Metropolitan Railroad Company v. Macfarland
Upon this record the Metropolitan Railroad Company seeks, both by appeal and writ of error, to obtain a review of the action of the court of appeals of the District of Columbia, affirming an order of the supreme court of the District, which order sustained an award against the company, contained in the verdict of a jury, rendered in condemnation proceedings, under an act of Congress. 31 Stat. at L. 668, chap. 810. The statute referred to is entitled, 'An Act Authorizing and Requiring the Metropolitan Railroad Company to Extend Its Lines on Old Sixteenth Street.' Briefly, the act authorized and required the company to extend its lines over the streets to which the act referred, and, for the purpose of enabling this to be done, directed the commissioners of the District to commence the necessary proceedings to acquire the land needed for the widening of the streets. It was directed that the condemnation proceedings should be commenced in the supreme court of the District, upon notice, under the supervision of the court, to all interested parties. A jury of seven was directed to be empaneled by the court, and this jury, after organizing and viewing the premises, were to 'proceed, in the presence of the court, if the court shall so direct, or otherwise, as the court may direct, to hear and receive such evidence as may be offered or submitted on behalf of the District of Columbia, and by any person or persons having any interest in the proceedings for the extension of said street.' The act required the jury to return a written verdict fixing the amount of damages sustained by the lot owners by reason of the taking of their property for the widening of the streets, and also to ascertain and fix the benefits which would result from the work, not only to the lot owners, but to the Metropolitan Railroad Company, and the sum of the benefits was directed to be assessed against the railroad company and the lot owners. Power was conferred upon the court to hear any objections which might be made to the verdict, and to set it aside in whole or in part if the court were satisfied that it was unjust or unreasonable.

Section 13 of the act is as follows:

'Sec. 13. That no appeal by any interested party from the decision of the supreme court of the District of Columbia confirming the assessment or assessments for benefits or damages herein provided for, nor any other proceedings at law or in equity by such party against the confirmation of such assessment or assessments, shall delay or prevent the payment of the award to others in respect to the property condemned nor the widening of such streets: Provided, however, That upon the final determination of said appeal or other proceeding at law or in equity, the amount found to be due and payable as damages sustained by reason of the widening of the streets under the provisions hereof shall be paid as hereinbefore provided.'

The transcript before us shows that in July, 1900, the commissioners of the District instituted the proceedings in condemnation, required by the act, and that, among others, the Metropolitan Railroad Company was made a party. A jury having been empaneled, they were directed by the court to view the premises, and, outside of the presence of the court, to hear such evidence as might be produced by the interested parties, and to return their verdict to the court. Soon afterwards the railroad company filed an answer praying that it might be dismissed from the proceedings, because the act of Congress requiring the company to extend its lines was unconstitutional, and because the company could not be made liable for any assessment for benefits conferred upon it by the proposed work, as it owned no property in the District embraced by the improvement. Immediately following the answer of the railroad company is set out what purports to be instructions asked by the railroad company to be given by the court to the jury. Each of these instructions is marked by the clerk as filed on a named date, and below each instruction, unaccompanied by any certificate from a judge, is the statement, 'Rejected, with permission to present later.' Following these papers is what purports to be a notice on behalf of the railroad company that, on a given day, it would present a request to the court for the giving of the refused instructions as well as of others; and the paper in question, as also the instructions referred to in it, are marked filed by the clerk on a date named, and below some of the instructions, without any certificate whatever by the judge, is a recital, 'Rejected, and exception by the Railroad Company,' or 'Granted, and exception by D. C. and also by G. F. Williams, on behalf of certain property owners.'

The transcript shows that the jury returned a verdict to the court, fixing the damages and benefits, and that there was assessed against the railroad company, for benefits, the sum of $25,000. A rule nisi was entered to confirm the verdict, and the railroad company filed the following exceptions:

'The Metropolitan Railroad Company excepts to the finding, assessment, and award against it for alleged benefits to it from the proposed widening and extension of the said Columbia road and Sixteenth street, and for cause or ground of exception shows:

'1. That the said finding, assessment, and award are without evidence to support the same.

'2. That the said finding, assessment, and award are contrary to the evidence.

'3. That the said finding, assessment, and award are contrary to the weight of the evidence.

'4. For errors of law in the instructions given and refused by the court to the jury, over the objection and exception of the Metropolitan Railroad Company, before the said finding, assessment, and award were made, as shown by the record of the said cause.'

After the filing of these exceptions the transcript shows that a paper was filed by the clerk, which is styled 'Petition of Metropolitan R. R. Co., to make of record testimony as to the benefits to Metropolitan Railroad Company.' In this petition it is recited that the evidence before the jury was taken outside of the presence of the court, and that the only testimony before the jury on the subject of the benefits to the railroad company, as shown by affidavits annexed to the petition, was that of James B. Lackey, which was reduced to writing by a stenographer. The court was asked to allow the affidavits and deposition to be filed as part of the record, 'the same being essential to the hearing and determination of this respondent's exceptions to said award, filed in this cause, and it being impossible for this respondent properly to defend its rights in the premises without, in some way, causing the said evidence, and the fact that it was the only evidence in the case upon the question of said benefits to this respondent, to appear of record.' Upon this petition the following indorsement is shown: 'Let the within petition be filed. A. B. Hagner, Justice.' The transcript then sets out what purports to be the affidavits and testimony of Lackey, referred to in the petition.

It is also shown that, upon a subsequent date, the supreme court of the District, after due notice to all interested parties, and after hearing arguments of counsel upon the exceptions to the verdict, overruled the exceptions, and entered a final decree confirming the award and assessment as found by the jury, except in a minor particular, which need not be noticed. There is nothing in the transcript showing that any exception was reserved to the overruling of the objections to the award interposed by the company, and no bill of exceptions is shown to have been allowed by the judge. Immediately at the foot of the final decree appears the following:

'And from so much of the above decree as overrules its exceptions and confirms the verdict, award, and assessment against it, the Metropolitan Railroad Company appeals in open court, and the penalty of the appeal bond is fixed by the court at $100.

'A. B. Hagner, Asso. Justice.'

Next follows a stipulation signed by the attorneys for the District and for the railroad company as to what should constitute the transcript of record for the purposes of the appeal of the Metropolitan Railroad Company. Item 11 reads as follows:

'Petition of Metropolitan Railroad Co. to make of record certain testimony, and allowance of same, filed November 24, 1900.

'Motion to vacate order on said petition.'

The motion last referred to, however, does not appear in the transcript.

On the appeal of the railroad company the court of appeals affirmed the order appealed from (20 App. D. C. 421), and from its action in so doing the railroad company prayed, and was allowed, an appeal to this court. About a month afterwards the attorney for the railroad company filed in said court of appeals a motion in the cause, reading as follows:

'And now comes the appellant, by its counsel, and shows to the court that because of the fact that the record in this cause contains what may possibly be considered a bill of exceptions, it may be that the proper remedy would be held to be a writ of error instead of an appeal to the Supreme Court of the United States. It therefore prays that this honorable court, in addition to the appeal which was granted to it to the Supreme Court of the United States in this cause on the 24th day of October, 1902, it may also be allowed a writ of error to said court, and that the supersedeas bond required upon said appeal may also be taken and accepted as a supersedeas bond upon said writ of error.'

An entry appears in the transcript of the allowance of a writ of error, the filing of a bond conditioned for the prosecution both of the appeal and writ of error, and the transcript contains citations, as well on the writ of error as on the appeal, signed by the chief justice of the court of appeals. The consolidated proceeding, by appeal and writ of error, is the one which is now here for review.

Messrs. J. J. Darlington and C. C. Cole for appellant and plaintiff in error.

Messrs. Edward H. Thomas and Andrew B. Duvall for appellees and defendants in error.

Statement by Mr. Justice White:   Mr. Justice White, after making the foregoing statement, delivered the opinion of the court: 

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