Pittsburg v. Hays

• Citation: 45 N.E. 675,17 Ind.App. 261
• Court: Court of Appeals of Indiana
• Decision Date: 30 December 1896
• Parties: PITTSBURG, C., C. & ST. L. RY. CO. v. HAYS et al.

17 Ind.App. 261

45 N.E. 675

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

v.HAYS et al.

Appellate Court of Indiana.

Dec. 30, 1896.

On petition for rehearing. Overruled.

For decision on appeal, see 44 N. E. 375.

LOTZ, C. J.

The appellant, in its petition for a rehearing, earnestly insists that the statute authorizing the assessment of its right of way is unconstitutional; that for this reason this court had no jurisdiction, and that the cause should have been transferred to the supreme court, as directed by the statute. It is true that on the former hearing appellant's counsel asked that the cause be transferred to the supreme court, with the suggestion that the case of Railroad Co. v. Hanna, 68 Ind. 562, be overruled; but we did not understand that the transfer was asked for on the ground that the statute was unconstitutional. It will not be seriously contended that a statute which places or imposes the costs of the improvement of a street on the abutting property is unconstitutional. If we understood appellant's contention, it was that its right of way could not be benefited by the improvement, and that to charge the costs thereof upon the right of way would be taking property without due process of law. This contention goes to the construction and application of the statute, not to its constitutionality. This court has the right to construe and apply the constitution. It is only when the validity of a statute is involved, that jurisdiction is denied it. In our former opinion we held that the right of way of a railway company may be benefited by a street improvement. We know of no good reason for changing our holding in this respect. If the appellant's property was benefited by the improvement, then it was properly assessed. If it was not benefited, then it should not have been assessed. The contention about benefits or no benefits does not involve the constitutionality of the statute. It is also true, as appellant quotes, that in our former opinion, in stating the contention of counsel, we used the expression that without a benefit to the abutting property there is no constitutional warrant to seek payment elsewhere, for it would be taking property without compensation. This expression does not imply that the constitutionality of the statute was involved. It was used in connection with the contention that no personal judgment could be rendered. It is the process or method of enforcing payment by the court that is questioned; not the constitutionality of the statute.

It is also insisted that this court has no jurisdiction, because the validity of an ordinance of a municipal corporation is necessarily involved in the controversy. On the former hearing the appellant did not question the jurisdiction of this court on this ground. It is true that the validity of the ordinance was questioned, but the objections went to matters of form, and to irregularities in the proceedings, rather than to matters of substance. By section 6562a, Horner's St., it is provided that this court “shall not have jurisdiction in any case where the constitutionality of a statute federal or state, or the validity of an ordinance of municipal corporations is in question and such question is duly presented.” The manifest purpose of the statute is to reserve certain grave and important questions to the determination of the supreme court. If an ordinance of a municipal corporation is questioned because it is unconstitutional, or in conflict with the statutes, or is unreasonable, these are questions which concern the public, and it was the legislative...