City of Shelbyville v. The Cleveland, Cincinnati, Chicago & St. Louis Railway Co.

• Decision Date: 13 October 1896
• Docket Number: 17,832
• Citation: 44 N.E. 929,146 Ind. 66
• Court: Indiana Supreme Court
• Parties: City of Shelbyville v. The Cleveland, Cincinnati, Chicago & St. Louis Railway Co

44 N.E. 929

146 Ind. 66

City of Shelbyville v. The Cleveland, Cincinnati, Chicago & St. Louis Railway Co

No. 17,832

Supreme Court of Indiana

October 13, 1896

From the Shelby Circuit Court.

Affirmed.

D. L Wilson, for appellant.

Elliott & Elliott and Adams & Carter, for appellee.

Howard J. Hackney, J. took no part in this decision.

OPINION

Howard, J.

In 1893 the legislature of this State enacted the following statute:

"An act prescribing the duties and powers of common councils of cities in relation to requiring railroad companies to keep and maintain lights at street and railroad crossings in cities, and declaring an emergency.

Approved March 4, 1893.

"Section 1. Be it enacted by the General Assembly of the State of Indiana, that the common councils of all cities of this State, not working under a special charter granted by the legislature of the State of Indiana, shall have the power to provide by ordinance or resolution for the security and safety of citizens and other persons from the running of trains through any city by requiring railroad companies running and operating a railroad through any city to keep and maintain lights on all nights that the common council may direct, at the points where the railroad tracks cross a street in any city, and may in such ordinance or resolution provide what kind of lights the railroad company shall maintain, and the manner of enforcing the compliance with the said resolution or ordinance by the railroad company, and for that purpose shall have power to pass and enforce a penal ordinance: Provided, That no city shall have authority under this act to pass any resolution or ordinance requiring any railroad company to maintain any different kinds of lights than that maintained by said city." Acts 1893, p. 302 (Burns' R. S. 1894, section 5173).

Under the provisions of this act, the appellant city passed an ordinance, of which we need set out only the title, preamble and first section, which are 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 city of Shelbyville, Indiana.

"Whereas, it is necessary for the security and safety of citizens and other persons from the running of trains through the city of Shelbyville, by railroad companies running and operating a railroad through said city; that an electric light be kept and maintained as hereinafter directed, wherever the track of such railroad company crosses a public street in said city.

"Now, therefore,

"Section 1. Be it ordained by the common council of the city of Shelbyville, Indiana, that it shall hereafter be the duty of every railroad company, running and operating a railroad through said city, to keep and maintain an electric light, wherever a track of such railroad company crosses a public street in said city; all such electric lights shall be of the arc pattern and of the same candle-power as the arc lights used by said city for street lighting. The lighting of all said lights shall be on the same schedule plan adopted and used by said city for its street lighting.

"Every railroad company failing or neglecting to keep and maintain lights, as hereinbefore provided, shall be fined in any sum not exceeding $ 10.00 for each night wherein they neglect to provide such lights as herein specified."

In an action against the company for a violation of the ordinance, the court, by overruling appellant's demurrer to an answer by the company setting up the invalidity of the ordinance, in effect, held the ordinance to be void.

Counsel for appellee, in seeking to uphold this action of the court, contend that the statute above set out gave the city no power to pass the ordinance in question; and that the attempt to pass the ordinance was not a reasonable exercise of the power delegated by the legislature. There is but little difference between these contentions. If there was an unreasonable exercise of power on the part of the city, that is but saying that the city was without power to do what was attempted. In either case the ordinance would be without validity. If, however, as counsel for appellant contend, the ordinance was a valid exercise of the power granted, and the act granting the power was itself constitutional, then there can be no question as to the reasonableness of the ordinance. Any ordinance duly passed in pursuance of lawful power delegated by the legislature to the city cannot be unreasonable. A Coal-Float v. City of Jeffersonville, 112 Ind. 15, 13 N.E. 115; Cleveland, etc., R. W. Co. v. Harrington, 131 Ind. 426, 30 N.E. 37; Steffy v. Town of Monroe City, 135 Ind. 466, 35 N.E. 121; Champer v. City of Greencastle, 138 Ind. 339, 24 L. R. A. 768, 46 Am. St. Rep. 390, 35 N.E. 14.

In and of itself, the city had no power to pass the ordinance. As said in the last case above cited, "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."

It is said in 1 Dill. Munic. Corp. (4th ed.), section 328: "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 cannot 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 cannot 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." And see, further, same authority, sections 319-330, and notes.

It therefore becomes necessary to inquire whether, in the case at bar, the act of the legislature gave to the city power to pass the ordinance in question, in manner and form as it stands; and if the mode of the exercise of the power is not prescribed in the act, whether the mode pursued in the ordinance is reasonably calculated to carry out the legislative intent. The ultimate question is one of power that is, whether the statute authorized the...