Champer v. City of Greencastle

• Decision Date: 31 October 1893
• Docket Number: 16,977
• Citation: 35 N.E. 14,138 Ind. 339
• Parties: Champer v. City of Greencastle
• Court: Indiana Supreme Court

35 N.E. 14

138 Ind. 339

Champer v. City of Greencastle

No. 16,977

Supreme Court of Indiana

October 31, 1893

Petition for a Rehearing Overruled June 8, 1894.

From the Putnam Circuit Court.

The judgment is reversed, the cause remanded, with instructions to sustain the demurrer to the complaint.

C. C Matson and P. O. Colliver, for appellant.

T. T Moore, for appellee.

OPINION

McCabe, C. J.

This was a suit by the appellee against the appellant, begun in the mayor's court of said city, to recover the penalty provided for the violation of an ordinance of said city. Appellee recovered judgment, from which appellant appealed to the circuit court, where appellant's demurrer to the complaint, for want of sufficient facts, and his motion to dismiss the cause, were both overruled, after which appellee again recovered judgment. Appellant assigns for error these rulings of the trial court, and that the complaint does not state facts sufficient.

The whole question, thus raised, turns upon the validity of an ordinance of said city, which reads as follows: "An ordinance to provide for the removal of all saloon screens and window blinds, and providing penalty for the violation of such ordinance. Whereas it is claimed that there have been frequent violations of the liquor law in the city of Greencastle, Indiana, by the saloon keepers of said city in selling intoxicating liquors to minors and intoxicated persons, and also in allowing minors to congregate in such saloons around the pool table and billiard tables kept therein; and whereas, it has been found difficult, if not impossible, to obtain the evidence necessary to secure a conviction for such violations of law, owing to the blinds and screens erected and maintained by such saloon keepers to the doors and windows of such saloons, so as to obscure and prevent a view of the interior thereof; therefore, for the better policing of said city, and the more perfect enforcement of law, be it ordained by the common council of the city of Greencastle, Indiana, that it shall be and is hereby made unlawful for any person or persons who own operate or run any saloon, shop, or other place where intoxicating liquors are sold to be used in and upon the premises within said city of Greencastle, Indiana, or within two miles beyond the corporate limits of said city, to put up, erect or maintain any door screens, window blinds, or stained, ground, colored or darkened glass of any kind to any of the doors, windows or openings of such saloon, shop or other place where intoxicating liquors are sold to be used in and upon the premises, or to put up, erect or maintain any obstruction of any kind whatever, to any of such doors, windows or openings, that will in anyway obscure or prevent a full view of the interior of such saloon, shop or place aforesaid, but all such screens, blinds and stained, ground, darkened or colored glass, and all other obstructions aforesaid to the doors, windows and openings of such saloon, shops and places where intoxicating liquors are sold as aforesaid, shall be taken down and removed, so as to give a full and unobstructed view of the interior of such places at all times: Provided that nothing herein contained shall be so construed as to prevent said saloon keepers and persons aforesaid from having the usual and ordinary shutters to said doors. Any person violating any of the provisions of this ordinance shall, upon conviction before the mayor of said city, be fined in any sum not less than ten dollars nor more than one hundred dollars for each offense, and each day that such obstruction shall be put up, erected, maintained, or remain in place, shall constitute a separate and distinct offense. This ordinance shall be in force and take effect from and after its passage and publication."

It is contended on behalf of the appellant, that this ordinance is void because it is unreasonable, oppressive, and is in violation of the constitution, because it invades the rights of private property.

The validity of the ordinance depends upon the answer to the question: Had the municipal corporation of Greencastle the power to pass the ordinance? Municipal corporations have such powers only as are conferred upon them by the act of the Legislature creating them, and such incidental powers as are implied by their creation and as are essential for the accomplishment of the purposes of their creation and for their continued existence. City of Lafayette v. Cox, 5 Ind. 38; Kyle v. Malin, 8 Ind. 34.

All acts of such corporations not strictly within these limits are void. Their acts can not be declared void by the courts because of any supposed conflict between them and the constitution so long as their acts are authorized by the Legislature, and the act of the Legislature is not in conflict with the constitution.

It is well settled that the creation of a municipal corporation carries with it the implication that such corporation is empowered to pass such ordinances and bylaws as may be needful for its well being. 1 Dill. (4th ed.) Munic. Corp., sections 315 and 316, and authorities there cited.

It is also well settled law that where an ordinance is passed by such municipality under no other authority than such implied power, the ordinance to be valid must be reasonable; and if it is unreasonable it will be void. 1 Dill. (4th ed.) Munic. Corp., section 319, and authorities cited.

The first question, therefore, that confronts us is whether the passage of the ordinance was a reasonable exercise of the power conferred upon the corporation, and, therefore, whether the corporation had the power to pass it or not. It is to be regretted that counsel on neither side have furnished us with such a discussion of the question as its great importance seems to demand, as it is one of first impression in this court. Therefore, we have gone far beyond the briefs in our investigation, in order to reach a correct solution of the question. At the threshold of this discussion we are met with the suggestion that this court has held in two cases that no inquiry can be made into the reasonableness of the ordinance when the Legislature has enacted anything upon the subject, and hence it is suggested that in such a case the Legislatuse has delegated to cities the power to exercise a discretion in such matters, and, therefore, in such case the courts can not review that discretion.

The first of the cases referred to is A Coal-Float v. City of Jeffersonville, 112 Ind. 15, 13 N.E. 115, where it was said: "The power of a court to declare an ordinance unreasonable, and therefore void, is practically restricted to cases in which the Legislature has enacted nothing on the subjectmatter of the ordinance, and, consequently, to cases in which the ordinance was passed under the supposed incidental power of the corporation merely," and refers to sections 319 and 328, 1 Dill. (4th ed.) Munic. Corp., as authority for that statement. If the quotation is to be construed as meaning that no inquiry in such a case can be made into the question whether the ordinance was a reasonable exercise of the power conferred, then the language is too broad; if, however, it is to be construed to mean that no inquiry can be made as to whether the ordinance is reasonable or not where the power to pass it has been conferred, then it is correct. We think the latter is the proper construction to be placed on the language employed.

Section 328, of Dillon, supra, is the one that relates more directly to the point involved in the above quotation. It reads as follows: "Where the Legislature, in terms, confers upon a municipal corporation the power to pass ordinances of a specified and defined character, if the power thus delegated be not in conflict with the constitution, an ordinance passed pursuant thereto can not be impeached as invalid because it would have been regarded as unreasonable if it had been passed under the incidental power of the corporation, or under a grant of power general in its nature. In other words, what the Legislature distinctly says may be done can not be set aside by the courts because they may deem it to be unreasonable or against sound policy. But where the power to legislate on a given subject is conferred, and the mode of its exercise is not prescribed, then the ordinance passed in pursuance thereof must be a reasonable exercise of the power, or it will be pronounced invalid."

This is undoubtedly a correct statement of the law and is amply supported by the adjudicated cases wherever the point has come in question. It affords support to the statement of the rule by the learned judge who wrote the opinion from which we have quoted above only when construed as we have indicated. That was a case in which a recovery in attachment was sought against the boat for wharfage due the city of Jeffersonville. The question arose on the sufficiency of the complaint which set out the ordinance, which provided that "all steamboats, barges, keel boats, flat boats, or other boats or rafts, coming to or landing at the wharves of said city, shall pay to said city, to wit: * * For every coal float used, etc., $ 200 per year payable, etc."

The statute authorizing the enactment of the ordinance is the 34th subdivision of section 3106, R. S. 1881, which confers on cities the power "To establish and construct wharves docks, piers and basins; and to regulate landing places, and fix the rates of landing, wharfage, and dockage on all public grounds belonging to such city." * * * This court held in that case, and we think correctly under the statute above quoted, that "cities are expressly authorized * * * to fix rates of wharfage and dockage," and therefore expressly authorized to pass the ordinance above set out. And hence, no...