Baltimore & O.R. Co. v. Town of Whiting
Decision Date | 06 October 1903 |
Citation | 68 N.E. 266,161 Ind. 228 |
Parties | BALTIMORE & O. R. CO. v. TOWN OF WHITING. |
Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
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 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 The third section provides that 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 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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