City of South Bend v. Chicago, S.B.&N.I. Ry. Co.

• Decision Date: 25 April 1913
• Docket Number: No. 21,851.,21,851.
• Court: Indiana Supreme Court
• Parties: CITY OF SOUTH BEND v. CHICAGO, S. B. & N. I. RY. CO.

179 Ind. 455

101 N.E. 628

CITY OF SOUTH BEND

v.CHICAGO, S. B. & N. I. RY. CO.

No. 21,851.

Supreme Court of Indiana.

April 25, 1913.

Appeal from Superior Court, St. Joseph County; Vernon W. Van Fleet, Judge.

Action by the City of South Bend against the Chicago, South Bend & Northern Indiana Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Iden S. Romig, S. J. Crumpacker, and Anderson, Parker & Crabill, all of South Bend, for appellant. Harry R. Wair, of South Bend, Ferdinand Winter, of Indianapolis, and James M. Barrett, of Ft. Wayne, for appellee.

MORRIS, J.

Action by appellant against appellee for a violation of a city ordinance which required companies operating street car lines in the city to sprinkle the space between their tracks so as to effectually lay dust.

The question presented is the power of the city to enact the ordinance; if it had such power, the judgment should be reversed, if not, it must be affirmed. A city's charter measures its powers, and these consist of such as are expressly or impliedly granted by the Legislature to the municipality. It is not claimed by appellant that there is any express grant of such power, but that authority to enact the ordinance is implied from certain express grants of power to municipalities found in the act of 1905 (Laws 1905, c. 129), concerning municipal corporations, as follows:

(a) “To secure the safety of citizens and other persons in the running of trains or cars in and through any such city, whether propelled by steam, electricity or other motive power. *** To require railroad, interurban or street car corporations or persons owning or operating such roads to keep gutters and street crossings clean along their right of way. ***” Clause 49, § 8655, Burns 1908.

(b) “To carry out the objects of the corporation, not hereinbefore particularly specified.” Clause 53, § 8655, Burns 1908.

(c) “Every city and town, except where otherwise provided by law, shall have exclusive power over the streets *** within such city. ***” Section 8961, Burns 1908.

(d) “To declare what shall constitute a nuisance, to prevent the same, require its abatement, authorize the removal of the same by the proper officers, and provide for the punishment of the person or persons causing or suffering the same, and to assess the expense of its removal against such person or persons, add to provide for collecting such expenses either by causing them to be placed on the tax duplicate or by suit.” Section 8655, cl. 7, Burns 1908.

The act of 1905 (Acts 1905, p. 219) contains provisions on the subject of street sprinkling in cities and towns. Sections 8696, 8697, 8742, 8743, 8744, 8963, Burns 1908. Under these provisions, the cost is assessed against the real estate abutting on the streets sprinkled, or paid out of the municipal treasury.

[1][2] In numerous decisions this court has held that municipal corporations can exercise only (1) powers granted in express words; (2) those necessarily or fairly implied, or incidental to the powers expressly granted; and (3) those essential to the declared objects and purposes of the corporation. Pittsburgh, etc., R. Co. v. Town of Crown Point (1896) 146 Ind. 421, 422, 45 N. E. 587, 35 L. R. A. 684;City of Elkhart v. Lipschitz (1905) 164 Ind. 671, 74 N. E. 528;State ex rel. v. Indianapolis, etc., R. Co. (1903) 160 Ind. 45, 66 N. E. 163, 60 L. R. A. 831;Lake County Water & Light Co. v. Walsh (1903) 160 Ind. 32, 65 N. E. 530, 98 Am. St. Rep. 264;Scott v. City of La Porte (1904) 162 Ind. 34, 68 N. E. 278, 69 N. E. 675. No incidental powers are implied except those essential to the continued existence of the municipality and to the accomplishment of the purposes of its creation, and doubtful claims of authority are resolved against the corporation. Pittsburgh, etc., R. Co. v. Town of Crown Point, supra. Where a statute enumerates specific powers of a city with...