Evansville & T. H. R. Co. v. City of Terre Haute

• Decision Date: 02 June 1903
• Citation: 67 N.E. 686,161 Ind. 26
• Court: Indiana Supreme Court
• Parties: EVANSVILLE & T. H. R. CO. et al. v. CITY OF TERRE HAUTE.

161 Ind. 26

67 N.E. 686

EVANSVILLE & T. H. R. CO. et al.

v.CITY OF TERRE HAUTE.

Supreme Court of Indiana.

June 2, 1903.

Appeal from Circuit Court, Parke County; A. F. White, Judge.

Proceedings to open and extend Ohio street in the city of Terre Haute. From an award by the city commissioners, the Evansville & Terre Haute Railroad Company and the Farmers' Loan & Trust Company appealed to the circuit court, wherein judgment was rendered against the trust company and for the railroad company, and now defendant railroad company prosecutes a further appeal. Dismissed.Jno. E. Iglehart, Edwin Taylor, and Puett & McFaddin, for appellant. Johnson & White, P. N. Foley, and McNutt & McNutt, for appellee.

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 1st 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 the person 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. R. Co., 149 Ind. 174, 46 N. E. 77, 37 L. R. A. 189. 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 section 3180, Rev. St. 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 loan and 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 section 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 section 644, Burns' Rev. St. (section 632, Horner's Rev. St.), being section 628 of the Civil Code. Therefore it is insisted that the provisions of section 83 of the act in controversy must be held to apply alone to cases commenced after the taking effect of that statute, and cannot be held to deal with or control the right of appeal in the case at bar. Section 644, supra, of the Civil Code provides that “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 appellant's 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 twenty-three thousand and less than thirty-five thousand population, according to the last preceding United States Census,” etc. See Acts 1899, p. 270, c. 152. 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 (at last term) 66 N. E. 450. 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 (page 27i) declares that “on and after the first day of July, 1899, the common council, mayor, city clerk, and all other city officers and employés 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 (page 304) 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 (page 341) 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 first day of July, 1899, in so far as they relate to cities of the class referrred to in this act, and are in conflict with its provisions.”

In the appeal of Heinl v. The 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, ...