McCormick v. Vigo County High School Bldg. Corp.

• Decision Date: 24 May 1967
• Docket Number: No. 31153,31153
• Citation: 226 N.E.2d 328,248 Ind. 263,10 Ind.Dec. 477
• Parties: Joseph McCORMICK, Appellant, v. VIGO COUNTY HIGH SCHOOL BUILDING CORPORATION, Appellee.
• Court: Indiana Supreme Court

Page 328

226 N.E.2d 328

248 Ind. 263

Joseph McCORMICK, Appellant, v. VIGO COUNTY HIGH SCHOOL BUILDING CORPORATION, Appellee.

No. 31153.

Supreme Court of Indiana.

May 24, 1967.

George N. Craig, Brazil, for appellant.

Thomas M. Patrick, Dix, Dix, Patrick, Ratcliffe & Adamson, Terre Haute, for appellee.

ARTERBURN, Judge.

This is an appeal from a final judgment denying an injunction against the sale of bonds to build two high schools in Vigo County, Indiana. The appellee has filed a motion to dismiss the appeal on the ground that it was filed too late under Ch. 357 of the Acts of 1967, while on the other hand the appellant has filed a motion to remand this appeal to the Appellate Court where it was originally filed, and was by that Court transferred to this Court under the same Act of the 1967 General Assembly. Since both motions concern the same Act, we shall consider both motions together and address our comments to that Act.

Chapter 357 of the Acts of 1967 purports to shorten the time for appeal and expedite the proceedings in what are known as 'public lawsuits' involving construction and financing of various public improvements such as school buildings, etc. The heart of the Act appears to us to be that portion providing that the trial court may require any person bringing an action for an injunction to stop a bond issue or construction to give bond to pay damages for costs in event the plaintiff is not successful. Another section provides that no lawsuit shall be brought more than ten days after the first publication for the sale of bonds, and states further that after such an action is commenced, no other person may bring such a lawsuit. The appellee contends that this is a vicious provision of legislation 'obviously designed so that the proponents of the expenditures may control both ends of the lawsuit by the simple device of having a dummy file a suit on some inconsequential point. Once that small hurdle is crossed, the entire project would be home free and immune from further question.'

We stated in State ex rel. Board of Sanitary Commissioners, etc. v. Superior Court of Vigo County No. Two (1966), Ind., 220 N.E.2d 336, that we are fully conscious of the difficulties of public financing and obstructive tactics which are sometimes employed by use of taxpayers' suits filed a few days before a date for a bond sale is fixed. But as we stated there also, these are matters of legislative policy and not within our province to review.

Placing aside the question of the merits of the legislation, there are, however, certain procedural details stated in the Act which we are compelled to consider. The 1967 Act provides in Section 6 thereof that the time for taking appeals from final judgments in 'public lawsuits' shall have 'the same time limits as appeals from interlocutory orders' thus reducing the time to 30 days.

The appellant contends that the legislature has infringed upon the rule-making power of this Court in attempting to change Rule 2--2, which provides that an appeal from a final judgment may be taken 'within ninety (90) days from the date of the judgment or the ruling on the motion for a new trial (whichever is later), unless the statute under which the appeal or review is taken fixes a shorter time.'

In order to remove any apparent conflict between the rule-making power of the Supreme Court in the judicial branch of the government, the legislature enacted Ch. 91 of the Acts of 1937, which provided this Court should have the exclusive rulemaking power and further stated: 'thereafter all laws in conflict therewith shall be of no further force or effect.'

As part of its inherent judicial powers under the Constitution, this Court must exercise control of the rules of procedure and be the final arbiter in case any conflict arises as a result of legislation. Smith v. State (1939), 215 Ind. 276, 19 N.E.2d 549.

A question of statutory conflict with the Rule 2--2 providing a 90 day period for an appeal arose in the case of Browne v. Blood (1964), 245 Ind. 447, 196 N.E.2d 745, 199 N.E.2d 712. There the legislature passed a law providing for procedure in the construction of a levee and fixed the time for appeal therein by statute at 30 days. We held that where there is a conflict between procedure fixed by a statute and a rule by the Supreme Court, the Supreme Court rule would prevail. However, since our Rule 2--2 provides an exception to the 90 day period within which an appeal might be filed from a final judgment when a statute fixes a lesser period, we held no conflict existed and the 30 day statutory limitation was held valid. The solution in the case before us would be simple were the facts the same, but there are some impportant differences here.

In this case the judgment from which the appeal is being taken was rendered on January 17, 1967. The Act of 1967, under which the appellee seeks to restrict the time for appeal, did not become effective until later, namely, on March 11, 1967. In our opinion, this Act should not be interpreted so as to make it retroactive and applicable to judgments rendered prior to the effective date of the Act. Although Sec. 6 of the Act is valid as to future appeals, it is not applicable to those cases in which appeals were in the process of being taken on judgments prior to the effective date of the Act. To do so would cut off arbitrarily the rights of those who had previously obtained a judgment and were perfecting appeals. The transcript in this case was filed within the 90 day period following the judgment, namely on April 17, 1967. This was within the time fixed by Rule 2--2, which was applicable at the time the judgment was rendered and is within the time allowable for filing an appeal under our rules.

It is further urged that if Sec. 6 is not applicable to appeals from prior judgments, then certainly Section 9(a) of the Act of 1967 is operative. This section reads as follows:

'(a) Where a judgment has been entered in any public lawsuit in the trial court prior to the effective date of this Act the time for appeal provided therein shall run from the effective date of the Act or from the time permitted prior to this Act, whichever is sooner.' (Our italics)

It will be noted that this provision cuts down arbitrarily the time to appeal in pending litigation. It is expressly retroactive in operation. This is particularly vicious in view of the fact that the Act had an emergency clause, which made it effective on ...