Pittsburgh, Cincinnati, Chicago And St. Louis Railway Co. v. Hays

• Decision Date: 30 December 1896
• Docket Number: 1,762
• Parties: PITTSBURGH, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. HAYS ET AL
• Court: Indiana Appellate Court

45 N.E. 675

17 Ind.App. 261

PITTSBURGH, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. HAYS ET AL

No. 1,762

Court of Appeals of Indiana

December 30, 1896

17 Ind.App. 261. At 268.

Original Opinion of June 11, 1896, Reported at: 17 Ind.App. 261.

Petition overruled.

LOTZ C. J. BLACK, J.

OPINION

ON PETITION FOR REHEARING.

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 Peru, etc., R. R. 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 R. S. 1896, it is provided that this court "shall not have jurisdiction of any case where the constitutionality of a statute, federal or state, or the validity of an ordinance of a municipal corporation 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 intent to reserve them for the determination of the Supreme Court. But an objection to an ordinance which goes only to matters of form or to irregularities in the proceedings of the municipal authorities is not a question of that grave character and dignity that affects the public, and may properly be passed upon by this court. Accordingly, this court has on former occasions exercised this power, and determined the validity of ordinances when so assailed. City of Hammond v. New York, etc., R. W. Co., 5 Ind.App. 526, 31 N.E. 817; Dugger v. Hicks, 11 Ind.App. 374; New Albany, etc., Coke Co. v. Crumbo, 10 Ind.App. 360, 37 N.E. 1062.

It is lastly contended that there is nothing in the complaint, proceedings of the town board, or the findings of the court to show that the appellant's right of way, sought to be made liable, is within the corporate limits of the town of Dunkirk, and that, therefore, there was no authority to assess it with the costs of construction.

The declaratory resolution and the notice thereof, and the notice to contractors and the contract itself, each states that the streets and sidewalks to be improved were in the town of Dunkirk, Indiana.

It is true that neither the ordinance nor the judgment, in direct terms states that the improvement was within the corporate limits, but it does appear that the appellant's tract or parcel of land abutted upon Railroad street. Originally, the word street meant a paved way or road. All streets are highways, but not all highways are streets. The statutes of this State make a clear distinction between common roads or highways and the streets of cities and towns. Debolt v. Carter, 31 Ind. 355, 369; State v. Moriarty, 74 Ind. 103. "A street is a road or public way in a city, town or village." Elliott, Roads and Streets, p. 12.

The use of the word, street, indicates that it was not an ordinary public highway which was being improved, but a highway within the town.

The ordinance was passed by the town board in the exercise of the statutory authority to make local improvements by special assessments on abutting property. A municipal ordinance is a local law, and the same rules govern in its construction as apply to general statutes. The presumption is in favor of the regularity and validity of official acts. "Prima facie, every statute is confined in its operation to the persons, property, rights, or contracts, which are within the territorial jurisdiction of the legislature which enacted it. The presumption is always against any intention to attempt giving to the act an extarritorial operation and effect." Black Interp. of Laws, p. 91; Endlich Interp. of Statutes, section 171; Stanton v. City of Chicago, 154 Ill. 23, 39 N.E. 987. The case last cited is very similar to the case at bar on this point, and is directly opposed to appellant's contention. See also Stockwell v. State, ex rel., 101 Ind. 1.

The petition is overruled.

ON MOTION TO VACATE JUDGMENT.

BLACK, J.--An appeal was brought to this court by the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, from a judgment rendered against it in the Jay Circuit Court in favor of John Hays and John Reese. The transcript was filed in the office of the clerk of this court, and an assignment of errors was entered thereon, on the 1st of June, 1895. On the 11th of June, 1896, a judgment of affirmance was rendered, the opinion of the court being delivered by Lotz, J. At the same term of this court, on the 18th day of July, 1896, the appellant in said cause filed its petition for a rehearing, which was carried over into the present term, and, on the 30th of December, 1896, was overruled, an opinion thereon being rendered per Lotz, J.

On the 7th of January, 1897, the attorney for the appellant in that cause filed in this court his petition entitled as in said cause. Omitting the caption and the signature of the attorney, said petition is as follows: "The appellant asks the court to withdraw its opinions heretofore rendered and filed in the above entitled cause, and transfer the same to the Supreme Court, for the reason that the constitutionality of the act under which the appellees recovered the judgment appealed from was duly presented in said cause and argued before this court; for which reason this court had no jurisdiction to decide said cause, and it was its duty to transfer said cause to the Supreme Court of Indiana, which it has neglected to do; and that for want of jurisdiction its decision in said cause is void. This application is made in order, if possible, to obviate the necessity of a writ of mandate from the Supreme Court requiring this court to transfer said cause to that court. All of which is respectfully submitted."

With this petition the attorney who signed it filed a paper endorsed as a brief, in which, in support of the motion, "the court is referred to the briefs on file in this cause, and particularly to the motion for a rehearing and the brief in support thereof." This brief is upon a single page. No argument is offered and no authorities are mentioned.

It is provided by statute, section 674, Burns' R. S. 1894 (662, Horner's R. S. 1896), that at any time within sixty days after any cause is determined in the Supreme Court, either party may file a petition for a rehearing; if not so filed, the decision and instructions of the Supreme Court shall be certified to the court below, unless otherwise ordered by the court.

It is also provided, section 1351, Burns' R. S. 1894 (6575, Horner's R. S. 1896), that a rehearing may be prayed in any cause in this, the Appellate Court, within the time allowed therefor by the Supreme Court, and may be granted for sufficient cause, and the judgment of the Appellate Court shall not be certified to the court below until after the expiration of the time allowed for the petition for a rehearing, unless such rehearing be waived in writing.

A petition for a rehearing must be filed within sixty days after the cause is determined. When that period has expired after judgment of affirmance or...