Southern Power Co. v. White ( 1912 )

This is a special proceeding in condemnation of land of the respondents for the use of the appellant company.

The appeal is from the decision of Judge Ernest Gary, in which he held: (1) That the appellants (respondents here) were entitled to the opening and reply; (2) that he had no right to grant a new trial nisi.

I. The statute give the right to open and reply to the "appellant." Both parties appealed from the verdict of the jury before the clerk. The case of Railroad Company v. Blake, 12 Rich. 650, after stating that in condemnation proceedings the right to open and reply is largely in the discretion of the Judge, says:

"We are of opinion, however, that in general, in the absence of contrary direction by the Judge ordering the issue, the owner claiming damages has the right to open and conclude."

This exception is overruled.

II. The second exception is as follows:

"2d. His Honor erred, it is submitted, also in holding that he had no power or jurisdiction to grant a motion for a new trial nisi in a condemnation suit, and in refusing to entertain and grant said motion, it being respectfully submitted that the Circuit Judge has power to grant a new trial in a condemnation case as well as other cases, and his Honor should have considered the merits of the motion and should have granted a new trial nisi."

The Constitution, article IX, section 20, says: "No right of way shall be appropriated to the use of any corporation until full compensation therefor shall be first made to the owner or secured by a deposit of money, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury of twelve men, in a Court of record, as shall be prescribed by law."

"Which compensation shall be ascertained by a jury oftwelve men." If the Judge grants a new trial nisi and thereby alters the amount in any way, the compensation is fixed by the Judge and not by the jury. To allow the compensation to be fixed by the Judge and not by a jury of twelve men, would be to repeal this constitutional protection to the landowner. The judicial department is as much bound by the Constitution as the executive and legislative departments. There is no such thing as an "inherent power" that overrides the Constitution. It is hardly necessary to quote the statute because it cannot change the Constitution. The act cannot empower any other than a jury of twelve men to ascertain the compensation, when the statute says "the question of compensation shall be thereupon submitted to a jury in open Court, whose verdict shall be final and conclusive;" it declares the law in full accord with the Constitution and is a legitimate exercise of legislative power and binding. When the statute goes on to say "unless a new trial shall be ordered by the Supreme Court" it must be held to mean that the new trial shall be ordered for a cause for which the Supreme Court is empowered by the Constitution to order a new trial, to wit: for errors of law committed in the trial.

In my opinion the second exception ought to be overruled.