Blackwell Lumber Co. v. Empire Mill Co.

MORGAN, J. This ease has heretofore been before this court upon appeal from a judgment of dismissal made and entered upon the refusal of the above-named respondent (appellant in that case) to further plead after a demurrer to its complaint had been sustained. (Blackwell Lumber Co. v. Empire Mill Co., 28 Ida. 556, 155 Pac. 680.) The decision of the trial court was reversed and the cause remanded for further proceedings. A trial has been had and judgment condemning sufficient land for a right of way for a temporary logging railroad and appointing commissioners to assess the damages appellant will suffer, by reason of the condemnation and appropriation, has been entered, from which an appeal is now pending in this court. The case is before us now upon appellant’s application, supported by an affidavit, for an order staying all proceedings pending the determination of the appeal, from which it [238] appears that appellant contends it had, prior to the commencement of this action, acquired and dedicated to use for railroad purposes the land sought to be taken from it by respondent, and that, subsequent to the commencement of the action, it had deeded a right of way over the land to a corporation organized for the purpose of constructing and operating a common carrier railroad thereon; that the use to which the last-mentioned corporation intends to put the land is a greater and more necessary public use than is that to which respondent proposes to apply it, and that this action cannot, therefore, be successfully maintained. Respondent demurred to and moved to dismiss the application upon the ground that neither it nor the affidavit filed in support of it states facts sufficient to constitute a cause of action or any ground for relief; that this court is without jurisdiction to entertain the proceeding or to grant the relief applied for, and that a stay of proceedings is not authorized by law in a condemnation suit during the pend-ency of an appeal to the supreme court. Counsel for respondent cites and relies upon the case of McLean v. District Court, 24 Ida. 441, Ann. Cas. 1915D, 542, 134 Pac. 536, wherein it was held, and we believe correctly, that an appeal in a condemnation suit does not operate to stay proceedings under the provisions of our Code of Civil Procedure. While it may be conceded that no stay has been provided for or even intended by the legislature in cases of this kind, it must also be conceded that the constitution invests this court with considerable discretionary power in the matter of the issuance of such writs as it may deem to be expedient in the exercise of its jurisdiction, and prohibits the legislature from interfering with that power. Sec. 9, art. 5, of the constitution is as follows: ‘ ‘ The supreme court shall have jurisdiction to review, upon appeal, any decision of the district courts,- or the judges thereof. The supreme court shall also have original jurisdiction to issue writs of mandamus, certiorari, prohibition, and habeas corpus; and all writs necessary or proper to the complete exercise of its appellate jurisdiction.” [239] In sec. 13, art. 5, it is provided: “The legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightfully pertains to it as a co-ordinate department of the government; but the legislature shall provide a proper system of appeals, and regulate by law, when necessary, the methods of proceeding in the exercise of their powers of all the courts below the supreme court, so far as the same may be done without conflict with this constitution. ’ ’ Had the legislature sought to expressly prohibit the issuance of an order of this court staying proceedings upon appeal in condemnation cases (which it has not attempted to do), its effort in that behalf would have been in conflict with the foregoing provisions of the constitution and ineffectual. Since the construction of respondent’s logging railroad upon the land in controversy will involve considerable useless expense, in the event its right to do so is not finally sustained, and since it is the intention of this court to hear the appeal of this case at its forthcoming term, to be held at Coeur d’Alene in August of this year, and to speedily dispose of it, to the end that if respondent’s claim of right to appropriate the land is sustained no very great delay will result from our action in this behalf, we have concluded to overrule the demurrer and motion to dismiss and to continue in full force and effect the order heretofore made staying proceedings in this case, and it is so ordered. Costs will abide the result of the appeal. Sullivan, C. J., concurs.