner of any material so taken, or his agent, “shall present an account of the same, through the County 'Road Superintendent, at any regular meeting of the County Commissioners within thirty days after the talcing and carrying away of such timber,” etc. There is no provision for notifying the owner of the taking of such material. It may be taken during his absence, or from back part' of his plantation, and he may not know it until the thirty days have elapsed. Moreover, he is required to-present his claim at a regular meeting of the Commissioners. Suppose that only one regular meeting is held during the thirty days, as i's usually the case, and the material is taken the da.y before such meeting; under the statute the owner would have less than twenty-four hours in which to find out that his property had been taken, to find the Superintendent, to- get his claim into shape, and to- present it to' the Commissioners. If he failed to do this within the time limited, he wo-uld lose all remedy. Again, suppose the Commissioners should fail to hold a regular meeting within •the thirty days, the owner would have no1 opportunity whatever of presenting his claim under the statute. Surely this can not be'the law, and yet it will become the law if the statutory remedy is held to be exclusive.

*461Let us briefly examine tbe Constitution of tbis State and see wbat are some of tbe rights of tbe individual. Tbe Declaration of Rights declares: Section — “That we bold it to be self-evident that all men are created equal; they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and tbe pursuit of happiness.” Section 17 — ‘No person ought to be * * * in any manner deprived of bis life, liberty or property but by tbe law of the land.” Section 35 — “All Courts shall be open; and every person for an injury done him in bis lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

In tbe case before us, tbe plaintiff has admittedly suffered an injury to bis land, and the Superior Courts are open and have general jurisdiction of all such subjects. If we take away such jurisdiction without leaving tbe plaintiff an adequate remedy, justice is denied to him, and be is deprived of bis property contrary to tbe law of tbe land. '

Tbis Court has said in Dargan v. Railroad, 113 N. C., 596, 598: “Tbe right of the State to take private property rests upon tbe ground that there is public necessity for such appropriation, and can be exercised only where tbe law provides tbe means of giving adequate compensation to1 tbe owner.”

In Railroad v. Commissioners, 127 Mass., 50, tbe Court says: “It has long been settled by tbe decisions of tbis Court that a statute which undertakes to appropriate private property for a public highway of any kind, without adequate provision for tbe payment of compensation, is unconstituional and void, and does not justify an entry on tbe land of tbe owner without bis consent.”

In Brickett v. Aqueduct Co., 142 Mass., 394, 396, tbe language of tbe Court was that “a statute which attempts to authorize tbe appropriation of private property for public uses^ *462without making adequate provision or compensation, is unconstitutional and void.”

Both these cases are cited with approval by the Supreme Court of the United States in Sweet v. Rechel, 159 U. S., 380, where the Court says, on page 399: “When, however, the Legislature provides for the actual taking and appropriation of private property for public uses, its authority to enact such a regulation rests upon its right of eminent domain — a right vital to the existence and safety of government. But it is a condition precedent to the exercise of such power that the statute make provision for reasonable compensation to the owner.” In Gamble v. McGrady, 75 N. C., 509, it was held, quoting the syllabus, that “Everyone is entitled to notice in any judicial or quasi judicial proceeding, by which his interest may be affected; hence, an order by County Commissioners appointing appraisers to assess the value of the benefits and damages which would accrue to-the owners of land on account of a certain canal sought to he cut through his land, upon the petition of other parties, filed under the provisions of the 39th chapter Battle’s Revisal, is void, unless said landowner be made a party to the petition. Sections 9 and 12, Chapter 39, Battle’s Revisal, are unconstitutional.”

In Sawyer v. Hamilton, 5 N. C., 253, concerning the laying out of a turnpike, the full opinion of this Court is as follows: “Let the report of the commissioners he set aside, on the ground that Enoch Sawyer, through whose lands the road is laid off, had not notice.”

In Railway Co. v. Railway Co., 29 Fed. Rep., 728, 731, Justice Brewer, then a Circuit Judge, referring to' condemnation of a right-of-way, says: “Though'a special, it is a judicial proceeding, and a vital element of judicial proceedings is notice to a party against whom a right is asserted before a final determination of that right.”

In Nield’s Road, 1 Pa. St., 353, the Court says: .“The law *463abbors all ex parte proceedings without notice. Notice in this case to the owners of property was absolutely necessary. To take a man’s property and assess his damages without notice of it, is repugnant to every principle of justice, and such a proceeding is utterly void.”

Mills on Eminent Domain, Sec. 88, says: “Where the statutory remedy is not complete, the common law remedy remains. Eor an entry on land, or the taking or destruction of property, of another, the common law gave the injured party the remedies of trespass, trespass on the case, or ejectment. These remedies gave the owner complete compensation for the invasion of his rights of property. The statutory remedy which is provided must be complete in ascertaining the damages and securing their payment, or the common law remedy may be pursued. The provision of a specific mode of ascertaining damages confers no right which did not exist before. The omission of a specific mode leaves the party his common law right. If the statute only provides a partial remedy, there is a remedy for the remainder at common law. The payment of damages must he secured; and if, after condemnation, there is a refusal to pay, trespass or ejectment, with mesne profits, may be maintained.” For each of these propositions, the learned author cites authorities of the highest respectability. See also Randolph on Em. Domain, Secs. 227, 228, 229, 230, 231; Lewis on Em. Dom., Secs. 364, 365, 366, 456; Enc. PL and Prac., 481, 486, 528, 544, 545, 623, and especially pages 691, 694, 715, 716; Black’s Const. Law, See. 130; Cooley on Const. Lim., 449, 664, 665, 692; Thompson on Corp., Sec., 5590, 5621.

Among all the cases that I have examined, the one that perhaps more clearly represents my views is Stuart v. Palmer, 74 N. Y., 183, 30 Am. Rep., 289, where it is held, quoting the headnotes, that:

“A law imposing an assessment for a local improvement *464without notice to, and a bearing, or an opportunity to be beard, on tbe part of tbe owner of tbe property to be assessed, has tbe effect to deprive him of bis property without 'due process of law,’ and is unconstitutional.
“Tbe Legislature may prescribe tbe kind of notice and tbe mode in which it may be given, but it can not dispense with all notice.
“It is not enough that tbe owner may, by chance, have notice, or that be may, as a matter of favor, have a bearing, the law must require notice and give a right to a bearing.
“So also it is immaterial that tbe assessment has been in fact fairly apportioned, the constitutional validity of tbe act is to be tested, not by what has been, but by what may he done under it.”

Tbe ability and learning in this celebrated case prompt me to make a long quotation, which will take tbe place of anything I am capable of saying. Tbe Court says, beginning on page 189:

“What one pays for taxes and assessments is taken for tbe public good, and can be justified upon no other theory. Private property can. not be taken for private purposes, even under tbe legislative power of taxation. Taxation and assessment imply apportionment. Each person must share the burdens of taxation and assessment equally with all others in like situation. Property may also be taken by tbe right of Eminent Domain, where tbe public good requires. In such case what one parts with is just so* much more than bis share of contribution to tbe public good, and hence for such property be must receive compensation in money or its equivalent.
“It must be conceded that property can not be taken by tbe right of eminent domain, without some notice to tbe owner, or some opportunity on tbe part of tbe owner, at some stage of tbe proceeding, to be beard, as to1 tbe compensation to be awarded him. An act of tbe Legislature, arbitrarily taking *465property for tbe public good, and fixing tbe compensation to be paid, could not be upheld. There would in such case be tbe absence of that ‘due process of law’ which both tbe Federal and tbe State Constitutions guarantee to every citizen. Can it be that when tbe public takes land for a public highway, tbe owners thereof are entitled to a bearing as to tbe compensation which they are to receive, and yet that tbe lands on both sides of tbe highway may be assessed to pay such compensation to their entire value, without any opportunity on tbe part of tbe owners to be beard ? Tbe Legislature can no more arbitrarily impose an assessment for which property may be taken and sold, than it can render judgment against tbe person without a bearing. It is a rule founded on the first principles of natural justice, older than written constitutions, that a citizen shall not be deprived of bis life, liberty and property without an opportunity to be beard in defense of bis rights, and tbe constitutional provision that no person shall be deprived of these ‘without due process of law’ has its foundation in this rule. This provision is tbe most important guarantee of, personal rights to be found in tbe Federal or State Constitution. It is a limitation upon arbitrary power, and is a guaranty against arbitrary legislation. No citizen shall arbitrarily be deprived of bis life, liberty or property. This tbe Legislature can not do nor authorize to be done. ‘Due process of law’ is not confined to judicial proceedings, but extends to- every case which may deprive a citizen of life, liberty or property, whether the proceeding be judicial, administrative or executive in its nature. This great guaranty is always and everywhere present to protect the citizen against arbitrary interference with these sacred rights.
“It is difficult to define with precision the exact meaning and scope of the phrase ‘due process of law.’ Any definition which could be given, would probably fail to comprehend all the eases to which it would apply. It is probably wiser, as *466recently stated by Mr. Justice Miller, of tbe United States Supreme Court, to leave tbe meaning to be evolved 'by tbe gradual process of judicial inclusion and exclusión, as tbe cases presented for decision shall require, with tbe reasoning •on which such decisions may be founded.’ It may, however, be stated generally that due process of law requires an orderly proceeding adapted to the nature of the case in which the 'Citizen has an opportunity to be heard, and to defend, enforce and protect his rights. A hearing, or an opportunity to be heard, is absolutely essential. We can not conceive of due process of law without this. In his argument in the Dartmouth College case (4 Wheat., 519), Webster definéd ‘due process of law’ as a proceeding 'which proceeds upon inquiry and renders judgment only after trial.’ Mr. Justice Edwards, in Westervelt v. Gregg (12 N. Y., 209, 62 Am. Dec., 160), defines it as follows: 'Due process of law undoubtedly means in due course of legal proceedings according to those rules and forms which have been established for the protection of private rights.’ Judge Cooley, in his work on Constitutional Limitations, at page 355, after saying that 'due process of law’ is not confined to ordinary judicial proceedings, but extends to all cases where property is sought to be taken or interfered with, says that 'due process of law in ¡each particular case means such an exertion of the powers of government as the settled maxims of law permit and sanction,' .•and under such safeguards for the protection of individual rights as these maxims prescribe for the class of cases to which the one in question belongs.’ ”

In this long extract I have omitted, for the sake of time and space, the cases which were merely cited and not quoted. As therein shown-, it makes no difference whether a man’s land is taken under the form of condemnation or assessment, or, as in the case at bar, without the pretence of either. In any event it can be taken only by “due process of law,” giv*467ing to the owner just compensation, with an adequate remedy for obtaining it.

An examination of this act (Laws 1899, Chap. 581) discloses some singular features. It is by its terms operative in only seven counties and parts of three other counties. It further provides that it shall not apply to fifty counties therein named, but may be adopted by thirty-nine other counties, also named. It also contains the following most remarkable provisos: “Provided, that in any county or township not coming under the provisions of this act, but otherwise providing funds for road improvement, the Commissioners of such county may, at any regular meeting, at their discretion, adopt any of the sections (except Section i, levying a tax) of this act that in their judgment may be specifically adapted to the needs of their county, and incorporate the same in the road law of the said county.”

I can not remember ever having come across any such provision in any statute. I do not question the power of the Legislature to pass an act which may be ratified or rejected in its entirety by a vote of the people, and perhaps of the County Commissioners; but I am not aware of any principle or precedent authorizing .the Legislature to delegate its lawmaking power to a Board of Commissioners by empowering them to amend an existing statute by “incorporating” therein, at their pleasure, any one or more of twenty-seven different sections of a distinct act, which, by its very terms, does not apply to their county. I am glad this question has not been directly raised.

Some changes in the opinion of the Court, made since the above was written, may make certain parts of this opinion seem inapplicable, but I have no time to change them, and can add but little to what I have already said. The opinion of the Court seems to be based principally upon the case of McIntyre v. Railroad, 67 N. C., 278, and quotes therefrom as follows: “But the decisions do not go so much on the words of the act *468as upon its evident policy. If tbe owner of land overflowed by a mill-dam could bring bis action on tbe case for damages every day, no public mill could be established. In like manner, if tbe owner of land taken by a railroad for its track, could bring bis action for trespass every day, no , railroad could be built.” This quotation seems singularly inappropriate to’ tbe conclusion of tbe Court.

In tbe case at bar there is no ground whatsoever for supposing that actions will be brought “every day,” when from its very nature this action would end tbe controversy. Therefore tbe “evident policy” referred to in McIntyre’s case has no application whatever to tbe one before us. If this case comes neither within tbe words of tbe act nor tbe policy of our decisions, why should this Court write into tbe statute provisions which are not there. Tbe only effect of such interpolation, required neither by tbe spirit of tbe act nor the policy of tbe law, is to* deprive tbe citizen of bis property without compensation. If tbe laws axe ever stretched, it should be for tbe fuller protection of personal liberty and private property. In tbe case at bar, tbe plaintiff is not seeking to recover anything tbe county has taken, but simply to get compensation one time and in one final action. Tbe. question is -not whether tbe county shall have what it needs, but whether it shall pay for what it takes. Hence, tbe dangers of interminable litigation, so strenuously relied upon by tbe Court, have no visible relevancy to tbe case at bar.

In Johnston v. Commissioners, 70 N. C., 550, 556, in an opinion written by tbe same learned Justice who wrote McIntyre’s case, tbe Court says: “Tbe proceedings were irregular and void, because tbe Sheriff did not proceed with the jury to view tbe lands and assess tbe damages on tbe day named in tbe notice to plaintiff, but on a subsequent day, of which tbe plaintiff bad no notice. If tbis objection bad not been waived by tbe plaintiff’s appeal from tbe assessment of *469damages, it would have been good. The Sheriff had no jurisdiction to enter on the lands until the plaintiff was made a party to the proceedings by service of notice. The neglect to proceed on the day named, without notice of the postponement to the plaintiff, operated as a discontinuance as to' him, and put him out of Court. He might perhaps have regarded all after-proceedings as trespasses, being under a warrant which was void as to him for want of notice, or he might have brought up the proceedings to the Superior Court by recordari and had them quashed, and then, at least, have brought his action for the trespass.” This case shows that there are some cases at least in which an action for the trespass may be brought, even when the statute provides a special and summary proceeding. The same is held in the well-considered ease of White v. Railroad, 113 N. C., 610, 621, 37 Am. St. Rep., 639, 22 L. R. A., 627.

Another objection to such a construction of the statute is that it would be in violation of the Fourteenth Amendment to the Constitution of the United States, inasmuch as it does not provide for any notice to the plaintiff, nor any adequate cago, 166 U. S., 226. In Simon v. Craft, 182 U. S., 427, remedy for his compensation. C., B. and Q. R. Co. v. Chi-436, the Court says: ‘The essential elements of due process of law are notice and opportunity to defend. In determining whether such rights were denied, we are governed by the substance of things, and not by mere form.”

The last proposition of the opinion is startling to me. It is, in substance, that if it were impossible under the circumstances of a particular case for the landowner to receive notice of the appropriation of his property in time to present his demand, this Court would extend the time. It cites Darby v. Wilmington, 76 N. C., 138, and Broadfoot v. Fayetteville, 128 N. C., 529; but neither of these cases is any authority for the position. I am well aware of the principle *470tbat part of an act may be constitutional and a part unconstitutional if they are capable of separation, but in this case no such principle arises. The opinion of the Court does not declare any part of the act unconstitutional. This it clearly has the power to do, but to declare an act constitutional, and then to claim the right to suspend its operation if, in the judgment of the Court, it should at any time work a hardship, is entirely a different matter.

Article I, Section 9, of the Constitution, says: “All power of suspending laws, or the execution of laws, by any authority, without the consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.”

I am also awai’6 of the line of decisions represented by Culbreth v. Downing, 121 N. C., 205, 61 Am. St. Rep., 661, to the effect that statutes of limitation can not be shortened so as to bar existing rights of action without allowing reasonable time thereafter for the bringing of the action. The statute under consideration has no retroactive operation whatever, but operates only in future, and solely upon rights of action which itself creates. A reasonable interpretation of the act to the effect that the imperfect remedy therein provided is merely cumulative, would avoid all these difficulties and meet the ends of justice without violating any established rule of construction.

I deeply regret feeling compelled so often to dissent from the opinion of the Court, but I must follow my convictions. We are not merely deciding isolated cases, but are establishing general principles, more far-reaching perhaps than we can foresee. I can not entirely ignore the dangers that are ahead of us, and which, in my opinion, can be met only by the equal enforcement of the law in its letter and spirit, and especially in the fullest protection of individual rights.

Corporate monopoly and' socialism are twin-children of despotism. Hating each other, they are of common parent*471age, and equally demand tbe sacrifice of private right, on tbe one band on tbe claim of public convenience, and on tbe other on tbe plea of public service. So far as private property may be actually necessary for public use, it may be taken; but noi ground of public policy or of natural right will justify or excuse tbe refusal of just compensation, or, what is equivalent thereto, tbe refusal of an adequate remedy for obtaining such compensation. One of England’s greatest statesmen has said: “Tbe poorest man may in bis cottage give defiance to all tbe forces of tbe Grown — it may be frail, its roof may shake, tbe wind may blow through it, tbe storm may enter, tbe rain may enter, but tbe King, of England may not enter; all bis forces dare not cross tbe tbresbbold of tbe ruined tenement.” Of course be meant that tbe King could not enter except by tbe law of tbe land. Why should our ancestors have abolished tbe kingly office if more than kingly powers remain vested in a' County Road Superintendent ?