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MISSISSIPPI STATE HIGHWAY COMMISSION v. NANCY L. HERBAN

FEBRUARY 10, 1988

MISSISSIPPI STATE HIGHWAY COMMISSION
v.
NANCY L. HERBAN, ET AL.



BEFORE ROY NOBLE LEE, C.J.; ROBERTSON AND ANDERSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This case presents a question of general importance regarding the authority of the circuit clerk as clerk of the so-called special court of eminent domain to receive his normal percentage fee on sums deposited with him by the condemning authority. Pursuant to our quick take law, the condemning authority may obtain immediate possession of the property by depositing with the clerk of the court eighty-five percent (85%) of the compensation and damages determined by a court appointed appraiser.

 In the case at bar, the Circuit Court of Lowndes County held that the clerk was entitled to the statutory commission on sums so deposited. The Mississippi State Highway Commission (MSHC) appeals. We affirm.

 II.

 From the record it appears that the quick take procedure

 was utilized, that a substantial sum of money was deposited with the clerk, Miss. Code Ann. 11-27-85 (Supp. 1987), and that thereafter the case was settled. The Circuit Court entered its order on December 4, 1986, dismissing the case on grounds that the case" has now been fully settled and compromised. "The order further provided that MSHC pay the clerk's commission of one-half (1/2) of one-percent (1%) of the sum deposited. Miss. Code Ann. 25-7-13 (Supp. 1987).

 MSHC brings this appeal. The Court has received a brief submitted by the Mississippi Association of Circuit Clerks as amicus curiae. In addition, the Court has invited and received briefs from T. E. Wiggins, Circuit Clerk of Lowndes County, and from the Attorney General. See Warren County v. Culkin, 497 So.2d 433, 435-36 (Miss. 1986).

 III.

 Our task is one of statutory construction. We begin with the general statute authorizing fees which may be charged by the clerk of the circuit court. Miss. Code Ann. 25-7-13 (5) (Supp. 1987) provides:

 The clerk of the circuit court may retain as his commission on all money coming into his hands, by law or order of the court, a sum to be fixed by the court not exceeding one-half of one percent (1/2 of 1%) on all such sums.

 By statute, jurisdiction of eminent domain proceedings is vested in the county court in each county having such a court; otherwise, in the circuit courts. Miss. Code Ann. 11-27-3 (1972). In either case, the circuit clerk of the county serves as clerk of the so-called special court of eminent domain.

 Our quick take law contemplates that pending eminent domain litigation, the court will appoint a disinterested appraiser who within ten days will report his opinion regarding the fair market value of the property to be condemned and the damages, if any, to the remainder. Miss. Code Ann. 11-27-83 (Supp. 1987). The MSHC then has the right to immediate possession of the property if it

 deposit[s] not less than eighty-five percent (85%) of the amount of the compensation and damages as determined by the appraiser ...


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