Chicago, Kansas & Western Railroad v. Abilene Town-Site Co. , 42 Kan. 104 ( 1889 )

The opinion of the court was delivered by

Valentine, J.:

This case was decided by this court on March 9, 1889, and the judgment of the court below was affirmed. Afterward a motion was made by the plaintiff in error to set aside the judgment of affirmance, and for a rehearing upon two grounds: First, that the judgment of affirmance was erroneous; and second, that the plaintiff in error did not have a hearing before the supreme court. The first question involves only the following question: When the owner of land through which a railroad company by condemnation proceedings procures a right-of-way, appeals from the award of the commissioners, which gives to him as damages the sum of $1,480, and the appeal bond executed in the case is in the amount of $500 only, must the appeal itself when attacked by a motion to quash, be treated as utterly void for the reason only that the appeal bond is not in double the amount of the award, or may it be treated as sufficiently valid to authorize a trial upon the merits, where no possible harm can result to the appellee by reason of the appeal bond being in a less sum than double the amount of the award ? The counsel for the plaintiff in error, in their original brief filed in this court, stated among other things as follows:

“ The only error to which we desire to call the attention of the court is the ruling of the court below upon the motion to quash the appeal. This error is such as demands a reversal of the judgment. The record is insufficient to present other errors which were committed. We therefore only present to the court that which of itself demands a reversal of the judgment.”

This claim of error was the only one discussed in the original brief. After the decision of the case by this court, and upon the motion for the rehearing, a second brief was filed, which presented and discussed only this one general question along with various incidental questions. A third brief, however, was also filed, which presented the second question above mentioned.

1. Condemnation roceeding-defective appeal bond-practice. We think the decision of this court heretofore rendered upon the question of the validity of the appeal is correct, and for the reasons given in the opinion of Commissioner Simpson, heretofore filed by this court; . - . . ™rk‘ier question still remains to be considered-: Has the plaintiff in error had a rehearing before this court? The plaintiff in error filed in this court a full and complete transcript of all the proceedings had and record made in the court below; and with this transcript it filed a petition in error setting forth all the rulings of the court below of which it complains. Afterward the case was submitted to this court upon printed briefs and an oral argument as follows: One of such briefs was furnished for each judge of the court and one for each commissioner, and each brief contained eight pages, discussing the single question of the validity and invalidity of the appeal above mentioned. The oral argument, however, was made before the commission only, and not before the court. The order of submission was made by the court, and no order was made by the commission. The commission afterward reported to the members of the court, in full consultation, their views and their conclusions with reference to the case, and the members of the court approved the aforesaid views and conclusions, and ordered an opinion in the case to be prepared. Afterward Commissioner Simpson prepared the opinion, and delivered it to the judges of the court, and the judges read and approved the same; and afterward, while in session as a court, filed the same and rendered a judgment thereon affirming the judgment of the court below, which judgment of affirmance is the one now complained of. Afterward a motion for a rehearing was filed and presented to the court, upon which presentation printed briefs were filed, one for each member of the court, and each containing sixteen pages, devoted entirely to the single question of the validity of the aforesaid appeal and such incidental questions as might be connected with this main or principal question. Counsel also made a full oral argument to the court upon this main or principal question, and the questions incident thereto. The plaintiff in error also at the same time filed another brief, and made an additional oral argument upon the following question or proposition, which is stated in their brief as follows:

“Because the said plaintiff in error has not had a hearing before the supreme court, and because the hearing had before the commissioners was without force or effect; that the act creating the commission is unconstitutional and void, and this plaintiff in error has been deprived of its right to be heard before a duly-constituted and legal court.”

It would seem that the plaintiff in error has had a pretty full hearing before the supreme court. The supreme court has had the full transcript of the record from the court below, the petition in error assigning all the rulings of the court below complained of by the plaintiff in error, the original briefs of counsel for the plaintiff in error upon the merits, their second briefs upon the merits, and their oral argument made before the court upon the merits upon the motion for the rehearing. Now without reference to what was done before the commission or by the commission, it would be the duty of this court, in accordance with the universal practice of the court from its organization to the present time, and ■certainly since the creation and organization of the commission in March, 1887, to the present time, to render just such a judgment as should be rendered in the case upon the merits; More than one hundred cases have been sent to the commission for oral argument in the very same manner that this case was sent to them, and final judgments have been rendered in all such cases by this court before any oral argument was heard by the court. If upon the merits of this case the judgment of the court below ought to be affirmed, then, in accordance with the universal practice in this court, we should affirm our decisions heretofore made, and let the judgment already rendered remain. If, however, the judgment of the •court below ought to be reversed, or in any respect modified, then we should reverse or modify our own judgment so as to require the judgment of the court below to be reversed or modified accordingly. This has been the universal practice in this court from the beginning. This case has taken the ■usual course that other cases have taken since the organization •of the commission. The commission was organized in March, 1887, and from that time up to the present time this court has .assigned various cases to the commission for consideration. The commission, however, has never rendered any judgment nor made any order in any one of such cases, nor in any other ■case. All that they have ever done has been to examine the •cases sent to them, upon the records, the evidence and the briefs furnished to them, and in some cases upon oral arguments, and to make a report to the court recommending what judgment or order should in their opinion be rendered or made in the case by the court, and furnishing to the court an opinion in each case. All cases brought to this court are, when brought, filed in the court, and on the final hearing all cases are submitted to the court, and not to the commission; but the court assigns many of them to the commission for the hearing of the oral arguments, and for their preliminary examination and recommendation. With respect to oral arguments, the practice of the court has been to call the cases on the day on which they are set for hearing, and when it is ascertained which cases are to be argued orally and which not, the court makes the order for their submission to the court, and takes a portion of the briefs in each case and in all cases, but assigns a portion of the cases with a portion of the briefs in each case, for the hearing of the oral argument and for examination,'to the commission; and the court keeps a portion of such cases for the hearing of the oral arguments itself, and keeps briefs in all cases. It is always announced, at the time of the submission of the cases, which cases are to be argued orally before the commission, and which are to be argued orally before the court; and in any case where an expression is made by counsel on either side of a preference to have the case argued orally before the court, the court itself hears the oral argument. No case has ever yet been sent to the commission to be argued orally before them where any preference has been expressed by any person interested in the case that the court itself should hear the oral argument; and'it is certainly not disrespectful to the court for counsel or anyone else interested in a case to express to the court a preference for the court itself to hear the oral argument; indeed, such a thing would seem more like a compliment to the court than otherwise.

2. Parties have had a full hearing before the supreme court. In about thirty-seven of the cases which have been assigned to the commission for oral arguments, and decided by this court, motions for rehearings have been made; and on the-hearing of many of such motions, suggestions have been made that the hearing had in each particular case before the commission .was a nullity, for the reason that the legislature has no power to create a commission, but we have never yet considered such a suggestion or question as a material one in the ease. Of course, if the commission in legal contemplation is a nullity, then it is a great irregularity to send a case to such commission for oral argument; but up to this time the irregularities thus committed, if they are irregularities, have been without prejudice. In every case which has been or may be decided by this court the parties have a right under our rules to present it again upon its entire merits upon a motion for a rehearing, both upon briefs and upon oral arguments. In sending cases to the commission for oral argument, it is not because of any dislike on the part of any member of this court to hear oral arguments. Oral arguments by able counsel who have thoroughly considered their cases, are great helps to the supreme court, and enable the court to understand the cases much more readily than it could possibly do from briefs alone. As to what this court shall do in the future with respect to the commission, the members of the court have not yet agreed. Up to the time of the decision by the supreme court- of Indiana in the case of The State, ex rel., v. Noble, 21 N. E. Rep. 244, this court had but little doubt as to the validity of the law creating the commission. But suppose that such law is void, and that the commission is void, and that the hearing had before the commission is void, still the parties to this case have had a full hearing before the court itself; and it has always been believed that when parties L have had a full hearing before the court that they could not ask for anything more in that respect. It is then immaterial to them whether some other body is valid or invalid, or whether it has any power to act or not.

In the case of The State v. Coulter, 40 Kas. 673, (20 Pac. Rep. 525, 526,) this court used the following language:

“The objection that the opinion was filed by a commissioner is not well taken. The opinion was prepared by a commissioner, under the direction of the court, but was filed by the court, and not by any commissioner. Under these circumstances, the motion for a rehearing will be denied.”

The original opinion in the Coulter Case was prepared by Commissioner Clogston, and will be found reported in 40 Kas. 88; (19 Pac. Rep. 368.) The opinion on the rehearing was prepared by the Chief Justice, and was concurred in by the other Justices. It will be found reported in 40 Kas. and 20 Pac. Rep., as above stated. It is really not necessary that anything further should be said in this case than was said on the rehearing in the Coulter case; for both cases, as to oral arguments and other things, have taken in this court and before the commission precisely the same course, and in this respect the two cases are exactly parallel. The Coulter case, however, was a criminal case, while this is a civil case. Now while it is not necessary in this case to say more than was said in the Coulter case, yet, for reasons not necessary now to mention, we have chosen to do so. Many other cases have been sent by this court to the commission for oral argument; in all of which cases except a few remaining cases final judgments have been rendered by this court before any oral argument has been heard by the court, and in many of such cases motions for rehearings have afterward been presented. The rule on the hearing of such motions is to decide the cases finally on such motions. In some of such cases we reverse our former judgments, in others we modify them, and in still others we affirm them; and then, without any further argument or submission, we direct finally, where a direction is necessary, what the lower court shall do. In the most of such cases we do not file any additional opinion. In others of such cases, however, we do file an additional opinion. Among the cases of this kind in which additional opinions have been filed, are the following: C. B. U. P. Rld. Co. v. Andrews, 37 Kas. 641; same case, 16 Pac. Rep. 338; Ashmore v. McDonnell, 39 Kas. 669; same case, 18 Pac. Rep. 821; Markin v. Priddy, 40 Kas. 684; same case, 20 Pac. Rep. 474; Mawhinney v. Doane, 40 Kas. 681; same case, 20 Pac. Rep. 488; Life Association v. Lemke, 40 Kas. 661; same case, 20 Pac. Rep. 512; The State v. Coulter, 40 Kas. 673; same case, 20 Pac. Rep. 525; English v. Woodman, 40 Kas. 752; same case, 21 Pac. Rep. 283; K. C. Ft. S. & G. Rld. Co. v. Burge, 40 Kas. 736; same case, 21 Pac. Rep. 589. In the case of Durkee v. Gunn, 41 Kas. 496, 21 Pac. Rep. 637, the oral argument was all before the commission, and the court decided the case upon an opinion prepared by one of its members without any additional argument. Afterward a motion for a rehearing was made and argued orally before the court, and the court has just overruled the motion and decided the case finally upon its merits. (41 Kas. 503, 21 Pac. Rep. 1,054.)

There are now just four acts of the legislature having relation to a commission for the supreme court, to wit: Laws of 1887, chapters 47 and 148; Laws of 1889, chapters 49 and 246. No two of the judges have yet agreed with reference to all the questions involved in or concerning the validity or invalidity of these acts; hence at the present time we could not well decide any such questions; but even if we were agreed, would it be proper to decide these questions in this case? Judge Cooley, in his work on Constitutional Limitations, uses the following language:

“ It must be evident to anyone that the power to declare a legislative enactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where he can conscientiously, and with due regard to duty and official oath, decline the responsibility.” (Cooley, Const. Lim., p. 159.)

“Neither will a court, as a general rule, pass upon a constitutional question, and decide a statute to be invalid, unless a decision upon that very point becomes necessary to the determination of the cause. While courts cannot shun the discussion of constitutional questions when fairly presented, they will not go out of their way to find such topics. They will not seek to draw in such weighty matters collaterally, nor on trivial occasions. It is both more proper and more respectful to a codrdinate department to discuss constitutional questions only when that is the very lis mota. Thus presented and determined, the decision carries a weight with it to which no extra-judicial disquisition is entitled. In any case, therefore, where a constitutional question is raised, though it may be legitimately presented by the record, yet if the record also presents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it, and when consequently a decision upon such question will be unavoidable.” (Cooley, Const. Lim., p. 163.)

It makes no difference in this case whether the acts relating to the commission or the commissioners are valid or invalid, for in whatever way any question concerning such acts might be decided, the decision of this case upon its merits must be the same as it would be if a different decision upon any question growing out of the aforesaid acts were made. • The validity or invalidity of the aforesaid acts, or of any portion of any one of them, has no relation whatever to the merits of this this case. What we shall do in the future with reference to the commission we have not yet agreed upon.

The motion for the rehearing will be overruled, and the judgment already rendered by this court will be permitted to stand.

Johnston, J., concurring.