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

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).