City of Elkhart v. Murray

• Decision Date: 10 October 1905
• Docket Number: 20,453
• Citation: 75 N.E. 593,165 Ind. 304
• Parties: City of Elkhart v. Murray
• Court: Indiana Supreme Court

75 N.E. 593

165 Ind. 304

City of Elkhart v. Murray

No. 20,453

Supreme Court of Indiana

October 10, 1905

From Elkhart Circuit Court; Joseph D. Ferrall, Judge.

Action by the City of Elkhart against Forrest Murray. From a judgment for defendant, plaintiff appeals.

Affirmed.

John M Van Fleet and Vernon W. Van Fleet, for appellant.

Brick & Bates and Perry L. Turner, for appellee.

OPINION

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, Kentucky, 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 [1903], 134 Mich. 682, 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 (1891), 129 Ind. 112, 13 L. R. A. 587, 28 Am. St. 180, 28 N.E. 312, and cases cited; Bills v. City of Goshen (1889), 117 Ind. 221, 3 L. R. A. 261, 20 N.E. 115; Bessonies v. City of Indianapolis (1880), 71 Ind. 189; City of Plymouth v. Schultheis (1893), 135 Ind. 339, 35 N.E. 12; Mayor, etc., v. Radecke (1878), 49 Md. 217, 33 Am. Rep. 239; State, ex rel., v. Dering (1893), 84 Wis. 585, 54 N.W. 1104, 19 L. R. A. 858, 36 Am. St. 948; Cicero Lumber Co. v. Town of Cicero (1898), 176 Ill. 9, 27, 51 N.E. 758, 42 L. R. A. 696, 68 Am. St. 155, and authorities cited; Noel v. People (1900), 187 Ill. 587, 591, 592, 58 N.E. 616, 52 L. R. A. 287, 79 Am. St. 238; City of Chicago v. Trotter (1891), 136 Ill. 430, 438, 26 N.E. 359; State v. Tenant (1892), 110 N.C. 609, 612, 613, 14 S.E. 387, 28 Am. St. 715, 15 L. R. A. 423, and cases cited; Town of State Center v. Barenstein (1885), 66 Iowa 249, 23 N.W. 652; City of Jacksonville v. Ledwith (1890), 26 Fla. 163, 7 So. 885, 9 L. R. A. 69, 23 Am. St. 558, and authorities cited on pages 575, 576; City of Newton v. Belger (1887), 143 Mass. 598, 10 N.E. 464; State v. Mahner (1891), 43 La. Ann. 496 at 496-498, 9 So. 480; May v. People (1891), 1 Colo.App. 157, 27 P. 1010.

In Bessonies v. City of Indianapolis, supra, at page 197, this court said: "Without any provision as to the location or management of hospitals, the ordinance attempts to make it unlawful for any one to establish or conduct one without a license or permit from the common council and board of aldermen; and the granting or refusal of the license or permit is not governed by any prescribed rules, but rests, in such case, in the uncontrolled discretion of the common council and board of aldermen. It is apparent, that, under the ordinance, if valid, the common council and board of aldermen have the power to grant or refuse the license in any given case, at their mere pleasure and that no one can conduct...