Goldblatt Bros. Corporation v. City of East Chicago

• Decision Date: 11 February 1937
• Docket Number: 26634.
• Parties: GOLDBLATT BROS. CORPORATION v. CITY OF EAST CHICAGO et al.
• Court: Indiana Supreme Court

6 N.E.2d 331

211 Ind. 621

GOLDBLATT BROS. CORPORATION v. CITY OF EAST CHICAGO et al.

No. 26634.

Supreme Court of Indiana

February 11, 1937

Appeal from Superior Court, Lake County; Harold L strickland, judge.

Call & Call and Abe Hyman, all of Gary, for appellant.

Nick Stepanovich and Robert G. Estill, both of East Chicago, for appellees.

FANSLER Judge.

Appellant began this action seeking to enjoin appellees from interfering with appellant in the distribution of pamphlets and advertising matter. The interference specifically alleged is that appellees caused fifteen employees of appellant to be arrested, and that by reason thereof appellant incurred large expense in defending its employees and that they had violated no law of the state of Indiana. Appellees answered, setting up an ordinance of the city prohibiting the distribution of written advertising matter 'by placing or causing the same to be placed in any automobile, or in any yard, or on any porch, or in any mail box in said City, not in possession or under the control of the person, firm or corporation so distributing.' Newspapers are exempted from the provisions of the ordinance and a penalty is provided for violation. The answer alleges that the arrests complained of were made for violations of the ordinance. A demurrer to this paragraph of answer was overruled. There were special findings of fact, by which the material facts alleged in the complaint and the answer were found to be true, and, by its conclusion of law, the court held the ordinance to be valid and binding, and thereupon rendered judgment for appellees.

The overruling of the demurrer to the answer, and the conclusion of law form the basis for assigned errors, and the only question presented by appellant involves the legality of the ordinance and the city's power to adopt and enforce it.

Appellant contends that it has a property right in the privilege of distributing advertising matter by placing the same in automobiles, or yards, or on porches, or in mailboxes, but it has no such right. The provision of the ordinance, exempting from its operation property in possession or under the control of the person distributing, amply protects the right to distribute where it has permission from the property owner. Any other distribution is an intrusion upon private property, which may be forbidden by the owner, and if injury results from the intrusion it is a trespass.

Appellant contends that a municipal corporation, in the enactment of ordinances, has only such power as is expressly granted and necessarily implied; that the statute conferring powers will be strictly construed; that doubt as to power will be resolved against the corporation; and that where a statute enumerates specific powers of the municipal corporation, with reference to a certain subject, a power not enumerated is presumably withheld. It then points to section 48-1407, Burns' Ann.St.1933, section 11432, Baldwin's Ind.St.1934, a statute conferring general powers upon common councils of cities, which confers power to regulate and prevent the throwing of papers, handbills, and other materials into any street, alley, or public place; and contends that the express granting of power concerning the regulation of papers and handbills in the public streets and places must be construed as withholding power to regulate such matters respecting private places.

But appellant's construction of the law does not exactly coincide with the decisions of this court upon the subject. In City of Crawfordsville et al. v. Braden (1891) 130 Ind. 149, 154, 155, 28 N.E. 849, 851, 14 L.R.A. 268, 30 Am.St.Rep. 214, it is said:

'Special charters, as well as general statutes for the incorporation of cities and towns, usually contain a specific enumeration of powers granted to, and which may be exercised by, such corporations. In many cases, the powers thus enumerated are such as would be implied by the mere fact of the incorporation.

'Where powers are thus enumerated in a statute which would belong to the corporation without specific enumeration, the specific statute is to be regarded, not as the source of the power, but as merely declaratory of a pre-existing power, or, rather, of a power which is inherent in the very nature of a municipal corporation, and which is essential to enable it to accomplish the end for which it is created. And the enumeration of powers, including a portion of those usually implied, does not necessarily operate as a limitation of corporate powers, excluding those not enumerated. Clark v. City of South Bend, 85 Ind. 276 ; First Nat. Bank v. Sarlls 28 N.E. 434 [13 L.R.A. 481, 28 Am.St.Rep. 185].

'The corporation, notwithstanding such enumeration, still possesses all of the usually implied powers, unless the intent to exclude them is apparent either from express...