City of Elkhart v. Murray

Decision Date10 October 1905
Docket NumberNo. 20,453.,20,453.
PartiesCITY OF ELKHART v. MURRAY.
CourtIndiana Supreme Court

165 Ind. 304
75 N.E. 593

CITY OF ELKHART
v.
MURRAY.

No. 20,453.

Supreme Court of Indiana.

Oct. 10, 1905.


Appeal from Circuit Court, Elkhart County; Joseph D. Ferrall, Judge.

Action by the city of Elkhart against Forrest Murray. From a judgment in favor of defendant, the city appeals. Affirmed.


John M. Van Fleet, for appellant. Perry L. Turner and Brick & Bates, for appellee.

MONKS, C. J.

This action was brought by the city of Elkhart for the violation by appellee of an ordinance which provides that “it shall be unlawful on and after May 1, 1903, to run any street car within the limits of said city without having securely fastened to its front end, a Hunter automatic fender, made by the Hunter Automatic Fender Company, of Covington, Ky., or some other fender equally as good, to be approved by the common council or its street committee.” The court below held the ordinance invalid and rendered judgment in favor of appellee.

There was no law in force in 1903, when said ordinance was passed, granting in express words to cities of the class to which appellant belonged the power to require street cars running within the city limits to be equipped with fenders. But, assuming that such power may be implied from those granted (People v. Detroit United Railway, [Mich.] 97 N. W. 36, 63 L. R. A. 746, 749, and cases cited), was said ordinance a reasonable exercise of that power? Such power, if possessed by the city, must be exercised by ordinance. The ordinance must contain permanent legal provisions operating generally and impartially upon all within the territorial jurisdiction of such city, and no part thereof be left to the will or unregulated discretion of the common council or any officer. If an ordinance upon its face restricts the right of dominion which the owner might otherwise exercise without question, not according to any uniform rule, but so as to make the absolute enjoyment of his own depend upon the arbitrary will of the city authorities, it is invalid, because it fails to furnish a uniform rule of action and leaves the right of property subject to the will of such authorities, who may exercise it so as to give exclusive profits or privileges to particular persons. City of Richmond v. Dudley, 129 Ind. 112, 28 N E. 312, 13 L. R. A. 587, 28 Am. St. Rep. 180, and cases cited; Bills v. City of Goshen, 117 Ind. 221, 20 N. E. 115, 3 L. R. A. 261;Bessonies v. City of Indianapolis, 71 Ind. 189;City of Plymouth v. Schultheis, 135 Ind. 339, 35 N. E. 12; Mayor of...

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