Kessler v. Thompson

Oh Petition for Rehearing.

JOHNSON, Judge.

The respondent has filed a petition for rehearing. He sets forth and argues four propositions:

1. That the supreme court erred in determining that the procedure in eminent domain by a civil action is not exclusive as far as the acquisition of rights-of-way for highway purposes is concerned.

2. That this court erred in determining that the fixing of the procedure for the acquisition of property by eminent domain lies in the discretion of the legislature.

3. That the court overlooked or ignored the controlling provisions of our statute in determining that if the owner appeals within the thirty-day period provided by the statute, he retains title, control, and enjoyment of the property until final determination of such appeal.

4. That the court erred in holding that Sections 24-0119 to 24-0124, inclusive, ND RC 1943 and NDRC 1953 Supp., do not violate Sections 13 and 14 of our Constitution.

It will be unnecessary for us to consider in any great detail the first two propositions, advanced by the respondent as they were carefully considered in our opinion filed January 17, 1956. However, the respondent again calls our attention to a portion of the opinion written on petition for rehearing in the case of Becker County Sand & Gravel Co. v. Wosick, 62 N.D. 740, 765 , 245 N.W. 454, 463 . This court quoted from Weber v. Santa Clara County, 59 Cal. 265, 266 (decided in July, 1881), the following:

“ ‘The Constitution contemplates and provides for a proceeding in Court in all cases where private property is sought to be taken for public use, and it prohibits any other proceeding to that end.’ * * * ”

*187 The court further said:

“Inasmuch as the constitutional provision had been construed by the court of last resort of California before it was adopted in this state it must be presumed that it was adopted in this state with the construction which had been placed upon it by the Supreme Court of California.”

This language, found in the opinion written on the petition for rehearing, was not necessary to the determination of the result. It was not one of the basic premises of the decision. In any event we have in our opinion set forth the language that indicates that the court was concerned about the taking of the property before the owner had an opportunity to contest such taking in court. In the main opinion in the case in addition to the language that we have previously set forth in the opinion filed, this appears:

“It (referring to the procedure) 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 hoard 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.” (Emphasis supplied.)

Under the statute in existence at the time this case arose, the property was taken from the owner before he had an opportunity to litigate the right to take it and the compensation to be awarded. We conclude from a close and careful analysis of this decision that the main premise upon which it was based, was that the taking of the title from the owner by an administrative board before he had an opportunity to contest either the necessity for the taking or the amount of the compensation tendered or both, thus leaving him only an action for damages, was unconstitutional. This has. been obviated under the statutes as they now exist. If the owner of property is dissatisfied and appeals, his property cannot be taken or damaged until there has been a final determination by a court and a jury, unless waived, of all issues that are presented by him in his notice of appeal.

There can be no doubt that the purpose of the amendment of Section 20, Chapter 159 of the 1927 Session Laws by Chapter 128 of the 1933 Session Laws, NDRC 1943, § 24-0117 et seq. was to eliminate the constitutional objections determined by the court to Section 20, Chapter 159 of the 1927 Session Laws. It was also intended to give the owner of the property, if he desired, an opportunity to contest both the necessity for the taking and the amount of the compensation to be awarded before there was an actual taking of his property, thus allowing him, by an appeal, the right to prevent the taking if he could show no necessity therefor, and assure the payment into court of just compensation for the taking or damaging of his property. Under the statute then in effect and found unconstitutional in Becker County Sand & Gravel Co. v. Wosick, supra, the owner had no such opportunity. His property was first taken and then he was given the right to litigate the amount of damages due him. It is significant that the legislature did not attempt to amend the procedure involved except in this one particular. The opportunity now exists for the owner to get a judicial determination of any issue he may raise by an appeal before he loses title, possession or control of his property.

It is asserted that the validity of a statute must be tested not by what has been or is being done under it, but by the things which may be done under it. State v. Stark County, 14 N.D. 368 , 103 N.W. 913 ; State ex rel. Hughes v. Milhollan, 50 N.D. 184 , 195 N.W. 292 ; Wilder v. Murphy, 56 N.D. 436 , 218 N.W. 156 ; Herr v. Rudolf, 75 N.D. 91 , 25 N.W.2d 916 , 169 A.L.R. 1388 . Our decision in this case is predicated upon this well-known principle of law. The *188 property of the owner sought to he taken for highway use under present statutes allows the owner to retain title to the property, enjoyment and control thereof, until the time for appeal has expired and there has been a waiver of the right of appeal, or if he appeals within the thirty-day period provided by the statute, he retains title, control and enjoyment of the property until final determination of such appeal. This holding encompasses the complete application of the rule announced.

But it is asserted that in arriving at this conclusion we overlooked or ignored certain statutory requirements. Section 24— 0121, NDRC 1953 Supp., provides:

“Every owner entitled to an award for damages, before the same shall be paid to him by the clerk of court, shall sign and execute a receipt therefor. Such receipt shall contain a description of the premises covered by the award. In case the owner shall fail or refuse to accept such award and execute such receipt therefor, the clerk of court shall execute a receipt, reciting the deposit of such award with him and the description of the premises covered by the award.” (Emphasis supplied.)

It is contended that under the terms of this section the clerk of court may sign the receipt at any time and that there is no provision that the clerk shall not record the receipt immediately. Of necessity this section must be construed in connection with Section 24-0122, NDRC 1953 Supp. It states:

“At the expiration of thirty days from the award by the board of county commissioners from which no appeal has been taken as provided in section 95 of this Act (24-0123), whenever such money shall have been deposited in the office of the clerk of court, the receipt of the owners of said property, or of such clerk of court, shall be recorded in the office of the register of deeds of the county in which such real estate is situated, and the title to the land or materials thereupon shall be vested in the state.”

Three requisites must exist before the receipt of the clerk of court may be recorded :

1. Thirty days must expire from the award of the board of county commissioners;

2. The deposit of the award must have been made with the clerk of court; and

3. No appeal taken within thirty days from the making of the award;

then and then only, may the receipt of the clerk of court be recorded.

It is clear that under this section the receipt of the clerk of court evidencing the vesting of title cannot be recorded in the office of the register of deeds until “at the expiration of thirty days from the award by the board of county commissioners” and the deposit of the money in the office of the clerk of court. If the mere receipt of the clerk of court constituted the vesting of the title, there would be no object in providing that:

“At the expiration of thirty days * * * the receipt * * * of such clerk of court, shall be recorded in the office of the register of deeds of the county in which such real estate is situated, and the title to the land or materials thereupon shall be vested in the state.”

In other words all three prerequisites must exist before title vests. The language of both sections when construed together is entirely clear.

If an appeal is taken under the provisions of Section 24-0123, NDRC 1953 Supp., it is perfectly clear that title cannot vest until there has been a final determination of the appeal in accordance with the requirements of the statutes and our constitution as set forth in the opinion already on file. Section 24-0122, NDRC 1953 Supp., says: “At the expiration of thirty days * * * from which no appeal has been taken *189 * * *.” The implication of this wording is obvious. If an appeal is taken title cannot vest until it has been finally determined. If it were otherwise the property of the owner would be taken and damaged in advance of the judicial determination of the issues raised by an appeal. The purpose of the amendment of the statute as indicated by Chapter 128 of the 1933 Session Laws was to assure to the owner the retention of title, enjoyment and control of his property until the waiver of the right of appeal existed, or in case of an appeal, until the final determination of the appeal by court.

In this connection the respondent argues that we overlooked or ignored Section 24— 0124, NDRC 1953 Supp., which states:

“Notwithstanding the taking of an appeal as provided in section 95 of this Act (24 — 0123) in proceedings of the commissioner in the taking of land or materials by condemnation, or from the award made by the board of county commissioners in such proceedings, the commissioner may proceed with the use of the property so condemned and shall be liable for any additional amount awarded to the appellant upon such appeal.”

This statute was not referred to in any of the pleadings, findings of the trial court, nor the judgment in this action, nor was it argued upon the appeal. It was not referred to in the brief of the respondent. While it was not mentioned in our opinion, it was considered. By clear implication our holding that the owner of property sought to be taken for highway use retains title to the property, enjoyment and control thereof until time for appeal has expired, and if he appeals within the thirty-day period provided by statute, he retains title, control and enjoyment of the property until final determination of such appeal invalidated this statute.

This statute came into our law as a part of Chapter 177 of the 1953 Session Laws. It is a new statute. It was not a part of the procedure involved in condemnation of rights-of-way for highways as outlined in the 1943 Revised Code. It needs no citation of authority to determine that it is clearly prohibited by Section 14 of the North Dakota Constitution. Private property is not to be taken or damaged for public use without just compensation having been first made to or paid into court for the owner. The use of the property pending an appeal, would constitute at least a partial taking prior to the determination of the court that it was necessary to take the property and before the compensation for it had been determined, and paid into court. We have no hesitancy in stating that this statute is repugnant to Section 14 of the North Dakota Constitution.

It does not follow, however, because Section 24-0124, NDRC 1953 Supp., is violative of the Constitution, the entire procedure contemplated by Chapters 24-01 and 24 — 07, NDRC 1943 as amended by the 1953 Supplement must fail. On the contrary, we are of the opinion that this section may be stricken without impairing the remainder of the procedure.

“It is a fundamental principle that a statute may be constitutional in one part and unconstitutional in another part and that if the valid part is sever-able from the rest, the portion which is constitutional may stand while that which is unconstitutional is stricken out and rejected.” 11 Am.Jur. Constitutional Law, Partial Unconstitutionality of Statutes, Section 152, page 834; State ex rel. Cleveringa v. Klein, 63 N.D. 514 , 249 N.W. 118 , 86 A.L.R. 1523 ; State v. Ehr, 57 N.D. 310 , 211 N.W. 883 ; State v. Bickford, 28 N.D. 36 , 147 N.W. 407 , Ann.Cas.1916D, 140; Malin v. LaMoure County, 27 N.D. 140 , 145 N.W. 582 , 50 L.R.A.,N.S., 997, Ann.Cas.1916C, 207; Becker County Sand & Gravel Co. v. Wosick, 62 N.D. 740 , 245 N.W. 545 ; 6 R.C.L., Constitutional Law, Section 121, page 121; Department of State Highways v. Baker, 69 N.D. 702 , 290 N.W. 257, 258 , 129 A.L.R. 925 . In this last case this court held:

*190 “ ‘Where a part of a statute is unconstitutional, that fact does not require the courts to declare the remainder void also, unless all the provisions are connected in subject-matter depending upon each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the legislature would have passed the one without the other.’ ”

The provisions in Section 24-0124, NDRC 1953 Supp., which are violative of the Constitution may be stricken and there still remains a complete and workable scheme of legislation which is wholly unaffected as to purpose and efficacy by the part eliminated. It is entirely reasonable to assume that the statute thus stricken did not form an inducement to the lawmaking assembly in the enactment of the procedure used by the board of county commissioners and the highway commissioner in the acquisition of rights of way and material for highway purposes. We think it a reasonable assumption that the lawmakers would have enacted the statutes providing for such procedure with the unconstitutional section eliminated therefrom. This section may be taken out of the law without in any way impairing the efficacy of the procedure provided. The content of this statute is not so inseparably a part of the subject matter of other or related statutes, or so connected with them in meaning that it can be presumed that the legislature would not have passed Chapter 177 of the 1953 Session Laws without this statute. Malin v. LaMoure County, supra. See also Cooley on Constitutional Limitations, 7th Ed., page 246.

In the opinion filed January 17, 1956, we determined that the appellant by his special appearance had preserved his right of appeal. Then we said:

“The judgment of the district court is reversed and the injunction is dissolved. The plaintiff and respondent may file his notice of appeal within thirty days after the entry of judgment herein.”

To make the right of appeal fully effective and retain the status quo of the parties in case the respondent decides to appeal from the award of the county commissioners our previous opinion is modified to read:

“The judgment of the district court is reversed, the injunction to be dissolved at the expiration of thirty days from the entry of judgment herein if no appeal is taken, or if an appeal is taken, within thirty days from the entry of judgment, upon the taking and filing of the notice of appeal as required by our statute.”

We adhere to the views expressed in our former opinion except as herein modified.

The petition for rehearing is denied.

BURKE, C. J., and SATHRE, MORRIS and GRIMSON, JJ., concur.