Birmingham Railway & Electric Co. v. Birmingham Traction Co.

128 Ala. 110

• Court: Supreme Court of Alabama
• Decided: November 15, 1900
• Status: Published

Opinion

DOWDELL, J.

In proceedings for the condemnation of land for public uses, there is a manifest distinction between the law as it existed under the Code of 1886, Art. 2, page 698, embracing 'sections 3207 to 3220, and the present statute, Code 1896, Art. 1, embracing sections 1712 to 1726. Under the former, only one hearing was provided from which an appeal could be prosecuted, and upon this hearing all questions of law and fact, including the assessment of damages to the landowner by a constitutional jury of twelve men, provided for under section 3210, were finally determined. Under the procedure, as 'it exists under the present statute (Code of 1896), there are two hearings from which appeals may be prosecuted; the first being upon the‘filing of the application and before any assessment of damages is. had, and is 'in its nature and 'character preliminary. Upon this hearing, the question of whether or not the application for a condemnation should be granted, is determined, and from such judgment of the court an appeal is authorized direct to the Supreme Court by section 1737. If, upon such hearing, the application is granted, then follows the proceedings for the appointment of commissioners to assess 'compensation and damages to the land owner, with provisions for hearing evidence by such commissioners in ascertaining the amount of damages and compensation, also the making of their report to the probate court and the order to be made by said court thereon. — §§ 1718-1739. From the assessment of damages and compensation thus made, ’section 1720 provides for an appeal by either party to the circuit court, “and on such appeal ¡the trial shall be ele novo, but no appeal shall suspend the judgment if the applicant shall give bond, with good and sufficient surety, to be approved by the probate judge, to pay such judgment as shall be rendered on appeal*” It is clear that the appeal authorized by the statute direct to this court from the decree of the probate court on the hearing of the application is from an interlocutory decree or order, while the appeal authorized from the. 'assessment of damages to the circuit court is from a final decree of the probate court on the report of the commissioners awarding compensation and damages. We apprehend that there can be no doubt but that it is clearly within the province of the legislature to provide for an appeal at any stage of the pimceedings, and also for an appeal from the judgment of final determination of the cause; and, also, that it is within the province of the lawmaking power in such provision for appeals to authorize generally both appeals to be taken, either to the same appellate court, or to different appellate courts.

By an act of the legislature, approved February 28th, 1889 (Session Acts, 1888-89, p. 112), section 3210 of the Code of 1886 was amended to the extent of reducing the jury for the assessment of damages and compensation from twelve to six juorors, and by this amendment the constitutionality of the statute was raised. The question thus raised by said amendatory act was before the court for consideration in the case of the Woodward Iron Co. v. Cabaniss, 87 Ala. 328, and the objection to the constitutionality of the statute was met by holding that the constitutional right of a trial by jury of twelve men was preserved by section 3640 of the Code of 1886, which authorized an appeal from the judgments and decrees of the probate court to the circuit court, where the opportunity of a trial by jury was. afforded. Following this case was the case of the Postal Telegraph Cable Co. v. Ala. Gt. So. R. R. Co., 92 Ala. 331, in which the appeal -was prosecuted direct to this court from the decree of the probate -court under the statute subsequent to the amendatory act of February 28, 1889, and in which case -a motion was made to dismiss the appeal. In this case it was held by this court (following the decision made in Woodward Iron Co. v. Cabaniss, supra, wherein it was said by Sommerville, J., speaking for the court, that -the statute in question would be clearly .unconstitutional in denying the right of trial by a constitutional jury, but for section 3640 of the Code, which preserved that light by an appeal to the circuit court, in which a jury trial could be had), thait'tbe two appeals authorized, one by section 3215 and the other by section 3640, 'Code of 1886, could not exist together without creating not only the anomalous state of having two appeals pending at one -and the -same time from the same judgment, with the possibility -of a reversal in on-e -and an -affirmance in [the other, but with the attendant possibility of operating a denial of the right of trial bv a constitutional jury in the event an appeal was prosecuted -otherwise tli-an under the provisions -of section 3640; or, in -other words, that the provision for an appeal direct from the probate -count, under section 3215, put it within the power -of -one of th-e parties to take away from ¡the other' party the right of a trial by jury guaranteed by the constitution.

In this conection, we will here repeat what was said in the Postal Telegraph Cable Case, supra, by this court, speaking through McClellan, J., as forcibly presenting the difficulty and objection obtaining under the then right of the two appeals as authorized by the law: “We have then two separate 'and distinct, and wholly different provisions as to appeals from the preliminary assessment of damages in ad quod damnum proceedings. In one the appeal is on bill of exceptions for correction of errors of law. In the other, the appeal is on the merits, and for a trial de novo. The one is to this court. The other is to the circuit court. The former affords no opportunity for a jury trial, and if if stood alone, the whole system would be, for this reason, unconstitutional and void. 'The latter secures to' the parties this constitutional right, and of its own force saves the system from invalidity on this account. In the first, the appeal may be taken at any time within three months from the order of condemnation. By the tc rms of the last, the appeal may be prosecuted at any time within a year. The present appeal is taken by the movant on a bill of exceptions directly from the probate to this court. The motion made by the appellee to dismiss the appeal raises the question as to whether both the provisions to which we have referred can stand. If either must fail, it must be that one which undertakes to authorize an appeal to this court, since that the other is of force in 'this class of cases is stare decisis, and since the whole system would come under the ban of the constitution, if the right to appeal to the circuit court should be denied. So that the real question is, whether the statutory provision which undertakes to give a right to come here on bill of exceptions is not so inconsistent with the constitutional right effectuated by section 3640 as to be nugatory.” In this case it was decided, following the case of Woodward Iron Co. v. Cabaniss, supra, in order to preserve the statutory system for the condemnation of lands from the constitutional objection of the denial of the right of trial by jury, that the statute authorizing the appeal direct to this court on bill of exceptions must give way.

It must be here remembered and observed that at the time of these decisions by this court, there was but one hearing in the probate court from which an appeal was authorized. Subsequent to the decision in the case of Postal Telegraph Cable Company, supra, by act approved February 18, 1891, (Session Acts, 1890-91), the statute was again amended. We say subsequent, because the record in that case shows that the cause was submitted before the passage of said act, and no reference is made to it.

Following this case, came the cases of the Alabama Midland Railway Co. v. Newton, 94 Ala. 443; Louisville & Nashville R. R. Co. v. The People’s St. R’y Imp. Co., 101 Ala. 331, and Memphis & Charleston R. R. Co. et al. v. Hopkins, 108 Ala. 159, in which the doctrine laid down by the court in the Postal Telegraph Cable Company case, supra, was reaffirmed, and furthermore assuming, which was evidently an oversight, that the amendatory act of February 18, 1891, received construction in that case. In the present -statute, Code -of 1896, the provisions of that act are substantially embodied, though in a more orderly and methodical arrangement, which, together with -other sections, make up the -system of condemnation procedure under which the proceedings in the present case were had. The objection of having two appeals pending at one and the same time from the same judgment, as the law stood at the time of the decision in the Postal Telegraph Cable Co. case is obviated under the present -statute, since the two appeals -are from different judgments. But the difficulty remains o-f a -possible denial of the constitutional right of -a trial by jury if full operation be given -section 1717 in every case as to the time prescribed in said section tion within which the appeal may be taken. It is not impossible, indeed, not improbable, for a -ease to occur, in which the right of appeal under section 1720 may arise within the period -covered by section 1717, and be lost in a race of diligence, by the -applicant for condemnation first securing an appeal under section 1717, on the preliminary judgment. We say lost, because the statute provides that the appeal under -section 1720 must be taken within- thirty 'days after the order made on the report of the commissi-ssio-ners assessing damages and compensation, and an -appeal taken from the preliminary order at this stage, -operating to suspend any -further proceedings in the probate court, would cut -off the right of appeal from the order* on the report of the commissioners, at least until a determination of the first -appeal-, and unless such first appeal should be, determined within the period for taking the second ,the right would be forever lost. In order to meet this objection, and also to preserve the right of -appeal given- under section 1720 'Which must be taken “within thirty days after the -making of the order of condemnation on the report of the commissioners,” ■ and which-is necessary to save the whole system from falling -under- the ban of the constitution, the only solution of the difficulty, that we find, is in construing section 1717 as giving to the party thirty days in which to appeal, except as limited by the right of appeal given under section 1720. In other words, that the right of appeal under section 1717, may be exercised at any time within the thirty days allowed, provided it is so -exercised before any order- is made on the report of the commissioners- under section 1720, a:t which time the right of appeal under this latter -statute arises. This 'construction saves both statutes and gives to each the fullest effect and operation that -can be given without offending -against the constitution. ■

From what we have said, it results that the cases of the Ala. Midland R’y Co. v. Newton, 94 Ala. 443, Louisville & Nashville R. R. Co. v. People’s St. R’y & Imp. Co., 101 Ala. 331, and the Memphis & Charleston R. Co. et al. v. Hopkins, 108 Ala. 159, in so far as they are in conflict with the views herein expressed, must be overruled. The motion, therefore, to dismiss the appeal in this case must be denied.

The record shows that the-East Birmingham Land Co. had conferred upon it powers to construct a railroad, and in connection with the railroad, it was entitled to and had granted to it certain special privileges which are set forth in the special acts -of the G-eneral Assembly (Acts, 1886-87, p. 301). The record further discloses that by a subsequent act additional privileges were granted, authorizing a change of name to that of the East Birmingham Land & Railway Co., (Acts, 1888-89, p. 582). We think there can be no doubt, if the franchises granted by the special acts referred to had been transferred to the appellee, it had ample power to condemn the locus in quo. It is shown that the East Birmingham Land Co. executed a mortgage to secure bonds issued for the purpose of building the railroad, and that by the terms of this mortgage its franchises were included therein; that there was a foreclosure of this mortgage and a sale of the property, including the franchises, and that the purchasers organized the Birmingham Traction Co., appellee here, under the provisions of the act of February 11, 1891, now contained in sections 1199-1201, hoth inclusive, of the. present Code, and the only question presented seems to he whether by these proceedings the appellee acquired the franchises granted 'by the special acts referred to in the record. Having complied with the terms of the 'Statute vyitli reference to organization, it is clear that the purchasers should have, hold and enjoy the franchises-provided they organize as a corporation, and having done this, it seems to us that the franchises are vested in the new corporation. The construction contendeil for by appellants of section 1199, that the purchasers ¡mentioned in'the statute'should he limited to the first or immediate purchasers, and should not be extended (to and embrace purchasers from these purchasers, or, in 'other words, sub-purchasers, seems to us entirely too narrow and contracted. Ordinarily and generally, we might say, the word “purchasers” ■would embrace.sub-purchasers, and there is nothing contained in the statute suggestive of a different interpretation to he applied.

Objection was made to parol proof of the proceedings of the stockholders of the appellee. The evidence discloses that there, was no record or written memoranda of the minutes kept, and in such case we think there can he no doubt that the proceedings had by the stockholders in their meeting might be shown by parol evidence.—2 Cook on Corp. 714; Alice v. Jones, 45 Fed. Rep. 148.

We find no reversible error in the record, and the decree of the probate court i'S affirmed.