Cemetery Co. v. Warren School Tp. of Marion County

• Citation: 236 Ind. 171,139 N.E.2d 538
• Decision Date: 07 January 1957
• Docket Number: No. 29397,29397
• Parties: The CEMETERY COMPANY, Appellant, v. WARREN SCHOOL TOWNSHIP OF MARION COUNTY, Memorial Park Cemetery association, Appellees.
• Court: Indiana Supreme Court

Page 538

139 N.E.2d 538

236 Ind. 171

The CEMETERY COMPANY, Appellant, v. WARREN SCHOOL TOWNSHIP OF MARION COUNTY, Memorial Park

Cemetery association, Appellees.

No. 29397.

Supreme Court of Indiana.

Jan. 7, 1957.

Alembert W. Brayton, William B. Patrick, Indianapolis, for appellant.

Schortemeier, Eby & Wood, Indianapolis, for Memorial Park Cementery Assn.

Lafuze, Ging & Graber, Indianapolis, for Warren School Tp. of Marion County.

ARTERBURN, Judge.

Appellee, Warren School Township, filed a suit to take by eminent domain proceedings for school purposes the property already dedicated to a public use owned by the Cemetery Company, the appellant. Two main questions are raised by this appellant; (1) the right of a school corporation to take for its public use, property already dedicated to another public use; and (2) the right of the appellant to raise this issue by the filing of objections setting up such facts to the complaint.

The appellee, School Township, claims to have brought its action under the Act of 1907, ch. 87, § 1, p. 114, being § 28-2501 Burns' 1948 Replacement, which makes no provision for the filing of any objections to the condemnation proceedings. This act, limited to school corporations and bodies, merely provides that upon the filing of a petition for that purpose and after 10 days notice to the owners of the land sought to be taken, the court shall appoint three appraisers to fix the value of the real estate. Thereafter, any party to the action may except to the report of the appraisers. There is no provision for the filing of any objections prior to the appointment of appraisers, nor for any interlocutory appeal.

The appellant, nevertheless, filed objections to the petition setting out in substance that the appellant was an incorporated cemetery company exercising the power of eminent domain; that the property sought to be taken had previously been appropriated and dedicated for public cemetery purposes, and is now so used; that the taking by the appellant would completely destroy and is wholly inconsistent with the prior public use for which said land has been dedicated; and that there was other land just as suitable and as available for school use. The objections challenged the power attempted to be exercised by the appellee as well as the necessity of the taking of the particular land by the school corporation.

In the trial court the appellee, School Township, moved to dismiss the objections of appellant. The trial court accepted the appellee's contention that the 1907 statute under which the condemnation proceedings were brought does not provide for any objections to be filed other than those made to the appraiser's report, and accordingly dismissed the objections without permitting the appellant, Cemetery Company, to be heard thereon. After the dismissal fo the objections and the appointment of the appraisers by the court, the appellant took an interlocutory appeal to this court under the theory that the general Eminent Domain Act of 1905, ch. 48, p. 59, being §§ 3-1701--3-1712 Burns' 1946 Replacement, was applicable. The appellee, School Township, thereupon filed its motion to dismiss this appeal, contending that there is no right to such appeal under the Act of 1907, ch. 87, § 1, p. 114, being § 28-2501 Burns' 1948 Replacement, under which appellee alleges the original proceedings were brought.

The first point we shall consider is the construction and conflict, if any, in the Acts of 1905 and 1907.

The first two sections of the Act of 1907, ch. 87, §§ 1-2, p. 114, being §§ 28-2501--28-2502, read as follows:

'Whenever, in the opinion of the trustees of school corporations of any city or town, or of the township trustee of any township in the estate, it shall be considered necessary to purchase any real estate on which to build a schoolhouse, or for any other purpose connected therewith, such township trustee or school trustees, or a majority of them, may file a petition in the circuit court of said county, asking for the appointment of appraisers to appraise and assess the value of said real estate.'

'Upon said petition being filed, the owner or owners of said real estate, having had ten days' notice of the pendency thereof, the court shall appoint three freeholders, resident in said school corporation or said township where said real estate is situate, to appraise and assess the value thereof.'

Although the special school building condemnation Act of 1907 has no provision therein for making objections to the bringing of the proceedings in the first instance, the general condemnation Act of 1905, does give the right to make objections, and upon the overruling of exceptions and the appointment of appraisers, grants an appeal at that time.

Section 5 of the Act of 1905, being § 3-1705 Burns' 1946 Replacement, reads as follows:

'Any defendant may object to such proceedings on the ground that the court has no jurisdiction either of the subject-matter or of the person, or that the plaintiff has no right to exercise the power of eminent domain for the use sought, or for any other reason disclosed in the complaint or set up in such objections. Such objections shall be in writing, separately stated and numbered, and shall be filed not later than the first appearance of such defendant; and no pleadings other than the complaint and such statement or objections shall be allowed in such cause, except the answer provided for in section eight (§ 3-1707) of this act: Provided, That amendments to pleadings may be made upon leave of court. If any such objection shall be sustained, the plaintiff may amend his complaint or may appeal to the Supreme or Appellate Court from such decision, as and in the manner that appeals are taken from final judgments in civil actions, of which appeal all the parties shall take notice and by which they shall be bound. But if such objections are overruled, the court or judge shall appoint appraisers as provided for in this act; and from such interlocutory order overruling such objections and appointing appraisers, such defendants, or any of them, may appeal to the Supreme or Appellate Court from such decision as and in the manner that appeals are taken from final judgments in civil actions, upon filing with the clerk of such court a bond, with such penalty as the court or judge shall fix, with sufficient surety, payable to the plaintiff, conditioned for the diligent prosecution of such appeal and for the payment of the judgment and costs which may be affirmed and adjudged against the appellants, such appeal bond shall be filed within ten days after the appointment of such appraisers. All the parties shall take notice of and be bound by such appeal. The transcript shall be filed in the office of the clerk of the Supreme Court within thirty days after the filing of the appeal bond. Such appeal shall not stay proceedings in such cause.'

The Act of 1907 does not specifically repeal the Act of 1905 but is deficient in many respects with reference to the procedure to be followed in exercising the authority granted. The notice prepared by the appellee, School Township, summoned the appellant to show cause why the land sought to be appropriated should not be appropriated. In response to this notice the appellant appeared, and filed its objections. The appellee then took the position that the appellant had no right 'to show cause why the land should not be taken.' The dismissal of the objections by the court prevented the appellant from presenting the facts which it contends would show that the appellee had no right to maintain the suit.

The gist of appellee's contention is that the trial court lacked jurisdiction to consider appellant's objections. The implications of this position would seem to be at variance with normal concept of due process. If the contention is valid it would mean that the courts are prevented from adjudicating the legal right to take property merely upon the filing of a suit with certain allegations therein, without proof, and without permitting the parties thereto to make objections, questioning the authority to bring the suit. The position of the court would thereby be reduced to a mere administrative tribunal with a mandatory duty of ordering an appropriation and fixing the value of the property taken. The function of adjudicating the legal rights of the parties would be denied the courts. As long as the judiciary remains an effective part of our government it cannot be deprived of its proper role; that of determining the legal rights of the litigants. Likewise, every person is entitled to seek relief from oppressive actions, and that place in a law-abiding society is in the court room. At some place in the proceedings, and by some method the landowner is entitled to contest the legality of the condemnation proceedings, and question the authority under which the attempt is being made to take his property including the issue of whether or not it is a private or public purpose. Joint County Park Bd. v. Stegemoller, 1950, 228 Ind. 103, 88 N.E.2d 686, 89 N.E.2d 720; Foltz (Van Camp Hdw., etc.) v. City of Indianapolis, 1955, 234 Ind. 656, 130 N.E.2d 650.

The appellee, School Township, contends that the Act of 1907 does not lack due process even though it fails to provide a means or procedure for rainsing objections questioning the authority of the plaintiff to bring the proceedings in the first instance. Appellee's position is that where acts of this sort fail to contain provisions for an opportunity to object and be heard, their constitutionality may be upheld on the ground that a suit in equity will permit the landowner to raise the objections, and thus thereby save the constitutionality of the act. We have examined the authorities cited on this point. The authority is to the effect that equity will grant injunctive relief against the wrongful exercise of the power of eminent domain where no provisions are made in the enabling...