Chicago, Indianapolis & Louisville Railway Company v. Town of Salem

• Decision Date: 02 February 1906
• Docket Number: 20,656
• Court: Indiana Supreme Court
• Parties: Chicago, Indianapolis & Louisville Railway Company v. Town of Salem

76 N.E. 631

166 Ind. 71

Chicago, Indianapolis & Louisville Railway Company v. Town of Salem

No. 20,656

Supreme Court of Indiana

February 2, 1906

From Washington Circuit Court; Thomas B. Buskirk, Judge.

Prosecution by the Town of Salem against the Chicago, Indianapolis &amp Louisville Railway Company. From a judgment for plaintiff defendant appeals.

Reversed.

E. C Field and H. R. Kurrie, for appellant.

Mitchell & Mitchell, for appellee.

OPINION

Montgomery, J.

Appellee commenced this action April 27, 1904, before the clerk of the town of Salem, charging appellant with having run its locomotives and trains over Main street, South High street and East Market street in said town in violation of an ordinance adopted March 24, 1902, a copy of which ordinance was filed with and made a part of each paragraph of complaint. The ordinance upon which the action was based reads as follows:

"An ordinance requiring railroad companies to keep and maintain an electric light wherever a track of a railroad company crosses a public street in the town of Salem, Indiana.

Whereas, it is necessary for the security and safety of citizens and other persons from the running of trains through the town of Salem, by railroad companies owning and operating a railroad through said town, that an electric light be kept and maintained as hereinafter directed, wherever the track of such railroad company crosses a public street in said town: Now, therefore:

Section 1. Be it ordained by the board of trustees of the town of Salem, in Washington county, State of Indiana, that the Chicago, Indianapolis & Louisville Railway Company, or any other railway company which passes through the town of Salem, over and upon the streets of said town, is required to erect, establish and maintain electric lights of such candle-power, not to exceed 2,000 candle-power, and give such lighting service as the town of Salem maintains and supports, and being governed in such service, according to moonlight schedule, with the following modifications, to wit: That said company shall turn on the lights at night, twenty minutes before the arrival of any and all trains, at the station thereof, and shall keep the same turned on and lighted until twenty minutes after the departure of any and all trains, except on cloudless, moonshine nights, when said company or companies are not required to turn on said lights; that said lights shall be placed at the following points, to wit: One where said company's right of way intersects South Main street, one where said company's right of way intersects South High street, and one where said company's right of way intersects East Market street. At each of said points said railroad passes over said streets which are within the corporate limits of said town of Salem; that said streets at said points of crossing are much used by the public and that said lights required to be so placed are for the protection and safety of said traveling public.

Section 2. Be it further ordained that it shall be unlawful for said railway company or companies to operate its or their locomotives or trains of cars over and upon said streets, from and after this ordinance has been passed and approved by said board of trustees, and the publication of said ordinance according to law, until said railway company places said lights and maintains the same at the points set forth in section one of this ordinance.

Section 3. It is further ordained that for each and every violation of the provisions of sections one and two of this ordinance, the railway company shall forfeit and pay to said town a sum of $ 10, the payment of which may be enforced by suit by said town before any justice of the peace in said corporation.

Section 4. Be it ordained that this ordinance shall take effect and be in full force thirty days from and after said ordinance has been published according to law.

Section 5. That ordinance No. 135 is hereby repealed.

Read, approved and adopted by the board of trustees of the town of Salem, Indiana, this 24th day of March, 1902."

A trial before the town clerk resulted in a judgment for appellee, from which an appeal was taken to the circuit court, where the cause was retried with the same result. Demurrers were filed to each paragraph of the complaint both before the town clerk and the circuit court, on the ground that the court had no jurisdiction of the subject-matter, and because of a want of facts to constitute a cause of action. These demurrers were overruled, and exceptions duly saved.

The insufficiency of the complaint is the first and chief error relied upon for a reversal of the judgment.

The statute upon which the ordinance in question was predicated is as follows: "That the board of trustees of all towns in this State shall have the power and authority is hereby given them to provide by ordinance or resolution for the security and safety of the citizens and other persons from the running of trains through any town by requiring the railroad companies running and operating a railroad through any town to keep and maintain lights on all nights that the board of trustees may direct at such points where the railroad tracks cross a street in any town, and such board of trustees may in such ordinance or resolution provide what kinds of lights the railroad company shall maintain and the manner of enforcing compliance with the resolution or ordinance by the railroad company, and for that purpose shall have the power to pass and enforce a penal ordinance: Provided, that no town shall have the authority under this act to pass any resolution or ordinance to require any railroad company to maintain any different kind of lights than that maintained by the town." § 4357b Burns 1901, Acts 1901, p. 344.

The jurisdiction of town clerks (§§ 4346-4346d Burns 1901, Acts 1901, p. 57) over prosecutions for the violation of town ordinances has been expressly declared by this court. Chicago, etc., R. Co. v. Town of Salem (1904), 162 Ind. 428, 70 N.E....