Plaintiff brought this action to enjoin the defendants from carrying out certain pending proceedings to condemn certain land for a gravel pit under the provisions of § 20, chapter 159, Laws 1927. The plaintiff predicates its cause of action upon the proposition that the statute under which the defendants are proceeding is violative of certain provisions of the Constitution of the United States and of the Constitution of the state of North Dakota. The complaint shows that plaintiff has a proprietary interest in the gravel pit sought to be condemned and that the taking thereof for a public use in violation of constitutional guarantees will result in injury for which available legal remedies would not afford the plaintiff adequate relief. The defendants interposed a general demurrer to the complaint. The demurrer was over-ruled and the defendants have appealed. The sole question presented on this appeal is whether the statutory provisions under which defendants are proceeding to take the land in question for a gravel pit is or is not violative of rights guaranteed to the plaintiff by the Constitution of the United States and the Constitution of the state of North Dakota.
Chapter 159, Laws 1927, created the department of state highways, defined its powers and duties, provided for its government and imposed penalties for violations of the enactment. Section 20 of said chapter 159 empowers the state highway commission, among other things, to acquire and to condemn for the state, land necessary to secure gravel for the construction and maintenance of highways. It provides that the state highway commission "by resolution or order, may, on behalf of the state, and as a part of the cost" of construction or maintaining "purchase, acquire, take over or condemn under the right and power of the eminent domain, for the state, any and all lands which it shall deem necessary . . . in the . . . construction . . . or maintaining of a state highway;" also that "it may, by *Page 748 the same means secure any and all materials, including . . . gravel . . . or lands necessary to secure such material. . . ." It further provides that when the state highway commission "shall determine by resolution or order that public exigency requires the taking of land or materials as aforesaid, it shall cause the same to be surveyed and described, and a plat thereof and the said description shall be recorded in the office of the register of deeds for the county wherein the same is located." It further provides that "if the state highway commission is unable to purchase such land . . . or materials . . . at what it deems a reasonable valuation, then the board of county commissioners of the county wherein such land . . . or materials . . . may be situated, on the petition of the state highway commission, shall proceed to ascertain and determine the damages and make awards in the same manner as provided by statute for lands taken for highway purposes as hereby modified or amended." It is further provided that "within 15 days after the filing of such petition with the county auditor, the board of county commissioners shall fix a time and place, not later than 60 days from and after the filing of such petition, for a hearing of all persons or parties interested or aggrieved by such taking." It is further provided that notice of time and place of hearing shall be published in the official newspaper of the county at least once a week for three successive weeks and that a copy of the notice "shall be served by the sheriff of the county upon all known owners residing or found within the county where such land or materials are situated, and upon the occupant of such land, not less than ten days prior to such hearing, by leaving a copy of such notice at the last known residence of such owner or occupant with a person of suitable age." Said section 20 further provides: "When the award of damages for the taking of land or materials, or both, shall have been completed by the board of county commissioners, the state highway commission shall pay or cause to be paid from the state highway fund into court for the benefit of the owners of land to whom such awards have been made by depositing with the clerk of court of such county, cash in the amount of such award or awards. Every owner entitled to such award before the same shall be paid to him by the clerk of court, aforesaid, shall sign and execute a receipt therefor, which receipt shall contain a description of the premises covered by the said award, and *Page 749 such receipt shall be recorded in the office of the register of deeds for the county in which such land or lands is situated. As soon as such money shall be deposited in the office of the clerk of said court, aforesaid, the title to the land or materials aforesaid shall be and become vested in the state, provided, however, that all parties aggrieved by the estimate of damages and the awards aforesaid shall have like remedies provided by statute for appraisal of damage for land taken by counties for highway purposes."
It is the contention of the plaintiff that § 20, chapter 159, Laws 1927, violates section 14 of the Constitution of the state of North Dakota which reads as follows:
"Private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for the owner, and no right of way shall be appropriated to the use of any corporation, other than municipal, until full compensation therefor be first made in money or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived."
In our opinion this contention is well founded. It will be noted that the constitutional mandate is: "Private property shall not be taken or damaged for public use without just compensation having been first made to or paid into court for the owner." This provision is directly applicable to property sought to be taken for public use for highway purposes. Martin v. Tyler, 4 N.D. 278, 60 N.W. 392, 25 L.R.A. 838.
Section 14 of the Constitution was intended to guarantee to an owner of property the full right of ownership including possession and enjoyment rather than a right to redress for wrong committed in taking his property away from him. The constitutional mandate is not satisfied by the ascertainment of the amount of compensation and making the same a charge upon a state or municipal fund for which the credit of the state or the municipality is pledged. Martin v. Tyler, supra. The constitution guarantees to the owner something more than a right to recover judgment for the damages caused by the taking of his property or a recovery of the property itself after it has been taken; it *Page 750 guarantees that his property shall not be taken or damaged even for a necessary public use "without just compensation in money being first made to, or paid into court for, the owner." Martin v. Tyler, supra. See also 20 C.J. pp. 835-839.
Section 14 of the Constitution was "calculated to protect property owners from injustice and wrong on the part of municipal or other corporations or individuals invested with the privilege of taking private property for public use, and should be given a liberal construction by the courts in order to make it effectual in the protection of the rights of the citizen." Donovan v. Allert, 11 N.D. 289, 91 N.W. 441, 58 L.R.A. 775, 95 Am. St. Rep. 720; 1 Lewis, Em. Dom. 2d ed. §§ 366, 389. And "the taking or damaging of private property for public use without the owner's consent is deemed so serious that payment therefor is a prerequisite to attempting to do so." This is so even though the ultimate right to take the property for the proposed public use is manifest. "This does not mean that it (the property) may first be appropriated, and paid for at the end of a suit for damages, but means that payment must precede the taking or damaging." Donovan v. Allert, 11 N.D. 289, 298, 91 N.W. 441, 58 L.R.A. 775, 95 Am. St. Rep. 720; 20 C.J. pp. 835, 836, 838, 839.
The protection afforded by § 14 of the Constitution is sufficiently broad to entitle the owner of the fee of premises dedicated for public use as a street to enjoin the erection of telephone poles thereon notwithstanding the city council having granted a franchise authorizing the construction and maintenance of a telephone system in the city and the use of the streets for such purpose, where the constitutional mandate has not been complied with, and there has not been paid to the owner in fee, or into court for him, compensation for the property taken. Donovan v. Allert, supra.
Clearly it was not the intention of the framers of the Constitution that private property might be taken for a public use and the owner of such property divested of title thereto by the determination of some administrative officer or board, and upon the payment into court for the owner of the amount of compensation determined by such officer or board. The constitutional requirement that compensation for private property taken for a public use shall be paid in advance of the taking is in harmony with the further requirement that, in case of dispute, *Page 751 the amount of compensation shall be determined by a judicial tribunal (2 Nichols, Em. Dom. 2d ed. § 372); and in harmony with the theory that the order or decree which transfers the title of the property from the person by whom it is held to the public agency which is to control and operate it for the public use (upon the payment of the compensation fixed therein) is fundamentally a judicial act. The constitution says that before private property can be taken for public use just compensation must first have been made to or paid into court for the owner. The constitution which contains § 14 also creates the judicial system of the state, enumerates the courts thereof and defines in a general way the powers of such courts. North Dakota Const. §§ 85-120. When § 14 of the Constitution speaks of compensation being paid into court for the owner, it undoubtedly has reference to the compensation which has been determined in some proceeding had in and by the very court into which payment is to be made. There was no intention on the part of the framers of the Constitution that an administrative officer or board might be vested with power to determine the compensation, the pre-payment of which is made the basis for divesting the owner of his property. Under section 14 of the Constitution the owner of property sought to be taken for a public use is entitled as a matter of right to a judicial determination of the amount of compensation to be paid for such property unless he, in some manner, either expressly or impliedly, waives such right.
The statutory provision involved here does not merely provide a mode (incident to the laying out or establishment of a public improvement) whereby the amount of compensation is estimated or tentatively ascertained by an administrative board and the owner of the land given what amounts in effect to an offer which he may accept or reject, either expressly or impliedly, with the absolute right to a judicial determination of the amount of compensation in the event he does not waive such right. Under the express language of the statute involved here title to the land passes from the owner to the state immediately upon the deposit in court of the amount of compensation fixed by the board of county commissioners even though the owner rejects the amount of compensation offered and promptly prosecutes an appeal to the courts from the order of the county commissioners. This procedure is violative of the rights guaranteed to the owner of property by § 14 of the *Page 752 state Constitution. Wulzen v. San Francisco, 101 Cal. 15, 35 P. 353, 40 Am. St. Rep. 17; Steinhart v. Superior Ct. 137 Cal. 575,70 P. 629, 59 L.R.A. 404, 92 Am. St. Rep. 183; 10 Cal. Jur. p. 416. It also in effect constitutes the Board of County Commissioners a court and gives to the order of such board a determinative effect which section 14 of the Constitution clearly and unmistakably says can be had only by the judgment of a court of competent jurisdiction, — that is, it gives to the order of such board and the payment into court of the amount of compensation fixed therein, the effect of divesting the owner of private property of title thereto and vesting the same in the public agency which is to control and operate it for the proposed public use. Wulzen v. San Francisco, supra.
It does not follow, however, that because the provisions of section 20 of the act are violative of the constitution that the entire statute must fail. On the contrary, we are of the opinion that the provisions of section 20 in question here may be stricken without impairing the remainder of the act. 6 R.C.L. pp. 121-127. The new procedure provided in § 20 for the taking of property required for highway purposes is merely incidental to the general and primary purposes of the statute. The method of condemning property for highway purposes provided by other provisions of law is still available. Sheridan County v. Davis,61 N.D. 744, 240 N.W. 867. The provision in section 20 which is violative of the Constitution may be stricken from the act and there still remains a complete and workable scheme of legislation wholly unaffected in efficacy and purpose by the part eliminated. It is not at all reasonable to assume that the provisions stricken formed any inducement to the law-making assembly in the enactment of the statute as a whole. On the contrary, we think the only reasonable assumption is that the lawmakers would have enacted the statute with the unconstitutional provision eliminated therefrom.
We find it unnecessary to determine whether the statute is vulnerable to any of the other constitutional objections urged against it. These objections are all leveled at the statutory provision which we hold to be violative of section 14 of the Constitution; and the objections are all such as can readly be obviated without in any manner impairing the efficacy of the statute, in event the legislature sees fit to enact further legislation along similar lines. *Page 753
It follows from what has been said that the order appealed from is correct. It must be and is affirmed.
BURKE, BIRDZELL, NUESSLE and BURR, JJ., concur.