Pittsburg, C., C. & St. L. Ry. Co. v. Peck

• Decision Date: 04 June 1909
• Docket Number: No. 6,331.,6,331.
• Citation: 88 N.E. 627,44 Ind.App. 62
• Court: Indiana Appellate Court
• Parties: PITTSBURG, C., C. & ST. L. RY. CO. v. PECK.

44 Ind.App. 62

88 N.E. 627

PITTSBURG, C., C. & ST. L. RY. CO.

v.PECK.

No. 6,331.

Appellate Court of Indiana.

June 4, 1909.

Appeal from Circuit Court, Cass County; Joseph M. Rabb, Special Judge.

Action by Charles M. Peck against the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. From a judgment for plaintiff, defendant appealed to the Appellate Court which transferred the cause to the Supreme Court (87 N. E. 153), and the Supreme Court (87 N. E. 644) retransferred it to the Appellate Court. Cause retransferred to the Supreme Court.

G. E. Ross, for appellant. Kistler & Kistler, for appellee.

PER CURIAM.

This cause was tried by a jury upon the issues presented by the fourth and fifth paragraphs of the complaint, answered by a general denial. From a judgment in favor of appellee appellant appealed to this court, assigning as error the action of the court in overruling its demurrer to each the fourth and fifth paragraphs of the complaint, and in overruling its motion for a new trial. This is the second appeal from a judgment in favor of appellee. Pittsburg, etc., Ry. Co. v. Peck, 165 Ind. 537, 76 N. E. 163. On the former appeal the Supreme Court held the paragraphs of complaint upon which the cause was tried insufficient for want of facts to state a cause of action. On that appeal no constitutional question was decided. Upon the return of the cause to the trial court the issues were reformed, and the cause was retried, with the result heretofore stated. The record and briefs of counsel to the present appeal were before this court, and on February 19, 1909, this court in effect held that this action was founded on section 1 of the employers' liability act (Acts 1893, p. 294, c. 130, section 8017, Burns' Ann. St. 1908); and, the constitutionality of that section being certainly questioned, and such question being duly presented, this case, under section 9, c. 247, p. 566, Acts 1901 (section 1392, Burns' Ann. St. 1908), was appealable directly to the Supreme Court, and the cause was therefore transferred to that court for decision as directed by section 1429, Burns' Ann. St. 1908. Pittsburg, etc., Ry. Co. v. Peck (Ind. App.) 87 N. E. 153. On March 9, 1909, the Supreme Court rendered an opinion and ordered the cause transferred to this court. That opinion is as follows: “The constitutional validity of section 8017, Burns' Ann. St. 1908 (the same being section 1 of the employers' liability act), has been firmly settled by the Supreme Court of this state, and also by the Supreme Court of the United States. The assertion of appellant's counsel that this section is unconstitutional will not serve to lodge the jurisdiction over this appeal in the Supreme Court, which otherwise would be in the Appellate Court. It is therefore ordered that this cause be transferred to the Appellate Court. See Pittsburg, etc., Ry. Co. v. Rogers, 168 Ind. 483, 81 N. E. 212.Pittsburg, etc., Ry. Co. v. Peck (Ind.) 87 N. E. 644. Upon an examination of the record and briefs of the parties to this appeal, it will be seen that appellee's cause of action was based upon the alleged negligence of one of appellant's engineers in charge of one of its locomotive engines engaged in moving a cut of cars. The alleged negligence consisted in the failure of said engineer to obey a signal given by the appellee to stop the cars, in backing the cars without having first received a signal so to do, in neglecting to obey a signal which he saw, in violating the rules of the company, and in violating a custom long established. Appellee contends, and this contention seems to be borne out by the pleadings, that this action was predicated upon the fourth subdivision of the employers' liability act. Acts 1893, p. 295, c. 130; section 8017, Burns' Ann. St. 1908. Under the assignment of error questioning the sufficiency of each paragraph of the complaint for want of facts, the point is made that section 8017, Burns' Ann. St. 1908, “is unconstitutional and void because it is in conflict with the fourteenth amendment to the Constitution of the United States, in that it denies to appellant the equal protection of the law.”

In view of the action of the Supreme Court and this court on the subject of jurisdiction of this appeal, the first question which naturally arises relates to the jurisdiction of this court to further consider the questions involved in this appeal. It will not be denied that the authority of the Supreme Court and this court to consider cases on appeal is regulated and defined by statute, and, unless a case reaches either court in the manner provided by law, such court will not acquire jurisdiction of the cause. It is also true that neither the Supreme Court nor the Appellate Court has any power to confer jurisdiction upon the other for any purpose. The power to regulate the jurisdiction of the several courts of this state is by our Constitution (article 7) vested in the Legislature. The Appellate Court was created by an act of the Legislature (Acts 1891, p. 39, c. 37), and its jurisdiction was by that act defined. All other appellate jurisdiction remained in the Supreme Court. Section 1 of that act expressly reserved to the Supreme Court jurisdiction where “the validity of a statute of this state or the United States is involved.” This court has not at any time since its creation had jurisdiction to decide questions involving the constitutionality of any statute, federal or state. Such jurisdiction upon appeal is now, as it has been heretofore, in the Supreme Court alone. In the act above mentioned creating the Appellate Court, and purporting to define its jurisdiction, it was provided by section 25 that “in any case wherein an appeal has been taken from a lower court to the Appellate Court, and the same should have been taken to the Supreme Court, it shall be the duty of the Appellate Court, on its own motion, to cause such case to be transferred to the Supreme Court; and in any case where an appeal has been taken to the Supreme Court when it should have been to the Appellate Court, it shall be the duty of the Supreme Court, of its own motion, to cause such case to be transferred to the Appellate Court; and the action of each of said courts in making such transfers shall be final.” The Legislature in 1893 (Acts 1893, p. 29, c. 32) enlarged the jurisdiction of the Appellate Court and amended section 25, c. 37, p. 44, Acts 1891, and in the section, as amended, the portion above quoted was, in substance, repeated by the following language: “In any case wherein an appeal has been taken from a lower court to the Appellate Court, and the same should have been taken to the Supreme Court, it shall be the duty of the Appellate Court on its own motion to cause such case to be transferred to the Supreme Court; and in any case where an appeal has been taken to the Supreme Court, when it should have been to the Appellate Court, it shall be the duty of the Supreme Court of its motion, to cause such case to be transferred to the Appellate Court, and the action of such court in making such transfer shall be final.” Section 1429, Burns' Ann. St. 1908. In 1901 (Acts 1901, p. 565, c. 247), the Legislature again defined the jurisdiction of the Appellate Court, and, referring to that part of the act now especially applicable, section 9 provides that “No appealable case shall hereafter be taken directly to the Supreme Court unless it be within one of the following classes: First. Cases in which there is in question, and such question is duly presented, either the validity of a franchise, or the validity of an ordinance of a municipal corporation, or the constitutionality of a statute, state or federal, or rights guaranteed by the state (or) federal Constitution.” It is said in a number of decisions that a constitutional question will not be passed upon by the Supreme Court when it can “rest its decision upon other grounds” (White v. Sun Publishing Co., 164 Ind. 426, 73 N. E. 890), or unless necessary to a determination of the merits of the case (Cummings v. Stark, 138 Ind. 94, 34 N. E. 444;Dowell v. Talbott Paving Co., 138 Ind. 675, 38 N. E. 389). The Supreme Court for its guidance has settled upon certain rules for determining when a constitutional question is involved. In substance, these rules are that the constitutionality of a statute will be considered in question, and such question duly presented, when from the argument of counsel the court is of the opinion that the question is pertinent to the record, and that counsel sincerely believe that the statute in question is unconstitutional and material to the determination of the cause, then the court will feel in duty bound to pass upon the question. The Supreme Court has ruled that an attack upon the validity of a statute carries the appeal to that court, and that this court is without jurisdiction to even determine whether or not a constitutional question is involved. Dowell v. Talbott Paving Co., supra; Benson, Adm'r, v. Christian, 129 Ind. 535, 29 N. E. 26. When the case under consideration was briefed in this court, three cases appealed by this appellant were pending in the Supreme Court. Pittsburg, etc., R. Co. v. Lightheiser, 168 Ind. 438, 78 N. E. 1033;Pittsburg, etc., Ry. Co. v. Collins, 168 Ind. 467, 80 N. E. 415;Pittsburg, etc., Ry. Co. v. Ross, 169 Ind. 3, 80 N. E. 845. In each of these cases the same constitutional question was presented in about the same form and language as in this case. In each of the cases above referred to the question thus presented has been considered and decided by the Supreme Court adversely to appellant. As evidence of the good faith of counsel in pressing the question, it appears that he endeavored to present the same question to the Supreme Court of the United States by an appeal of all said cases to that court. In January of this year the Supreme Court of the United States dismissed all of these cases upon jurisdictional grounds.

It is apparent...