Evansville And Terre Haute Railroad Co. v. City of Terre Haute

• Decision Date: 02 June 1903
• Docket Number: 19,875
• Citation: 67 N.E. 686,161 Ind. 26
• Parties: Evansville and Terre Haute Railroad Company et al. v. City of Terre Haute
• Court: Indiana Supreme Court

67 N.E. 686

161 Ind. 26

Evansville and Terre Haute Railroad Company et al. v. City of Terre Haute

No. 19,875

Supreme Court of Indiana

June 2, 1903

From Parke Circuit Court; A. F. White, Judge.

Appeal by the Evansville & Terre Haute Railroad Company and the Farmers Loan & Trust Company from a judgment of the circuit court in a proceeding by the city of Terre Haute to condemn and appropriate lands for the opening of a street.

Appeal dismissed.

J. E Iglehart, Edwin Taylor, S. B. Davis, J. E. Lamb, J. T Beasley, S.D. Puett, J. S. McFaddin and F. B. Posey, for appellants.

Johnston & White, P. M. Foley, J. G. McNutt and F. A. McNutt, for appellee.

OPINION

Jordan, J.

This is an appeal from a judgment of the Parke Circuit Court rendered in favor of appellant railroad company against appellee for damages arising out of a certain proceeding to condemn and appropriate lands for the opening and extension of a street in the city of Terre Haute. Constitutional questions are involved; hence the appeal has been taken direct to this court.

It appears that in the year 1895 proceedings were instituted in the common council of the said city to open and extend Ohio street of said city over lands belonging to the railroad company. The city at that time, and until the first day of July, 1899, was operating under and governed by the general laws of this State pertaining to the organization and government of cities. After the commencement of the proceeding it seems that the usual steps were taken therein in conformity with the statute authorizing the same, and the matter was finally referred to the city commissioners to assess benefits and damages. Said commissioners made their first report to the common council in the matter on January 21, 1896, and in their report named appellant railroad company as a landowner whose lands were to be condemned and appropriated, and also mentioned the names of numerous persons who would be benefited by the extension of the street in controversy. Thereupon notice was given to all concerned that the city commissioners would convene on March 10, 1896 for the purpose of assessing damages and benefits. At this stage in the proceeding it appears that the railroad company interposed and secured a temporary injunction against the city from taking further action in the matter, from which judgment the city appealed to this court, and its right and power to extend the public street across the lands of the railroad company was in that appeal expressly affirmed, and the judgment of the lower court was reversed. See City of Terre Haute v. Evansville, etc., R. Co., 149 Ind. 174, 46 N.E. 77. After the reversal of the temporary injunction by this court, the hearing of the matter before the city commissioners was delayed or postponed for various reasons, and their final report was not submitted to the common council until November 1, 1898. This report discloses that the city commissioners awarded to appellant, as damages for the appropriation of lands, $ 21,500, and benefits were assessed against numerous property owners. The report was accepted by the common council, and it decided to appropriate the real estate of appellant for the improvement in question. From this decision of the common council appellant appealed, under § 3180 R. S. 1881, to the Vigo Circuit Court. Subsequently the cause was venued to the Parke Circuit Court, and was docketed therein on January 3, 1899. On November 13, 1901, the trial of the cause was commenced before a jury, and on the 30th day of the latter month the jury returned a verdict in favor of appellant railroad company, assessing damages at $ 60,000. On February 3, 1902, over separate motions for a new trial made by appellant and by the Farmers Loan & Trust Company, a codefendant therein, the court rendered judgment in favor of appellant against appellee for the amount awarded by the jury, and that the said Farmers Loan & Trust Company take nothing on its claim for damages. On April 15, 1902, a transcript of the proceedings below, together with the assignment of errors, was filed in the office of the clerk of this court.

At the very threshold we are confronted with a question of jurisdiction by reason of the contention of appellee that no appeal is permitted from the judgment of the lower court, and counsel for appellee move that the appeal or appeals of appellants be dismissed. This is a question of the highest import, and necessarily must be first decided before we attempt to review any of the questions presented upon their merits, for if the cause is not appealable we have no authority to proceed in the matter, but must dismiss the appeal.

Appellee's counsel insist that by virtue of the provisions of § 83 of appellee's new charter, which went into full force and effect prior to the trial of this action in the lower court, the right of appeal is denied. Counsel for appellant, in opposing this contention, argue that inasmuch as this proceeding was originally instituted under the general statutes of the State pertaining to the organization and government of cities, and prior to the enactment of the new charter in question, an appeal from the judgment of the circuit court in a condemnation proceeding like the one at bar might be taken to the Supreme Court under § 644 Burns 1901, § 632 Horner 1901, being § 628 of the civil code: Therefore it is insisted that the provisions of § 83 of the act in controversy must be held to apply alone to cases commenced after the taking effect of that statute, and can not be held to deal with or control the right of appeal in the case at bar. Section 644, supra, provides: "Appeals may be taken from the circuit courts and superior courts to the Supreme Court, by either party, from all final judgments," etc.

The further argument is advanced by appellants' counsel that the charter act of 1899 is special legislation, and therefore "unconstitutional and void." It is conceded, however, that this court has held similar acts of the legislature valid, although they were expressly intended to apply to a single city, upon the grounds that such laws could, under their terms, be said to be general and not special. The question of the right of appeal herein involved requires an examination of several sections of the act in controversy, which was approved March 3, 1899, and is entitled "An act concerning the incorporation and government of cities having more than 23,000 and less than 35,000 population, according to the last preceding United States census," etc. Acts 1899, p. 270. This act contains an emergency clause, but under its express terms was not to become operative until July 1, 1899. It is recognized and known as the charter or governing law of the city of Terre Haute. Heinl v. City of Terre Haute, post, 44. By the first section thereof it is provided: "Any city falling within the scope of this act shall be, and continue to be the same legal corporation as heretofore, subject to the same liabilities heretofore incurred, and possessing the same rights which have heretofore accrued. All by-laws, ordinances and regulations not inconsistent with this act shall remain and continue in force until altered or repealed by the common council in conformity with the provisions of this act, but all by-laws, ordinances and regulations inconsistent with this act are hereby abolished on and after the taking effect of this act." Section 3 of the act declares that "On and after the 1st day of July, 1899, the common council, mayor, city clerk and all other city officers and employes shall possess the powers conferred by this act, and no others. * * * Provided, however, * * * in case such city, prior to the taking effect of this act, shall have commenced, by its proper officer, any proceedings or undertaking of a public nature, which was lawfully commenced or undertaken, the same shall not be interrupted by the passage of this act, but it shall be taken up and carried forward by the proper officer or department as prescribed by this act." Section 71 provides that the city attorney shall be the head of the department of law, and defines his duties, among which it declares that "He shall conduct all legal proceedings authorized by this act, and all appeals of every nature whatsoever in which said city or the public shall have an interest." Section 148 declares that "All laws and parts of laws in conflict with any of the provisions of this act are hereby repealed on and after the 1st day of July, 1899, in so far as they relate to cities of the class referred to in this act and are in conflict with its provisions."

In the appeal of Heinl v. City of Terre Haute, supra, the provisions of this same statute were to an extent involved. In that case, in respect to the operation and effect of the act, this court said: "Upon the taking effect of the act of 1899, the proceedings then, under the circumstances, fell within the provisions of § 3 of this act, and the city was expressly authorized thereby through its proper officers, if it desired, to take up and carry them forward from the stage or point to which they had already been advanced under former laws before the latter act became operative."

Under the provisions of this statute a board of public works is created, and the latter, instead of the common council, is given jurisdiction in condemnation proceedings of property in...