Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Peck
| Decision Date | 01 July 1909 |
| Docket Number | 21,407 |
| Parties | Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Peck |
| Court | Indiana Supreme Court |
From Cass Circuit Court; Joseph M. Rabb, Special Judge.
Action by Charles M. Peck against the Pittsburgh, Cincinnati Chicago and St. Louis Railway Company. From a judgment on a verdict for $ 4,000, defendant appeals. Retransferred to the Appellate Court.
Retransferred to the Appellate Court.
G. E Ross, for appellant.
Kistler & Kistler, for appellee.
OPINION
This action was prosecuted by appellee in the Cass Circuit Court to recover for personal injuries sustained on account of the negligence of appellant railway company. From a judgment awarding appellee the sum of $ 4,000, appellant, through its counsel, prayed and took an appeal to the Appellate Court, and the cause was docketed as an appeal pending in such court. Under the assignment of errors, that each paragraph of the complaint was insufficient in facts, appellant's counsel sought to raise the question that section one of the employers' liability act (Acts 1893, p. 294, § 8017 Burns 1908), upon which section it is claimed the action is founded, is unconstitutional, for the alleged reason that it violates the 14th amendment of the Constitution of the United States, because it denies to appellant the equal protection of the law. Thereupon appellant, through its same counsel who had appealed to the Appellate Court, moved that the latter court transfer the appeal to the Supreme Court, for the reason that the Appellate Court had no jurisdiction to decide the constitutional validity of § 8017, supra. This motion the Appellate Court sustained, and transferred this appeal to the Supreme Court, and it was thereupon docketed by the clerk as a cause pending therein. On March 1, 1909, appellee moved that the Supreme Court remand and transfer this cause to the Appellate Court, on the ground that it had been decided by the Supreme Court in Pittsburgh, etc., R. Co. v. Rogers (1907), 168 Ind. 483, 81 N.E. 212, that the constitutional validity of § 8017, supra, had been settled, and that the jurisdiction over the appeal was therefore lodged in the Appellate Court, as the judgment below was for $ 4,000. On March 9, after having fully considered the question of jurisdiction over this appeal, the Supreme Court, on the authority of Pittsburgh, etc., R. Co. v. Rogers, supra, again reaffirmed that case, and held that the constitutional validity of the employers' liability act, as sought to be presented in the case at bar, had been fully determined and finally settled, and therefore the jurisdiction over the appeal was not in the Supreme Court, but was, under the law, lodged in the Appellate Court, and thereupon ordered and adjudged that this appeal be transferred to the latter court. See Pittsburgh, etc., R. Co. v. Peck (1909), ante, 19.
In the case of Pittsburgh, etc., R. Co. v. Rogers, supra, it appears that in five cases therein cited the employers' liability act has been upheld as not being antagonistic either to the Constitution of Indiana or to the 14th amendment of the Constitution of the United States. It was further shown in the case last cited that appellant herein was also the appellant in each of the four appeals therein cited, in which it unsuccessfully assailed the constitutional validity of the employers' liability act. In Pittsburgh, etc., R. Co. v. Ross (1907), 169 Ind. 3, 80 N.E. 845, which is cited in Pittsburgh, etc., R. Co. v. Rogers, supra, the Supreme Court said:
In view of the decisions of this court, as well as the decisions of the Supreme Court of the United States, certainly we were justified in the case of Pittsburgh, etc., R. Co. v. Rogers, supra, in affirming and holding, as we did, that the constitutionality of the act in question "must be regarded as settled," and would not be further considered in that case, and, there being no constitutional question to be determined, the jurisdiction in that appeal was in the Appellate Court, and a transfer to the latter court was accordingly ordered. In fact, it may be said that the constitutional questions asserted to be involved in this case appear to have been recognized as settled by appellant's counsel, by his taking this appeal to the Appellate Court. Otherwise he would have prosecuted an appeal in the first instance to the Supreme Court.
Upon the transfer to the Appellate Court of the appeal of Pittsburgh, etc., R. Co. v. Rogers, supra, that court considered and decided the cause upon its merits. In the course of the opinion the court, speaking through Rabb, J., said: Pittsburgh, etc., R. Co. v. Rogers (1910), 45 Ind.App. 230, 87 N.E. 28.
In Griffee v. Town of Summitville (1894), 10 Ind.App. 332, 37 N.E. 280, and Wagner v. Carskadon (1902), 28 Ind.App. 573, 60 N.E. 731, the Appellate Court held that the transfer of a cause by order of the Supreme Court necessarily determined the question of jurisdiction. In Van Camp, etc., Iron Co. v. O'Brien (1902), 28 Ind.App. 152, 62 N.E. 464, the appellant insisted that the act of 1899, which placed the burden of proving contributory negligence, in a personal injury case, upon the defendant, was unconstitutional. The Appellate Court, in that case, in an opinion by Comstock, J., in referring to the constitutional question there raised, said: In addition to these cases, the records in the office of the Clerk of the Supreme and Appellate Courts disclose six or seven other cases, each of which was originally appealed to the Appellate Court, and by it transferred to the Supreme Court, and by the latter court retransferred to the Appellate Court and therein decided. The decisions of the Appellate Court, to which we have referred, certainly serve to show that the latter has uniformly, in the past, regarded and held that an order of the Supreme Court transferring an appeal to the Appellate Court, was, in effect, final and conclusive upon the latter court, at least until such order was set aside by the Supreme Court.
Certainly the constitutional validity of a statute, which, over substantially the same objections, has been affirmed and reaffirmed by the Supreme Court of this State, and well affirmed by the Supreme Court of the United States, should be regarded as put at rest; and the validity of such statute should no longer be regarded as a debatable question, or one material to the decision of a case wherein it is involved. A party to an appeal will not be permitted to masquerade under a constitutional question which has been well settled, and is no longer a fairly debatable proposition, in order to bring a case to the Supreme Court which, aside from such question properly belongs in the Appellate Court. Notwithstanding, however, the decisions of the Supreme Court, as well as those of the Appellate Court, the latter court in Pittsburgh, etc., R. Co. v. Peck (1909), 44 Ind.App. 62, 88 N.E. 627, held that the Supreme Court erred in ordering the transfer of this appeal to the Appellate Court, and in deciding that under the law jurisdiction thereover was not in the Supreme Court, but was lodged in the Appellate Court, and for the reasons stated in its opinion, the Appellate Court ordered that this appeal be again transferred to the Supreme Court. This latter order of transfer was made notwithstanding the fact that so far as the Appellate Court was concerned the order of the ]Supreme Court transferring the appeal to the Appellate Court was final and conclusive upon the question of jurisdiction. Upon the latter question the order and decision of the Supreme Court in making the...
To continue reading
Request your trial