Appeal from the District Court of the United States for the Southern District of Indiana, Indianapolis Division; Robert C. Baltzell, District Judge.
Before EVANS, SPARKS, and MAJOR, Circuit Judges.
This appeal from a judgment of award in a condemnation proceeding raises the question of the constitutionality of the action of the Federal Government in condemning privately owned land in an organized State for the purpose of creating a "demonstrational recreational park," pursuant to Title 2 of the National Industrial Recovery Act of 1933, § 201 et seq., 40 U.S.C.A. § 401 et seq.
Appellee filed its petition for condemnation and declaration of taking October 1, 1934, and its amended petition for condemnation April 15, 1935, reciting the estimated value of the land proposed to be taken at $2,000, which sum was deposited in the Registry of the Court. The petition named appellants (who are husband and wife) and numerous others as parties to the proceedings. In August, 1934, appellant Raphael had signed an option to sell the land involved for an agreed price of $2,000, with the understanding that if judicial procedure were deemed necessary, the compensation to be claimed by the owners and the award to be made for the lands should be on the basis of that purchase price. In September, 1935, appellants filed their demurrers to the petition accompanied by a memorandum setting forth the following reasons:
"The petition does not state facts sufficient to constitute a cause of action and is defective because the purpose for which the land is sought to be condemned is not a public purpose under purview of the Constitution of the United States, U.S.C.A. Const. Amend. 5.
"The United States has no authority under the Constitution to condemn lands for the purposes set out under the Act of Congress herein.
"That the Act of Congress upon which this suit is based is a delegation of delegated powers and provides no standards under which the President or his appointees may act."
The demurrers were overruled and appraisers were appointed over the objections of appellants. They appealed from the order of appointment, and this court, holding the appeal premature, dismissed it.See Dieckmann v. United States, 7 Cir., 88 F.2d 902. Thereafter the appraisers were unable to agree as to the appraisal, and a second group of appraisers was appointed, again over the objections of appellants on the same grounds as has previously been relied upon, and, in addition, that the Act under which the Government was proceeding did not give the right to condemn property for recreational park purposes. This point had been raised for the first time in the brief before this court in the appeal held premature and dismissed. The new appraisers assessed damages for the taking at $2300, of which they apportioned appellant Raphael's share at $1516.65; Alma's (arising out of her inchoate right of dower) at $758.33; and the county's for unpaid taxes, $25.02. Appellants excepted to the award, and upon hearing, a jury rendered a verdict of $2900, on which the court entered judgment directing payment of the entire sum (less the amount due the county) to Raphael. Both appellants applied for and were allowed an appeal, and they filed joint assignments of error.
At the outset, appellee seeks to foreclose our consideration of the merits of the cause on the ground that since the wife did not assign error as to the court's ruling that her husband was entitled to the entire award, the judgment is conclusive as to her, and since the two of them filed joint assignments of error, none being good as to her, none are available to him. Appellee cites and relies on Wimberly v. Cowan Investment Corp. 5 Cir., 80 F.2d 452, as authority for this proposition.However, we are unwilling to rest our decision of the case on this in view of the fact that this court has held that assignments of error are not jurisdictional. See Hultberg v. Anderson, 7 Cir., 203 F. 853, and cases there cited; Benjamin v. Buell, 7 Cir., 268 F. 792, 793. See also, for similar rulings of other Circuit Courts of Appeal, Bernard v. Lea, 4 Cir., 210 F. 583; Robinson v. U.S., 5 Cir., 84 F.2d 885; Robertson v. Morganton Full Fashioned Hosiery Co., 4 Cir., 95 F.2d 780. We are of opinion that since the rule as to the filing of assignments of error is not mandatory, we may relax it for good cause shown. We consider that where two parties join in an appeal as to subject-matter in which only one, in fact, has any interest, we are not obliged to dismiss the appeal for the reason that the other joined in the assignments of error. We therefore consider the errors as assigned by the party who does have the right to maintain the appeal.
Appellants contend that the Act of Congress under which the proceedings were had does not authorize the action, and that if it is held to, it is invalid and unconstitutional. Appellee contends that appellants have no right to question the authority of the Act having waived it by failing to present that question in their demurrers to the petition.
Condemnation proceedings by the Federal Government conform to state practice, in accordance with an Act of August 1, 1888, 40 U.S.C.A. § 258. The Indiana statute on Eminent Domain here applicable provides as follows (Burns' Indiana Statutes 1933, § 3-1705):
"Any defendant may object to such proceedings on the ground that the court has no jurisdiction either of the subject-matter or of the person, or that the plaintiff has no right to exercise the power of eminent domain for the use sought, or for any other reason disclosed in the complaint or set up in such objections. Such objections shall be in writing, separately stated and numbered, and shall be filed not later than the first appearance of such defendant; and no pleadings other than the complaint and such statement of objections shall be allowed in such cause * * * Provided, That amendments to pleadings may be made upon leave of court." Under this provision we agree with appellee that appellants may raise only those objections which were originally filed to the proceedings, and may not now rely upon a question raised in the District Court for the first time after the premature appeal had been dismissed by this court. The record does not disclose that appellants ever asked leave to amend their objections to add the one now relied upon, as to the scope of the Act to cover the proceedings now before us.Hence that question was not before the District Court and will not be considered by us.
The questions, then, are, whether the use for which the condemned land was intended was a public use; whether the Constitution authorizes the Federal Government to condemn land for the purposes here set out; and whether the Act violates the ...