
    FOREST CEMETERY ASSOCIATION v. WILLIAM CONSTANS and Another.
    
    December 10, 1897.
    Nos. 10,729—(142).
    G. S. 1894, § 3096 — Cemetery—Eminent Domain — Appealable Order.
    An order appointing a committee in proceedings to condemn land for the purpose of enlarging a cemetery under the provisions of G. S. 1894, § 3096, is not appealable.
    Appeal by respondents from an order of the district court for Eamsey county, O. B. Lewis, J., appointing a committee agreeably to the petition of petitioner, a cemetery association, to condemn land for the extension of its cemetery.
    Dismissed.
    
      Warner. Richardson & Lawrence, for appellants.
    
      William Foulkc, for respondent.
    
      
       Reported In 73 N. W. 153.
    
   START, C. J.

This is an appeal from an order appointing a committee in proceedings instituted under the provisions of G. S. 1894, § 3096, to acquire by condemnation land for the enlargement of a cemetery. The statute expressly provides 'that the decision of the court upon the report of the committee shall have the effect of a judgment. Upon an appeal from the judgment, any intermediate order necessarily affecting the judgment may be reviewed. Hence the order in question is not appealable. It does not involve the merits of the action; it does not, in effect, determine the action; nor is it a final order affecting a substantial right in a special proceeding. It simply appoints a committee to examine and report as to the merits of the petition, and the damages to be awarded, and is no more appealable than an order appointing a referee. Bond v. Welcome, 61 Minn. 43, 63 N. W. 3; Fletcher v. Chicago, 67 Minn. 339, 69 N. W. 1085.

It was suggested on the argument that inasmuch as the question, the constitutionality of the statute authorizing cemetery associations to exercise the power of eminent domain, is an important public question, the appeal ought to be disposed of on the merits. The court, for obvious reasons, ought not to decide any appeal upon the merits when it is clear that there is no case before the court, especially when so grave a question as the constitutionality of a statute is presented.

Appeal dismissed.  