Fred L. Lemon v. Mississippi Transportation Commission ( 1997 )


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  •                   IN THE SUPREME COURT OF MISSISSIPPI
    
                              NO. 97-IA-01480-SCT
    FRED L. LEMON, OWNER; ROGER HYATT d/b/a
    
    OCEAN SPRINGS PAWN AND JEWELRY, LESSEE;
    
    PAT TARMATO d/b/a TARMATO'S CRAWFISH, LESSEE
    v.
    MISSISSIPPI TRANSPORTATION COMMISSION
    
    
    
                              CONSOLIDATED WITH
    
                                  NO. 97-IA-01481-SCT
    FRED L. LEMON
    v.
    MISSISSIPPI TRANSPORTATION COMMISSION
    DATE OF JUDGMENT:                   11/20/1997
    TRIAL JUDGE:                        HON. T. LARRY WILSON
    COURT FROM WHICH APPEALED:          JACKSON COUNTY COURT
    ATTORNEYS FOR APPELLANT:            JOHN G. CORLEW
                                        LEAH D. McDOWELL
                                        SCOTT CORLEW
    ATTORNEYS FOR APPELLEE:             JACK H. PITTMAN
                                        CHRISTOPHER M. HOWDESHELL
    
                                        EARL L. KOSKELA
    NATURE OF THE CASE:                 CIVIL - EMINENT DOMAIN
    DISPOSITION:                        REVERSED AND REMANDED - 3/25/1999
    MOTION FOR REHEARING FILED:         4/7/99
    MANDATE ISSUED:                     6/24/99
    
    
    
    
       EN BANC.
    
    
       SMITH, JUSTICE, FOR THE COURT:
                                          STATEMENT OF THE CASE
    
    ¶1. Appellant Fred Lemon owned two lots along U.S. Highway 90 in Ocean Springs, Jackson County,
    Mississippi. The property is currently home to two business lessees, Ocean Springs Pawn & Jewelry and
    Bayou Sporting Goods. Appellee Mississippi Transportation Commission ("MTC") seized those two pieces
    of property in connection with a highway project to widen a portion of Highway 90 in Ocean Springs.
    
                                              The Proceedings Below
    
    ¶2. On August 15, 1997, MTC filed two Complaints and Declarations of Taking against Lemon under
    Miss. Code Ann. §§ 65-1-301 through -347 (Supp. 1998), in the County Court of Jackson County.
    Pursuant to the new statute, Lemon was served with process on August 22, and the Honorable T. Larry
    Wilson, County Court of Jackson County, Mississippi (hereinafter "trial court") signed orders granting MTC
    immediate right and title to the property on August 28, 1997.
    
    ¶3. On September 19, 1997, Lemon filed two Motions to Set Aside Orders of August 28, 1997, and to
    Dismiss. On October 3, 1997, MTC filed two Motions for Order Declaring Public Use and to Amend
    Order Granting Immediate Right and Title to Property.
    
    ¶4. On November 20, 1997, the trial court issued orders denying Lemon's motions but certified the
    question of the statute's constitutionality for interlocutory appeal. On January 5, 1998, the trial court granted
    MTC's Motions for Order Declaring Public Use and to Amend Order Granting Immediate Right and
    Possession. On February 2, 1998, this Court granted interlocutory appeal of the November 20, 1997,
    orders and has now consolidated the two cases for appeal.
    
    ¶5. On interlocutory appeal, Lemon raises the following issues for review by this Court:
    
    I. WHETHER THE NEW TAKING SCHEME CODIFIED AT MISS. CODE ANN. §§ 65-1-301
    TO -347 VIOLATES THE DUE PROCESS RIGHTS OF PROPERTY OWNERS LIKE
    LEMON.
    
    II. WHETHER THE NEW TAKING SCHEME CODIFIED AT MISS. CODE ANN. §§ 65-1-301
    TO -347 VIOLATES ARTICLE 3, SECTION 17 OF THE MISSISSIPPI CONSTITUTION.
    
    III. WHETHER THE NEW TAKING SCHEME CODIFIED AT MISS. CODE ANN. §§ 65-1-
    301 TO -347 VIOLATES THE SEPARATION OF POWERS OF MISSISSIPPI
    GOVERNMENT.
    
                                            STANDARD OF REVIEW
    
    ¶6. When passing on questions of law, the standard of review is de novo. Mauney v. State ex rel.
    Moore, 
    707 So. 2d 1093
    , 1095 (Miss. 1998). Acts of the Mississippi Legislature are presumed to be
    constitutional, and the unconstitutionality of an Act must be proved beyond a reasonable doubt before it will
    be declared invalid. Chamberlin v. City of Hernando, 
    716 So. 2d 596
    , 601 (Miss. 1998). Finally, a due
    process violation under the state constitution requires the infringement of a liberty or property right.
    Robinson v. Stewart, 
    655 So. 2d 866
    , 869 (Miss. 1995).
    
                                                LEGAL ANALYSIS
    
    ¶7. The statute, Miss. Code Ann. §§ 65-1-301 to -347 (Supp. 1998), became law in July of 1997. Before
    examining Lemon's specific issues on interlocutory appeal, it is first necessary to discuss briefly the general
    procedure of condemnation and taking as outlined by this statute.
    
    ¶8. First, MTC "finds it necessary to condemn property." Miss. Code Ann. § 65-1-303(1). Next, MTC
    files a complaint and declaration of taking in the circuit or county court of the county where the property is
    located identifying the owner(s), the property, the reason for the taking, and the fair market value as
    determined by the transportation commission as just compensation for the taking. Miss. Code Ann. § 65-1-
    303(1)-(3). Further, the complaint and the declaration are to be accompanied by a deposit of a sum in the
    amount of the fair market value of the property. Upon the filing of the complaint, declaration and deposit,
    summons is then issued and served on the landowner. Id. § 65-1-303(4).
    
    ¶9. Whereupon, "title to the land or such other interest therein specified in the complaint and the declaration
    of taking, together with the right to immediate possession thereof, shall vest in the Mississippi
    Transportation Commission, and the judge shall enter such orders in the cause as may be required
    to place the transportation commission in possession and title." Id. § 65-1-305(1) (emphasis added). The
    landowner is provided an opportunity to file an answer to the Complaint "praying only for a determination
    of just compensation. Id. § 65-1-309 (emphasis added). Section 65-1-309 also contemplates that the
    answer contain "[s]uch affirmative defenses or matters as are pertinent to the action." Id. At this point, by
    statute title has already vested in the MTC. See Id. §§ 65-1-305(1) & -309(1).
    
    ¶10. Section 65-1-313 provides:
    
          After the filing of the plat, the judge, upon motion and ten (10) days' notice by either the
          transportation department or the owner shall, either in or out of term, hear and determine all issues
          raised by the pleading other than the issue of just compensation, including, if controverted, questions
          of necessary and proper parties, title to the land, interest taken and area taken.
    
    This hearing would clearly be after title to the property has passed to the MTC.
    
    ¶11. Finally, the final provision of the statute purports to preserve due process rights, as follows:
    
          Nothing in this article shall be construed so as to deprive the owner of the property or interest in the
          property which is the subject of acquisition pursuant to this article of due process of law as
          guaranteed by the Constitutions of the State of Mississippi and of the United States.
    
    Miss. Code Ann. § 65-1-347. With this statutory foundation laid, Lemon's specific issues can now be
    examined.
    
    I. WHETHER THE NEW TAKING SCHEME CODIFIED AT MISS. CODE ANN. §§ 65-1-301
    TO -347 VIOLATES THE DUE PROCESS RIGHTS OF PROPERTY OWNERS LIKE
    LEMON.
    
    ¶12. Lemon first argues that the new statute is unconstitutional because it denies the landowner the right to
    be heard on the question of public use. Lemon argues that this Court has held that notice to a property
    owner is prerequisite to any valid taking to comply with due process.
    
    ¶13. Lemon refers this Court to Underwood v. Foremost Financial Servs. Corp. where it was held that
    a seizure of property without notification and hearing under Mississippi's now amended replevin statute
    violated due process. Underwood v. Foremost Financial Servs. Corp., 
    563 So. 2d 1387
    , 1389 (Miss.
    1990). There, this Court agreed with a federal district court's holding that the replevin statute was violative
    of due process which said, as follows:
    
          The Mississippi replevin under bond statute provides no discretion to the judge to deny a writ of
          replevin on presentation of a complaint in the statutory form. By the terms of the statute, the judge
          "shall" grant whatever is presented. The required protections of judicial determination of the validity of
          the complaint, which are present in Mississippi's Claim and Delivery statutes, are absent.
    
    Wyatt v. Cole , 
    710 F. Supp. 180
    , 182 (S.D.Miss. 1989). Lemon asserts that likewise in the instant case
    the taking statute under which MTC proceeds denies the court the discretion to determine public use,
    because the mere filing of a complaint in statutory form and service of process is declared by the statute to
    deprive a landowner of title to his property.
    
    ¶14. MTC argues correctly that the statute clearly provides notice before it may obtain an Order vesting
    title in itself, because proof of service of process must be first provided to the court by MTC. See Miss.
    Code Ann. § 65-1-301 (Supp. 1998). Lemon's argument is appropriately focused on the opportunity to be
    heard and judicial determination.
    
    ¶15. MTC's response to Lemon's assertions is that procedural due process does not always require a pre-
    acquisition hearing before private property is acquired by a governmental entity, and is not required by
    statute in this instance. MTC also refers this Court to Underwood but for a different proposition. There,
    MTC argues that this Court "hinted" that a post-deprivation hearing might not be unconstitutional if an
    immediate need for such could be shown.(1) Underwood, 563 So.2d at 1391.
    
    ¶16. In Underwood, this Court said, "Notably, the record evinces no explanation for the necessity of an
    immediate seizure." Id. (emphasis in original). There, this Court cited Parratt v. Taylor, in which the
    United States Supreme Court said, as follows:
    
          We have, however, recognized that postdeprivation remedies made available by the State can satisfy
          the Due Process Clause. In such cases, the normal predeprivation notice and opportunity to be heard
          is pretermitted if the State provides a postdeprivation remedy. In North American Cold Storage
          Co. v. Chicago, 
    211 U.S. 306
    , 
    29 S. Ct. 101
    , 
    53 L. Ed. 195
     (1908), we upheld the right of a State
          to seize and destroy unwholesome food without a preseizure hearing. The possibility of erroneous
          destruction of property was outweighed by the fact that the public health emergency justified
          immediate action and the owner of the property could recover his damages in an action at law after
          the incident. In Ewing v. Mytinger & Casselberry, Inc., 
    339 U.S. 594
    , 
    70 S. Ct. 870
    , 
    94 L. Ed. 1088
     (1950), we upheld under the Fifth Amendment Due Process Clause the summary seizure and
          destruction of drugs without a preseizure hearing. Similarly, in Fahey v. Mallonee, 
    332 U.S. 245
    , 
    67 S. Ct. 1552
    , 
    91 L. Ed. 2030
     (1947), we recognized that the protection of the public interest against
          economic harm can justify the immediate seizure of property without a prior hearing when substantial
          questions are raised about the competence of a bank's management. In Bowles v. Willingham, 
    321 U.S. 503
    , 
    64 S. Ct. 641
    , 
    88 L. Ed. 892
     (1944), we upheld in the face of a due process challenge the
          authority of the Administrator of the Office of Price Administration to issue rent control orders without
          providing a hearing to landlords before the order or regulation fixing rents became effective. See also
          Corn Exchange Bank v. Coler, 
    280 U.S. 218
    , 
    50 S. Ct. 94
    , 
    74 L. Ed. 378
     (1930); McKay v.
          McInnes, 
    279 U.S. 820
    , 
    49 S. Ct. 344
    , 
    73 L. Ed. 975
     (1929); Coffin Brothers & Co. v. Bennett,
          
    277 U.S. 29
    , 
    48 S. Ct. 422
    , 
    72 L. Ed. 768
     (1928); and Ownbey v. Morgan, 
    256 U.S. 94
    , 
    41 S. Ct. 433
    , 
    65 L. Ed. 837
     (1921). These cases recognize that either the necessity of quick action by
          the State or the impracticality of providing any meaningful predeprivation process, when
          coupled with the availability of some meaningful means by which to assess the propriety of
          the State's action at some time after the initial taking, can satisfy the requirements of
          procedural due process.
    
    Parratt v. Taylor, 
    451 U.S. 527
    , 538-39, 
    1101 S. Ct. 1908
    , 1914-15, 
    68 L. Ed. 2d 420
    , 430-31 (1981)
    (emphasis added & footnote omitted), overruled on other grounds, Daniels v. Williams, 
    474 U.S. 327
    ,
    331, 
    106 S. Ct. 662
    , 664, 
    88 L. Ed. 2d 662
     (1986).
    
    ¶17. MTC argues that the postdeprivation remedies afforded the landowner under this statute are
    "meaningful means" by which to assess the propriety of the State's action after the initial taking and are thus
    nonviolative of due process. Therefore, where "quick action" is needed and reasonable under the
    circumstances, the statute is constitutional.
    
    ¶18. MTC correspondingly argues that quick action was needed and reasonable in the instant case,
    because of the necessity of avoiding court delays in highway projects. The highway projects are necessary
    to alleviate traffic pressure, and bidding on construction contracts and the removal or movement of utilities is
    impossible until the MTC has title to the property. MTC asserts that service to the general public
    necessitates that private property be acquired quickly in order to prevent landowners from delaying these
    highway projects by extensive court proceedings.
    
    ¶19. This Court has recognized such a necessity in Hudspeth v. State Highway Comm'n, a case
    discussing taking under an older statute, Miss. Code Ann. § 11-27-81 (1972), as follows:
    
          The "quick take" statute is a major public policy pronouncement appropriately emanating from the
          legislative branch of our government. It was designed to enhance the State's highway program by
          providing the highway department access to the needed right-of-way as quickly as practicable
          consistent with the legitimate interests of the landowner. The idea was to prevent landowners holding
          up the highway construction project by dragging out the eminent domain proceedings for as long as
          possible.
    
    Hudspeth v. State Highway Comm'n, 
    534 So. 2d 210
    , 213 (Miss. 1988). MTC submits that since this
    new statute became effective on July 1, 1997, it has filed in excess of four hundred (400) cases. Only thirty-
    six (36) have been challenged, including these two. This statute has allowed MTC to complete acquisition
    of right-of-way much faster than under the procedure followed pursuant to Miss. Code Ann. § 11-27-1
    (1972).
    
    ¶20. Finally, MTC argues that "meaningful means" exist to assess the propriety of the taking after title has
    vested in MTC. The pertinent part of the statute reads as follows:
          After the filing of the plat, the judge, upon motion and ten (10) days notice by either the transportation
          department or the owner shall, either in or out of term, hear and determine all issues raised by the
          pleading other than the issue of just compensation, including, if controverted, questions of necessary
          and proper parties title to land, interest taken and area taken.
    
    Miss. Code Ann. § 65-1-313 (Supp. 1998) (emphasis added). MTC asserts that if a property owner
    seriously challenges any issue in the condemnation process under this statute, the trial court is authorized to
    hear and determine that issue, which naturally includes the discretion to dismiss and rescind all prior orders.
    See Miss. Code Ann. § 65-1-327 (Supp. 1998).
    
    ¶21. Lemon responds that the notice required under the statute and given by the MTC in this case is
    inadequate, because upon service of process, MTC is entitled to immediate possession.(2) See Miss. Code
    Ann. § 65-1-303, -305 (Supp. 1998). The summonses in this case advised Lemon, as follows:
    
          Your response must be mailed or delivered within twelve (12) months from the date of delivery of this
          Summons and Complaint or a judgment by default will be entered against you for the money or other
          things demanded in the Complaint.
    
    See Miss. Code Ann. § 65-1-311 (Supp. 1998). Thirteen (13) days later the court entered its Orders
    Granting Plaintiff Right of Immediate Title and Possession.
    
    ¶22. Lemon further responds that MTC's interpretation of key subsections (§§ 65-1-313 and -327) of the
    statute are unsubstantiated and are lacking as meaningful means to assess the propriety of the taking.
    Lemon argues that Section 65-1-313 allows the court to hear and determine all issues only after the filing of
    the plat, which occurs up to six (6) months after the property is seized.(3) Moreover, the only pleading a
    property owner is permitted to file is an answer "praying only for a determination of just compensation."
    Miss. Code Ann. § 65-1-309 (Supp. 1998). Thus, Lemon asserts that Section 65-1-309 does not provide
    the plenary authority as MTC contends.
    
    ¶23. Lemon asserts that Section 65-1-327 does not give the court "discretion to dismiss and rescind all
    prior orders" as MTC claims. Rather, this section merely addresses the formalities of the proceedings, as
    follows:
    
          In all cases of procedure under this article, whenever the mode or manner of conducting the action is
          not expressly provided for in this article or by the Mississippi Rules of Civil Procedure, or whenever
          the rules of civil procedure are inapplicable, the judge before whom such proceeding may be pending
          may make all the necessary orders and rules of procedure necessary to carry into effect the object
          and intent of this article. The practice in such cases shall conform as nearly as practicable to the
          practice in other civil actions in the courts.
    
    Miss. Code Ann. § 65-1-327 (Supp. 1998).
    
    ¶24. Finally, Lemon argues that the post-deprivation remedy described by MTC is no cure, because the
    statute itself does not require a showing of immediate need or impracticability of a hearing. In fact, the only
    prerequisite to filing a complaint under the statute is that MTC "finds it necessary to condemn property."
    Miss. Code Ann. § 65-1-303 (Supp. 1998). Lemon argues that there is no requirement in this statute that
    the need be immediate, that the "quick take" statute (Miss. Code Ann. §§ 11-27-81 et seq. (1972)) be
    found inadequate, or that the court have any review of MTC's determination before title vests.(4)
    ¶25. The Fifth Amendment of the United States Constitution, as applied to the States by the Fourteenth
    Amendment, provides for due process protections. The Amendment in pertinent part reads as follows: "No
    person shall . . . be deprived of life, liberty, or property without due process of law; nor shall private
    property be taken for public use, without just compensation." U.S. Const. Amend V & XIV. Mississippi's
    constitution provides for due process similarly as follows: "No person shall be deprived of life, liberty, or
    property without due process of law." Miss. Const. Art. 3, § 14. Procedural due process protections are
    only implicated if state action deprives an individual of a protected property right. See, e.g., Esco v.
    Blackmon, 
    692 So. 2d 74
    , 78 (Miss. 1997)(citing Kentucky Dep't of Corrections v. Thompson, 
    490 U.S. 454
    , 459-60 (1989)). MTC admits that state action and deprivation of a protected property right are
    involved in this case.
    
    ¶26. It is then hornbook law that our state and federal constitutions prohibit laws which permit deprivation
    of property without prior notice or hearing. See Donovan v. Mayor & Council of Vicksburg, 
    29 Miss. 247
     (1855) (described in Underwood, by now Chief Justice Prather as probably the seminal Mississippi
    case on this subject). In Donovan, a city ordinance permitted the sheriff to seize and sell all hogs found to
    be running loose. Id. at 248. Petitioner's hogs had been seized and were to be sold when he challenged the
    ordinance. Id. This Court declared the ordinance void and said, "It deprives the citizen of his property
    without notice or trial, and without the opportunity to protect his rights, and of course without 'due course
    of law.'" Id. at 249-50. In the case sub judice, the rights of landowners are clearly limited by this statute,
    but one cannot say that a landowner has been deprived of property "without notice or trial." The statute
    provides notice to the landowner and contemplates a post-deprivation remedy.
    
    ¶27. The ultimate issue is then whether a post-deprivation remedy by statute is enough to satisfy due
    process. In Underwood, as MTC argues above, this Court cited Parratt which recognized "that either the
    necessity of quick action by the State or the impracticality of providing any meaningful predeprivation
    process, when coupled with the availability of some meaningful means by which to assess the propriety of
    the State's action at some time after the initial taking, can satisfy the requirements of procedural due
    process." Parratt, 451 U.S. at 539, 101 S.Ct. at 1915, 68 L.Ed.2d at 431.
    
    ¶28. However, since Parratt was handed down in 1981, the issue of procedural due process being
    satisfied by post-deprivation remedies has been a frequent subject addressed in the federal courts. First,
    due process does not always require the state to provide a hearing prior to an initial deprivation of property.
    Gilbert v. Homar, 
    520 U.S. 924
    , 
    117 S. Ct. 1807
    , 1812,138 L.Ed.2d 120 (1997). Three conditions must
    be met before a post-deprivation remedy will be deemed to satisfy due process. "The conditions are, first,
    that the deprivation be unpredictable; second, that predeprivation process be impossible, making any
    additional safeguard useless; and, third, that the conduct of the state actor be unauthorized." Charbonnet v.
    Lee, 
    951 F.2d 638
    , 642 (5th Cir. 1992) (footnote omitted). Clearly, the state statute here outlines a
    deprivation that is predictable. Second, predeprivation process is not impossible, just inconvenient for the
    MTC. Third, MTC's conduct is authorized under the statute. Thus, MTC's argument in reference to Section
    65-1-301 through -347 has failed to satisfy any of the conditions outlined in the federal courts.
    
    ¶29. Finally, the United States Supreme Court has stated that "[i]n situations where the State feasibly can
    provide a predeprivation hearing before taking property, it generally must do so regardless of the adequacy
    of a postdeprivation. . . remedy to compensate for the taking." Zinermon v. Burch, 
    494 U.S. 113
    , 132,
    
    110 S. Ct. 975
    , 987, 
    108 L. Ed. 2d 100
    , 118 (1990). Here, predeprivation process is feasible, although
    more time-consuming, as evidenced by the "quick take" statute found at Section 11-27-81.
    
    ¶30. Therefore, regardless of the adequacy of the statute's post-deprivation remedies, the statute must
    provide a predeprivation hearing before taking property. Because it does not provide for such a pre-
    deprivation hearing, the statute, Miss. Code Ann. §§ 65-1-301 to 65-1-347, is unconstitutional as violative
    of procedural due process under our state constitution, Miss. Const. Art. 3, § 14. Given this holding, we do
    not decide the federal due process issue.
    
    II. WHETHER THE NEW TAKING SCHEME CODIFIED AT MISS. CODE ANN. §§ 65-1-301
    TO -347 VIOLATES ARTICLE 3, SECTION 17 OF THE MISSISSIPPI CONSTITUTION.
    
    ¶31. Article 3, Section 17 of the Mississippi Constitution provides:
    
         Private property shall not be taken or damaged for public use, except on due compensation being first
         made to the owner or owners thereof, in a manner to be prescribed by law; and whenever an attempt
         is made to take private property for a use alleged to be public, the question whether the contemplated
         use be public shall be a judicial question, and, as such, determined without regard to legislative
         assertion that the use is public.
    
    Section 17 has consistently been interpreted by this Court to require that a court determine whether a taking
    is for a public use. See Mayor v. Thomas, 
    645 So. 2d 940
    , 942 (Miss. 1994) (whether there is a public
    use for the property is a judicial question without regard to legislative assertions that the use is public);
    Texas Gas Transmission Corp. v. Council, 
    199 So. 2d 247
    , 249 (Miss. 1967) (whether taking by
    eminent domain is for public use is judicial question); Horne v. Pearl River Water Supply Dist., 
    249 Miss. 358
    , 
    162 So. 2d 504
    , 506 (1964) (the question of public use is always a judicial question and that it is
    made so by Section 17 of our Constitution).
    
    ¶32. Lemon argues that Section 17 requires a judicial determination of public use in every case "whenever
    an attempt is made to take private property for a use alleged to be public. . ." Miss. Const. Art. 3, Sec. 17.
    Lemon further argues that the new statutory scheme under which the MTC proceeded here (Section 65-1-
    301 to -347) provides no requirement or opportunity for this judicial determination before title vests in the
    condemnor. Lemon asserts that the new statute unconstitutionally transfers the question of public use
    entirely to the condemnor, MTC here.
    
    ¶33. For example, Lemon interprets Section 65-1-305 to declare that title passes from the landowner to
    the MTC at the time of service of process. Thus, in effect, the landowner's first notice of the proceeding
    advises him that he no longer has title to the property in question. Lemon concedes that Section 65-1-309
    allows a landowner to file an Answer, but it is expressly limited to a prayer "for a determination of just
    compensation." No answer to the issue of public use is allowed.
    
    ¶34. MTC agrees that the determination of public use is a judicial question. If a landowner wished to
    challenge MTC's use of property for public use, then a judicial determination should be made. MTC refers
    this Court to its own statement in regards to judicial determinations of public use, as follows:
    
         The constitutionality of the state's power to take land for public use is so well established as to make
         any discussion of the issues useless. That the use of appellant's property intended by the state highway
         commission is a public use within the contemplation of Section 17 of the Mississippi Constitution is
         beyond question.
    Roberts v. Mississippi State Highway Comm'n, 309 So.2d 156,160 (Miss. 1975).
    
    ¶35. MTC also responds that the determination of public use is protected by the statute. As stated above,
    MTC interprets Section 65-1-313 to allow a landowner to file a motion on all issues raised in pleadings
    other than the issue of determining just compensation. Further, MTC says Section 65-1-327 allows the trial
    court discretion to rule on that motion. MTC states that if public use is really at issue, the statute clearly
    allows the trial court to hear that issue and to rule accordingly, including dismissing all prior orders. Finally,
    MTC argues that these procedural safeguards were followed in the instant case. Lemon raised the issue of
    public use by motion, and the trial court properly heard oral arguments and determined that the property
    being taken was for a public use.
    
    ¶36. Lemon replies that MTC has missed the point of Article 3, Section 17 of the Mississippi Constitution.
    Section 17 states that a judicial determination is required "whenever an attempt is made" to take property. It
    does not say that a judicial determination should be made after the taking has already occurred. The plain
    language of Section 17 requires that a court pass on the question of public use in every case of attempted
    seizure, regardless of whether the issue of public use may be "beyond question" in most cases. Section 17 is
    at minimum a constitutional formality that cannot be bypassed by statute. The fact that the trial court in case
    sub judice made an after-the-fact determination of public use does not remedy the facial deficiencies of the
    statute.
    
    ¶37. It is well settled law in Mississippi that when a statute is clear and unambiguous then there is no room
    for construction. In Marx v. Broom, 
    632 So. 2d 1315
    , 1318 (Miss.1994), this Court stated:
    
          When the language used by the legislature is plain and unambiguous, such as the language here, and
          where the statute conveys a clear and definite meaning, as here, the Court will have no occasion to
          resort to the rules of statutory interpretation. State v. Heard, 
    246 Miss. 774
    , 
    151 So. 2d 417
     (1963).
          The courts cannot restrict or enlarge the meaning of an unambiguous statute. City of Hazlehurst v.
          Mayes, 
    96 Miss. 656
    , 
    51 So. 890
     (1910); Hamner v. Yazoo Delta Lumber Co., 
    100 Miss. 349
    ,
          
    56 So. 466
     (1911); and State v. Traylor, 
    100 Miss. 544
    , 
    56 So. 521
     (1911).
    
    Marx v. Broom, 
    632 So. 2d 1315
    , 1318 (Miss.1994). The statute clearly and unambiguously fails to
    provide a predeprivation opportunity for the landowner to challenge the attempted seizure.(5)
    
    ¶38. Furthermore, the burden of proof in eminent domain cases is on the landowner to prove fraud or
    abuse of discretion in questioning the necessity of the taking. Morley v. Jackson Redevelopment
    Authority, 
    632 So. 2d 1284
    , 1288 (Miss. 1994). In contrast, this Court has stated "[public use] is the
    much more complicated issue in this case, and is subject to a different standard, which is rooted in Section
    17 of our Constitution . . ." Id. at 1289. It is the condemnor which has the burden of proving public use,
    unlike the question of public necessity, where the lack of public necessity must be shown by the owner. Id.
    (citing Pearl River Valley Water Supply Dist. v. Brown, 
    248 Miss. 4
    , 
    156 So. 2d 572
    , 576 (1963)).
    
    ¶39. In regards to eminent domain, this Court has said:
    
          No power conferred on any corporation, either private or municipal, is to be more strictly construed
          than the power to exercise the right of eminent domain. ...The power of eminent domain being in
          derogation of the common right, acts conferring it are to be strictly construed, and are not to be
          extended beyond their plain provisions. The right to exercise the power is strictly limited to the
          purposes specified in the statute conferring it. The proposed use of the lands of the owner must be
          clearly embraced within the legitimate object of the power conferred. Where there is any doubt in
          regard to the extent of the power, the landowner must have the benefit of that doubt.
    
    Mississippi Power & Light Co. v. Conerly, 
    460 So. 2d 107
    , 111 (Miss. 1984) (quoting Wise v. Yazoo
    City, 
    96 Miss. 507
    , 
    51 So. 453
     (1910)).
    
    ¶40. Therefore, since our state constitution--Article 3, Section 17--mandates that a determination of public
    use be made whenever private property is taken and the condemnor has the burden of proof on the issue of
    public use, we hold that Sections 65-1-301 to -347, strictly construed, are violative of Article 3, Section 17
    of our state constitution for not providing a predeprivation opportunity for the landowner to challenge the
    taking and to make the condemnor satisfy its burden on the issue of public use. Thus, the statute is hereby
    declared unconstitutional and void.
    
    III. WHETHER THE NEW TAKING SCHEME CODIFIED AT MISS. CODE ANN. §§ 65-1-
    301 TO -347 VIOLATES THE SEPARATION OF POWERS OF MISSISSIPPI
    GOVERNMENT.
    
    ¶41. Lemon lastly argues that the new taking statute violates the separation of powers provisions of the
    Mississippi Constitution found at Article 1, Sections 1 and 2. Article 1, Section 1 of our state constitution
    provides:
    
          The powers of the government of the state of Mississippi shall be divided into three distinct
          departments, and each of them confided to a separate magistracy, to-wit: those which are legislative
          to one, those which are judicial to another, and those which are executive to another.
    
    Miss. Const. Art. 1, Sec 1. Article 1, Section 2 provides:
    
          No person or collection of persons, being one or belonging to one of these departments, shall
          exercise any power properly belonging to either of the others. The acceptance of an office in either of
          said departments shall, of itself, and at once, vacate any and all offices held by the person so
          accepting in either of the other departments.
    
    Miss. Const. Art. 1, Sec 2.
    
    ¶42. Lemon argues that the statute unconstitutionally mandates that the trial judge order the property to be
    condemned. Lemon refers to the subsection which states, "the judge shall enter such orders in the cause as
    may be required to place the transportation commission in possession and title." Miss. Code Ann. § 65-1-
    305(1) (Supp. 1998). Lemon contends that the judge is thus afforded no discretion whatsoever in the
    exercise of judicial power to the order the property be condemned.
    
    ¶43. Lemon refers this Court to Isom v. The Mississippi Central R.R., in which a landowner challenged
    a railroad's charter which directed the jury in an eminent domain proceeding on the issue of determining the
    value of the property. Isom v. The Mississippi Central R.R., 
    36 Miss. 300
     (1858). This Court held,
    inter alia:
    
          [The] direction and instruction to the jury, by the legislative power, was an invasion of the powers
          properly belonging to the judicial department, expressly forbidden by the constitution, and therefore
          void.
    
    Id. at 315. The Isom Court explained:
    
          The legislature may not, therefore, exercise powers which, in their nature, are judicial; or close the
          courts, or forestall the citizen, in his remedy therein, by due course of law, for injuries to his lands or
          goods. The right of the legislature or the State, by law, to apply the property of the citizen to the
          public use, and then . . . to interfere with the just powers and province of the courts and juries in
          administering right and justice, cannot for a moment be admitted or tolerated under our constitution.
    
    Id. at 314-15.
    
    ¶44. MTC responds in two ways. First, it argues that this Court should not entertain this issue, because
    Lemon did not raise it before the trial court. Second, if this Court decides to entertain this issue, MTC
    submits that the statute does not violate the separation of powers provision of our state constitution for
    reasons developed below.
    
    ¶45. MTC cites several of this Court's holdings establishing that, except for questions involving minor
    parties and incompetents, questions not raised at the trial level will not be considered as grounds for
    reversal. See, e.g., Johnson v. Howell, 
    592 So. 2d 998
    , 1001 (Miss. 1991); Natural Father v. United
    Methodist Children's Home, 
    418 So. 2d 807
    , 809 (Miss. 1982); Astro Transport, Inc. v. Montez, 
    381 So. 2d 601
    , 604 (Miss. 1980); Comfort v. Landrum, 
    52 So. 2d 658
     659 (Miss. 1951).
    
    ¶46. Indeed, the general rule is that questions not raised at the trial level will not be considered here as
    grounds for reversal. Gale v. Lancaster, 
    44 Miss. 413
     (1870); Stewart v. City of Pascagoula, 
    206 So. 2d 325
    , 328 (Miss.1968); United Methodist Children's Home, 418 So.2d at 809; Mills v.
    Nichols, 
    467 So. 2d 924
     (Miss. 1985); Estate of Myers v. Myers, 
    498 So. 2d 376
     (Miss. 1986); Cooper
    Tire & Rubber Co. v. Striplin By and Through Striplin, 
    652 So. 2d 1102
     (Miss. 1995).
    
    ¶47. Lemons' Memorandum Brief in Support of Defendant's Motion to Set Aside Order and To Dismiss
    did not include an argument on separation of powers. The record indicates that a motion hearing on the
    constitutionality of the statute was conducted on October 10, 1997. After hearing the oral arguments, the
    trial court determined that the statute was constitutional in ruling on Lemon's motion. At no point in the
    record did Lemon present his separation of powers argument to the trial court, and thus, the trial court
    never addressed it in its order.
    
    ¶48. In his reply brief, Lemon does not deny that the separation of powers argument was not made in the
    trial court. However, he argues instead that it is simply a variation on his Section 17/state constitution
    argument above, because "[t]he new taking scheme violates separation of powers for the same reasons it
    violates section 17." Regardless of how Lemon tries to spin this point, it is clear that Lemon did not raise
    this separation of powers argument at the trial court level. Accordingly, we will not consider it.
    
                                                    CONCLUSION
    
    ¶49. Regardless of the adequacy of the statute's post-deprivation remedies, an eminent domain statute must
    provide a predeprivation hearing before taking property. The statute, Miss. Code Ann. §§ 65-1-301 to 65-
    1-347, does not do so and is thus unconstitutional as violative of procedural due process under our state
    constitution, Miss. Const. Art. 3, § 14. Given this holding, we do not decide the federal due process issue.
    ¶50. Our state constitution--Article 3, Section 17--mandates that a judicial determination of public use be
    made whenever an government takes private property. Moreover, the condemnor has the burden of proof
    on the issue of public use. Hence, Sections 65-1-301 to -347, strictly construed, violates of Article 3,
    Section 17 of our state constitution for not providing a predeprivation opportunity for the landowner to
    challenge the taking and make the condemnor satisfy its burden on the issue of public use.
    
    ¶51. Because Lemon's separation of powers argument was not raised before the trial court, we will not
    consider it for the first time on appeal.
    
    ¶52. For these reasons, we reverse the judgments of the lower court, and we remand for further
    proceedings consistent with this opinion.
    
    ¶53. REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS
    OPINION.
    
    PRATHER, C.J., SULLIVAN, P.J., MILLS AND WALLER, JJ., CONCUR. McRAE, J.,
    CONCURS IN RESULT ONLY. PITTMAN, P.J., AND BANKS, J., NOT PARTICIPATING.
    
    
    
    
    1. Lemon argues that Underwood provides no such "hint," and in no case, suggests a statute providing
    such a process might be constitutional.
    
    2. Recently, in Branaman v. Long Beach Water Management Dist., 
    1999 WL 12796
    , *4 (Miss.), this
    Court declared Miss. Code Ann. § 51-29-39, a different eminent domain statute, unconstitutional on its
    face regarding the "very narrow due process issue of adequate notice to prepare for trial."
    
    3. Section 65-1-309(3) provides the MTC with six (6) months from the date of filing of the complaint in
    which to file a plat.
    
    4. The "quick take" statute requires a showing of irreparable harm and delay if the ordinary eminent domain
    proceedings are to be used, and provide for a judicial determination of immediate public need. Miss. Code
    Ann. §§ 11-27-83 and 11-27-85.
    
    5. The "quick take" statute, Miss. Code Ann. §§ 11-27-81 to -91 (Supp. 1998), safeguards the
    landowner's predeprivation right to contest the question of public use. Section 11-27-83 requires the
    condemning authority demonstrate that it will suffer irreparable harm and delay unless given the opportunity
    to proceed to immediate possession. The court then appoints a disinterested appraiser to appraise the
    property taken, and Section 11-27-85 provides that the court shall nonetheless deny immediate possession
    on account of uncertainty with respect to the question of immediate public need. Thus, the landowner under
    this statute has a predeprivation opportunity to contest taking on grounds of public use. This Court has
    approved of this statute and noted its purpose, as follows:
    
         The "quick take" statute . . . was designed to enhance the State's highway program by providing the
         highway department access to the needed right-of-way as quickly as practicable consistent with the
         legitimate interests of the landowner.
    
    Hudspeth v. State Highway Comm'n, 
    534 So. 2d 210
    , 213 (Miss. 1988) (emphasis added).