Louisville & N.R. Co. v. Lang

• Decision Date: 06 November 1914
• Citation: 160 Ky. 702,170 S.W. 2
• Parties: LOUISVILLE & N. R. CO. ET AL. v. LANG, COUNTY JUDGE.
• Court: Kentucky Court of Appeals

170 S.W. 2

160 Ky. 702

LOUISVILLE & N. R. CO. ET AL. v. LANG, COUNTY JUDGE.

Court of Appeals of Kentucky.

November 6, 1914

Appeal from Circuit Court, McCracken County.

Action by the Louisville & Nashville Railroad Company and another against James M. Lang, County Judge. From a judgment dismissing the petition, plaintiffs appeal. Affirmed.

H. L Stone and Helm Bruce, both of Louisville, Wheeler & Hughes of Paducah, Claude Waller, of Nashville, Tenn., and Bruce &amp Bullitt, of Louisville, for appellants.

Humphrey, Middleton & Humphrey, of Louisville, Berry & Grassham, of Paducah, Richards & Harris, of Louisville, and Geo. H. Fearons, of New York City, for appellee.

HOBSON C.J.

The Western Union Telegraph Company filed in the McCracken county court a condemnation suit against the Louisville & Nashville Railroad Company and the Nashville, Chattanooga & St. Louis Railway Company to condemn a right of way for a telegraph line over and along the right of way of the two railway companies, under section 4679a, Ky. St. Thereupon the two railway companies brought this action against James M. Lang, the judge of the McCracken court, to prohibit him from proceeding in the action, on the ground that the statute is unconstitutional, and that he was without jurisdiction. The circuit court dismissed the petition. The plaintiff appeals.

The constitutionality of the act is the only question to be determined on the appeal. The act was approved March 19, 1898 (Laws 1898, c. 49), and consists of 12 sections. So far as it is material to this controversy, the sum of the act is as follows:

(1) A telegraph company shall, upon making just compensation have the right to construct, maintain, and operate telegraph lines upon the right of way and structures of any railroad in this state in such manner as not to interfere with the ordinary use or traffic of such railroad.

(2) A telegraph company may through an authorized agent agree and contract with such railroad for the right of way.

(3) In case any telegraph company is unable to agree with the railroad company, it may file in the office of the clerk of the county court of any county in which any portion of such railroad is situated a petition designating the particular use, right, easement, or privilege sought to be condemned.

(4) A jury of 12 men shall be impaneled to assess the damages.

(5) Either party shall have the right to appeal from the judgment of the county court to the Court of Appeals within 30 days after the rendition of the judgment; but an appeal by the defendant shall not operate as a supersedeas, provided the telegraph company shall enter into bond as provided by the statute.

(6) No notice of the condemnation proceeding is to be given any mortgagee. Sections 141, 242, and 248 of the Constitution are as follows:

"The jurisdiction of the county court shall be uniform throughout the state, and shall be regulated by general law, and, until changed, shall be the same as now vested in the county courts of this state by law." Section 141.

"Municipal and other corporations, and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by them; which compensation shall be paid before such taking, or paid or secured, at the election of such corporation or individual, before such injury or destruction. The General Assembly shall not deprive any person of an appeal from any preliminary assessment of damages against any such corporation or individual made by commissioners or otherwise; and upon appeal from such preliminary assessment, the amount of such damages shall, in all cases, be determined by a jury, according to the course of the common law." Section 242.

"A grand jury shall consist of twelve persons, nine of whom, concurring, may find an indictment. In civil and misdemeanor cases, in courts inferior to the circuit courts, a jury shall consist of six persons. The General Assembly may provide that in any or all trials of civil actions in the circuit courts, three-fourths or more of the jurors concurring may return a verdict, which shall have the same force and effect as if rendered by the entire panel. But where a verdict is rendered by a less number than the whole jury, it shall be signed by all the jurors who agree to it." Section 248.

It will be observed that by section 242 the amount of damages shall in all cases be determined by a jury according to the course of common law. A jury consisted of 12 men at common law and a unanimous verdict was required. It will also be observed that by section 248 it is provided that in civil and misdemeanor cases in ...