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 preacquisition 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 thirtysix (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 predeprivation 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).