Baltimore & O.R. Co. v. Town of Whiting

Decision Date06 October 1903
Citation68 N.E. 266,161 Ind. 228
CourtIndiana Supreme Court


Appeal from Circuit Court, Lake County; W. C. McMahon, Judge.

Action by the town of Whiting against the Baltimore & Ohio Railroad Company. From a judgment of the circuit court affirming a judgment rendered by the town clerk in favor of plaintiff, defendant appeals. Affirmed.Thomas J. Wood, for appellant. Charles Greenwald and Ibach & Ibach, for appellee.


In 1902 the board of trustees of the town of Whiting passed an ordinance regulating the speed of railroad trains within the corporate limits of said town, and fixing penalties for its violation. An action was commenced before the clerk of said town by appellee against appellant to collect said penalties for an alleged violation of said ordinance. A trial of said cause resulted in a judgment against appellant. On appeal to the court below, a trial again resulted in a judgment against appellant.

Appellant insists (1) that said ordinance is not valid, because “there is no statute authorizing incorporated towns to regulate the speed of trains in the corporate limits”; (2) that said town clerk had no jurisdiction to try said cause, for the reason that the act approved February 28, 1901, Acts 1901, p. 57, c. 45, being sections 4346-4346d, Burns' Rev. St 1901, so far as it attempts to confer judicial powers upon clerks of incorporated towns, is unconstitutional and void.

It is evident that under section 4404, and clauses 4, 6, 9, and 16 of section 4357, Burns' Rev. St. 1901, incorporated towns have the power to pass reasonable ordinances regulating the speed of railroad trains within their corporate limits. Scudder v. Hinshaw, 134 Ind. 56, 58-60, 33 N. E. 791;Nealis v. Hayward, 48 Ind. 19;Pittsburgh, etc., Ry. Co. v. Town of Crown Point, 146 Ind. 421, 423-427, 45 N. E. 587, 35 L. R. A. 146; 1 Dillon's Mun. Corp. (4th Ed.) §§ 315, 393; 2 Smith's Mod. Law of Mun. Corp. § 1309, pp. 1356, 1357; Elliott's Roads & Streets, §§ 452, 807; 3 Elliott on Railroads, § 1082, p. 1624. Moreover, the Legislature, in sections 2299, 5307, Burns' Rev. St. 1901 (sections 2178, 4020, Rev. St. 1881, and Horner's Rev. St. 1901), expressly recognized the power of incorporated towns to pass such ordinances.

Appellant's first contention, under its second point, is that the part of said act conferring judicial power on town clerks is unconstitutional, because the title of the act, “An act concerning town officers,” is insufficient to include the grant of such power. Section 19 of article 4 of the Constitution provides that “every act shall embrace but one subject and matters properly connected therewith, which subject must be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.” The act in question is about town officers. No other subject is mentioned. The question is therefore whether or not the granting of judicial power to a town officer, the clerk, is a matter properly connected with such subject. Naturally, among the matters that would be looked for under the head of town officers, would be eligibility, appointment or election, qualifying and induction into office, term of office, rights, powers, duties, liabilities, fees, and compensation. These matters are properly connected with the subject. In the first section of the act in question the matters mentioned are the election and term of town officers. The second section relates to the powers and duties of town clerk. It is provided in said section, among other things, that “it shall be his duty to see that the laws of the state and the ordinances of the town are faithfully executed within his jurisdiction. He shall possess all the powers of a justice of the peace, as defined by law. He shall hold court every day (Sunday excepted) at a place to be named by the town trustees. He shall be a conservator of the peace, and as such shall have, within the town limits and within the township or townships within which such town is situated, the powers conferred upon justices of the peace for all purposes. While sitting as a court he shall have exclusive jurisdiction of all prosecutions for violation of the ordinances of the town; and he shall have within the limits of such township or townships, the jurisdiction and powers of a justice of the peace in all matters, civil and criminal, arising under the laws of this state; and for crimes and misdemeanors his jurisdiction shall be coextensive with the county or counties in which such town is situated: provided, that in trials before him he shall have equal but not higher powers than those of a justice of the peace. In all actions before a town clerk either party may have a trial by jury, a change of venue to a justice of the peace, and an appeal to the court of superior jurisdiction, under the same restrictions and in the same manner as is provided for appeals from justices' courts. The same rules of pleading and practice shall be observed by such town clerk in all trials as are provided by law for the court of a justice of the peace. The town clerk shall give bond payable to the state of Indiana in a sum to be fixed by the town board at not less than two thousand dollars ($2,000), the bond to be approved by the clerk of the circuit court, with freehold surety, conditioned for the faithful performance of his duties as town clerk, and of all other duties he may be required to perform, and shall file the same with the clerk of the circuit court within the time provided by law for the qualification of justices of the peace. All fines and penalties collected by him shall be paid to the treasurer of the town within one month after the same have been received by him except when otherwise directed by the acts defining the duties and powers of justices of the peace, in which case he shall pay all fines and forfeitures collected by him for violations of the penal laws of the state in the same manner and under the same conditions that justices of the peace are required by law to do.” The third section provides that “the town clerk shall keep a docket, as justices of the peace are required by law to do. He shall be entitled to the same fees in criminal and other cases, and for all his official acts, as are given by law to justices of the peace. In case of a vacancy in the office of town clerk by death, resignation or otherwise, the town trustee shall immediately elect a successor, who shall, upon taking the oath and on giving bond, take charge of the town clerk's docket and other papers and records, and serve until the next town election.” The fourth section confers the power to administer oaths, take depositions, and the acknowledgment of instruments required by law to be acknowledged. The fifth requires the town clerk to procure and use an official seal. The sixth relates simply to the duties of town marshal. It is clear that each provision of said act relates to matters properly connected with the subject, “town officers.”

As was said in Bright v. McCullough, 27 Ind. 223, 227, and reaffirmed in Shoemaker v. Smith, 37 Ind. 122, 133: “The Constitution does not assume to divide the general scope of legislation and classify the parts under particular heads or subjects, but of necessity has left that power to be exercised by the Legislature as it, in its wisdom and discretion, shall deem proper. The Constitution assumes that different subjects of legislation do exist, and requires that each shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title. The purposes of the provision, in view of the evils intended to be guarded against, can only be effected by requiring that the subject expressed should be reasonably specific, or, in other words, should be such as to indicate some particular branch of legislation, as a head under which the particular provisions of the act might be reasonably looked for.”

The Constitution does not require that the title of the act shall specify each particular or detail or feature of the matter contained in the act, or that it shall contain an index thereto or an abstract thereof. Maule Coal Co. v. Partenheimer, 155 Ind. 100, 105-107, 55 N. E. 751, 57 N. E. 710;Chicago, etc., R. Co. v. State, 153 Ind. 134, 142, 51 N. E. 924;Lewis v. State, 148 Ind. 346, 47 N. E. 675;State v. Gerhardt, 145 Ind. 439, 459, 44 N. E. 469, 33 L. R. A. 313, and cases cited; Central Co. v. Febring, 146 Ind. 189, 191, 45 N. E. 64;State v. Arnold, 140 Ind. 628, 38 N. E. 820;State ex rel. v. Kolsem, 130 Ind. 434, 444, 29 N. E. 595, 14 L. R. A. 566;Benson v. Christian, 129 Ind. 535, 538, 539, 29 N. E. 26;City of Indianapolis v. Huegele, 115 Ind. 581, 590, 18 N. E. 172;Barnett v. Harshbarger, 105 Ind. 410, 411, 5 N. E. 718;Warren v. Britton, 84 Ind. 14, 23;Shoemaker v. Smith, 37 Ind. 122;Bright v. McCullough, 27 Ind. 223;Walker v. Dunham, 17 Ind. 483. Acts have been passed conferring judicial powers upon mayors of cities, since the adoption of the present Constitution, under titles no more comprehensive than the one under consideration. 1 Rev. St. 1852, pp. 203, 206, 207, c. 17; Acts 1857, pp. 42, 46, 47, c. 33; 1 Gav. & H. St. pp. 216, 219, c. 28; Acts 1867, pp. 33, 37, 38, c. 15.

Appellant next insists that that part of said act conferring judicial powers upon town clerks is unconstitutional, because it is an attempt to confer judicial power upon an administrative officer, which is a violation of article 3 of the Constitution, which provides that “the powers of the government are divided into three separate departments, the legislative, the executive, including the administrative, and the judicial, and no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in this Constitution provided.”


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