Ferguson v. Seward , 146 Miss. 613 ( 1927 )

^* Corpus Juris-Cyc. References: Eminent Domain, 20CJ, p. 1129, n. 34; Highways, 29CJ, p. 433, n. 99 New; p. 461, n. 41 New; p. 464, n. 83; p. 488, n. 46; p. 489, n. 51; p. 492, n. 98; p. 493, n. 5, 7 New; p. 509, n. 67 New; p. 513, n. 26 New, 37; p. 515, n. 71; p. 516, n. 79 New, 91 New. This is an appeal from the circuit court of Wilkinson county, and it involves the validity of the proceedings of the board of supervisors in laying out and changing the route of a public road leading south from Woodville, Miss., to the Louisiana state line.

At the April, 1926, meeting of the board of supervisors of Wilkinson county, a petition purporting to be signed by Mrs. S.J. Seward and fourteen others was filed, asking that the said board lay out, alter, open, and change the road in question by commencing on the west bank of the Woodville road, at the corporate limits of the town of Woodville, as staked out by the state highway engineers, and running southerly through and over certain lands therein described, and through and across the lands of the appellant, J.B. Ferguson, and terminating by connecting with the gravel highway at the Louisiana and Mississippi state line, as surveyed, run off, and staked by the engineers of the state highway department, and approved by the federal engineer. This petition recited that the public interest and convenience required that the said road be so laid out, opened, altered, and changed; that the petitioners were freeholders and householders of the said road district and of Wilkinson county; and that the owners of the land, through which the road would run, had been given five days' notice, as required by law.

Upon the filing of this petition, it was entered upon the minutes of the board of supervisors, and the board adopted the following order:

"Ordered that the above petition be and the same is hereby granted, and, further, ordered that J.E. Carter and T.C. Brown, members from the fourth and fifth supervisors' district, respectively, be and are appointed a committee to examine and view the contemplated route of the said road, and should they find the same practicable shall report their proceedings in writing at the May meeting of said board."

At the regular May meeting of the board, the committee appointed to examine and view the proposed route of the road reported that they had performed their duties, as required by law; that they had found the proposed road to be practicable; that they had laid out and marked it; and thereupon the board entered an order adopting and confirming this report, and ordering the proper road workers to open and work said road as changed. At the same meeting, an order was entered approving the plans, specifications, and estimates of cost of the project as then on file, and requesting the state highway department to advertise for bids for the construction of the road. An order was also entered designating May 17, 1926, as the date on which the board would go on the premises of the various owners of the land over which the road ran, for the purpose of assessing their damages, and directing that notice of the intention of the board so to do be served on the various owners of the land. At the same meeting, and at the time prescribed by section 4402, Code of 1906 (section 7082, Hemingway's Code), appellant filed with the board of supervisors the following claim for damages for the taking of his property:

"Honorable Board of Supervisors of Wilkinson County:

"Without waiving any legal right, and reserving to myself the right allowed by law to take any action proper and necessary for my relief, and expressly disclaiming the intent to accept any sum as compensation for my lands proposed to be taken for a public road, or for damages sustained and to be sustained by me in the construction of the proposed road, and being the road proposed to be constructed south from Woodville through my property and to the Louisiana state line, and reserving the right to accept such damages as may be allowed me on the final conclusion of any litigation or condemnation or any other action in which my property and claim is involved, I file this claim for damages: For compensation for the land taken for the said public road, and for damages sustained by me by the construction of the said road, and for damages to the property as a whole, and the cost of fencing, drainage, and all other consequent damages to my said land and property, the sum of six thousand dollars."

On the 15th day of May, the appellant filed a petition setting forth the various proceedings of the board of supervisors in reference to the laying out and changing of the road, and praying for a writ of certiorari to review the proceedings, and the same was granted by the circuit judge. To this petition the various landowners, as well as the board of supervisors, were made parties defendant, and the bond given for the issuance of the writ was made payable to these landowners and to the state of Mississippi. The writ was issued and served on the members of the board of supervisors on or before May 17, 1926, but on that date, ignoring this writ, the board proceeded to assess the damages of the several landowners and made a report thereof to the regular June meeting of the board. On the 3d day of June, a writ of prohibition, which was ordered to issue by a judge of this court, was served on the board of supervisors, requiring them to cease and desist from assessing the damages sustained by the appellant, and from awarding a contract for the construction of the highway across the lands of appellant, and from taking any further proceedings in said matters, as against the appellant, until and unless otherwise ordered by the court.

At the June meeting of the board, the report of damages assessed by the members thereof on May 17th was approved as to all the landowners except this appellant. At that meeting, there was also entered an order attempting to ratify and validate the action of the board as taken at the April meeting, by reciting at length that, at the April meeting, the board had adjudicated the existence of the necessary jurisdictional facts, although such facts do not appear in any of the orders adopted at the April meeting of the board. At the same meeting, there were other orders entered letting a contract for the construction of the road, except that portion across the lands of the appellant, but these orders, as well as certain proceedings, taken to increase the certiorari bond, are not here material.

When the writ of certiorari came up for hearing in the circuit court, the several landowners, who were made parties defendant to the petition, filed a disclaimer of all right or interest in the proceedings and moved the court to dismiss the proceedings as to them, and this motion was sustained. The appellant filed a motion to strike from the transcript of the record all orders or proceedings of the board, which had been taken and entered subsequent to the date of the service of the writ of certiorari, and this motion was overruled.

Wilkinson county filed a motion to dismiss the writ ofcertiorari, on the grounds, first, that the circuit court was without jurisdiction of the cause; second, that the alleged writ of certiorari was null and void and not authorized by law; third, the certiorari or appeal was premature; fourth, thecertiorari or appeal was not from a final judgment and was not authorized by law; fifth, the certiorari or appeal bonds were not made payable to Wilkinson county; sixth, no certiorari or appeal bond was executed and filed as required by law; seventh, no bill of exceptions was filed or tendered; eighth, Wilkinson county was not made a party or summoned as required by law; and, ninth, the court could grant no relief against the defendants named in the petition and summoned. This motion was sustained, and from the judgment dismissing the writ of certiorari this appeal was prosecuted.

The court below committed no error in eliminating Mrs. Seward and the other petitioners for the road as parties to the suit. It is true that a petition signed by ten or more freeholders and householders is necessary to confer on the board of supervisors jurisdiction to lay out, alter, or change a public road, but when such a petition is filed, the signers thereof do not become, in any proper sense, parties to the proceedings of the board of supervisors in laying out, altering, and changing the road, and condemning the necessary rights of way therefor, but, in any proceeding by a party adversely affected by the laying out of the road, or the taking of property therefor, the county, or its representatives, the board of supervisors, is the proper party defendant.

Section 90, Code of 1906 (section 72, Hemingway's Code), provides that:

"All cases decided by a justice of the peace, whether exercising general or special jurisdiction, may, within six months thereafter, on good cause shown by petition, supported by affidavit, be removed to the circuit court of the county, by writ of certiorari, which shall operate as a supersedeas, the party, in all cases, giving bond, with security, to be approved by the judge or clerk of the circuit court, as in cases of appeal from justices of the peace; and in any cause so removed bycertiorari, the court shall be confined to the examination of questions of law arising or appearing on the face of the record and proceedings."

While section 91, Code of 1906 (section 73, Hemingway's Code), provides that:

"Like proceedings as provided in the last section may be had to review the judgments of all tribunals inferior to the circuit court, whether an appeal be provided by law from the judgment sought to be reviewed or not."

Section 4405, Code of 1906 (section 7085, Hemingway's Code), provides for a review of all proceedings of the board of supervisors, in the laying out, altering, or changing any public road, and assessing damages therefor, by an appeal to the circuit court, but this does not exclude the right to have such proceedings reviewed by certiorari, as provided by section 91, Code of 1906 (section 73, Hemingway's Code), in which case the circuit court will be confined to an examination of the questions of law arising or appearing on the face of the record and proceedings. Upon the filing of the proper petition and bond, and the issuance and service of the writ of certiorari removing the proceedings to the circuit court for review, all proceedings therein by the board of supervisors were thereby superseded, and any attempted orders or proceedings of the board thereafter taken were improperly made a part of the transcript of the record transmitted to the circuit court, and the motion to strike these orders and proceedings should have been sustained. There is an additional reason why the orders of the board, entered at the June, 1926, meeting, attempting to ratify and validate the proceedings of the board at the April meeting, added nothing to the validity of these prior proceedings. This order, which was entered at the June meeting, recited that the necessary jurisdictional facts were found or adjudicated at the April meeting of the board, but, as said in the case of Board ofSupervisors v. Parks, 132 Miss. 752, 96 So. 466:

"This attempt to give the order a retroactive effect must fail; the board having no power so to do."

Counsel for the county of Wilkinson seem to contend thatcertiorari will not lie to review these proceedings of the board of supervisors, and that they may be reviewed by appeal only, but, in support of the action of the court in sustaining the motion of the county to dismiss the writ ofcertiorari, counsel relies principally upon the ground that thecertiorari was premature; that is to say, that the judgment of the board, establishing and laying out the road and condemning the appellant's land, was not a final judgment from which an appeal would lie, and that if certiorari could be maintained at all, it could only be after a final judgment assessing the damages to appellant's land.

We think the order of the board directing the road to be laid out and opened up, which condemned the appellant's land to the public use, was to all intents and purposes a final judgment, the validity of which may be reviewed by certiorari. The property owner may or may not elect to claim damages for the land taken. The statute has clearly marked out and defined how lands may be taken for this purpose, and, if the provisions of this statute are not followed and the proceedings upon which the condemnation is based are void, the landowner is not required to await the assessment of damages or to accept even full compensation, but he may, by certiorari, test the validity of the proceedings and defeat the taking of his land in any manner except as provided by law.

Counsel also contends that the certiorari was properly dismissed for the reason that the certiorari bond executed by the appellant was not payable to the county. The bond was made payable to the state of Mississippi, and the original petitioners for the road, who were improperly joined in the proceedings, and we think the bond should have been made payable to the county, but this defect in the bond was not sufficient ground for the dismissal of the certiorari. The bonds executed in this proceeding had the effect which a bond, payable as prescribed by law, would have had, and by virtue of the provisions of section 1022, Code of 1906 (section 742, Hemingway's Code), it will inure to the benefit of the party to whom it was designed by law as a security. This statute provides that:

"When a bond, recognizance, obligation, or undertaking of any kind shall be executed in any legal proceeding, . . . it shall inure to the person to whom it is designed by law as a security, and be subject to judgment in his favor, no matter to whom it is made payable, . . . and the persons executing such bond or other undertaking shall be bound thereon and thereby, and shall be liable to judgment or decree on such bond or undertaking as if it were payable and conditioned in all respects as prescribed by law, if such bond or other obligation or undertaking had the effect in such proceeding or matter which a bond or other undertaking, payable and conditioned as prescribed by law, would have had. . . ."

At most, the court should have, upon proper objection, required the defective bond to be perfected within a reasonable time, upon the penalty of a dismissal for failure to comply with such order of the court.

Upon the question as to the validity of the proceedings of the board in establishing, laying out, and changing the road, and condemning the appellant's land, this case is controlled by the decisions of the court in the case of Aden v. Board ofSupervisors, 142 Miss. 696, 107 So. 753, and authorities there cited. In the case at bar, there is nothing in the orders or proceedings of the board of supervisors to show that the board found or adjudicated that ten of the signers of the petition were freeholders or householders of the county. In fact, the orders of the board adjudicated nothing, but simply ordered that the petition be granted and the road laid out and opened, in accordance with the prayer of the petition. That ten of the signers of the petition for the laying out and opening of the road should be freeholders or householders of the county was a necessary jurisdictional fact, and there is nothing in the orders or proceedings of the board of supervisors to show that fact, and, as said in the Aden case, supra:

"It is true that more than ten names were signed to the petition, but the orders and proceeding of the board of supervisors nowhere shows that the board found or adjudicated that ten of these signers were freeholders or householders. Nothing can be presumed in favor of the jurisdiction of the board, and the mere recital in the face of the petition that the signers thereof were freeholders or householders does not establish that they were such in fact, and cannot take the place of a finding by the board of supervisors that this necessary jurisdictional fact existed."

There is no merit in any of the other grounds of the motion to dismiss the certiorari, and consequently the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.