99 F. 838 | 7th Cir. | 1900
This appeal is from an order refusing to dissolve an interlocutory order of injunction against the opening of a street in the city of Terre Haute, Ind., pending an appeal from the order of the city council approving the report of the commissioners and directing that the street be opened. The appeal from the order of the city council was to the circuit court of Vigo county, from which the venue was changed to the circuit court of Parke county, and from that court the proceeding was removed,.on the petition of the Farmers’ Loan & Trust Company, to the circuit court of the United States for the district of Indiana, and is still pending in that court. The city council, notwithstanding the appeal, passed a resolution directing that the street be opened in accordance with its order, and thereupon the appellee, the trust company, brought the bill on which, the interlocutory order was granted. The city entered a special appearance in opposition to the granting of a temporary restraining order, but did not answer or demur to the bill, and, it is insisted by counsel for the appellee, did not, by a Ml or satisfactory showing by affidavit or otherwise, refute the charges of fraud and bad faith contained in the bill.
The questions of law and fact which have been pressed upon the attention of the court are numerous, and have been argued with great elaboration on both sides; but in the opinion of the court, after a careful reading of the briefs, they need not and should not he passed upon now, but should be left to the untrammeled consideration of the court below at the iinal hearing in that court. There is no controlling and unquestioned proposition of law or fact on which it can be said that the interlocutory order is clearly wrong and ought to be set-aside. It is contended that, in the exercise of the power of eminent domain, the city represented the sovereignty of the state, and that the suit against the city is therefore, in effect, a suit against the state, which is forbidden by the constitution of the state; but reason and the decisions of the supreme court of the state seem to he to the contrary. City of Ft. Wayne v. Ft. Wayne, W. & J. R. Co., 149 Ind. 25, 48 N. E. 242; Kyle v. Board, 94 Ind. 115; Erwin v. Fulk, Id. 233; City of New Albany v. White, 100 Ind. 206; Sidener v. Turnpike Co.. 23 Ind. 623.
The statute under which the proceeding was prosecuted allows appeals, but also provides that “such appeals shall not prevent such city from proceeding with the proposed appropriation, nor from mak