Grand Trunk Western Railway Company v. City of South Bend
| Decision Date | 23 November 1909 |
| Docket Number | 20,981 |
| Citation | 89 N.E. 885,174 Ind. 203 |
| Parties | Grand Trunk Western Railway Company v. City of South Bend et al |
| Court | Indiana Supreme Court |
Rehearing Denied May 11, 1910, Reported at: 174 Ind. 203 at 222.
From Laporte Circuit Court; John C. Richter, Judge.
Suit by the Grand Trunk Western Railway Company against the City of South Bend and others. From a judgment for defendants plaintiff appeals. (For decision on appeal to United States Supreme Court, see U.S. .)
Affirmed.
Anderson Parker & Crabill and Kretzinger, Gallagher, Rooney & Rogers, for appellant.
Frank H. Dunnahoo, Lucius L. Hubbard, Arthur L. Hubbard, Iden S. Romig and Harry R. Wair, for appellees.
This suit was brought by appellant against the city of South Bend and certain of its officers, to enjoin them from interfering with appellant in its attempt to lay a second track through a portion of the city of South Bend, on and along the center of Division street. Suit was originally commenced in the St. Joseph Circuit Court, from which a change of venue was taken to the Laporte Circuit Court. There is an amended complaint in two paragraphs. Appellees' separate and several demurrers for want of sufficient facts were sustained to each of the amended paragraphs of the complaint. Appellant refused to plead over, and judgment was rendered against appellant for costs.
The errors assigned are the sustaining of each and all of the demurrers to the amended complaint.
After the preliminary allegations of the complaint, it appears from the first paragraph thereof that on or about October 24, 1866, the city of South Bend, by William G. George, mayor, and fourteen individuals, executed articles of association, to incorporate, for the purpose of building, owning and operating, a railroad to be known as the "Peninsular Railroad Company of Indiana," running from the north line of the State of Indiana through South Bend, and thence in the direction of Chicago, and to be about eighty-five miles long; that the articles of association were filed on December 10, 1866; that on March 2, 1868, the common council of the city of South Bend enacted an ordinance, No. 62, whereby authority was given, granted and duly vested in the Peninsular Railroad Company of Indiana to construct and maintain a track for its said railroad within the city of South Bend upon the following terms, to wit: "Commencing at the eastern limits of said city, at the east end of a twenty-foot street laid out and dedicated on the south side of Samuel Gottrell's addition to the town of Lowell, or at a point on said twenty-foot street that the company might see proper to adopt, thence across the St. Joseph river to the eastern end of the extension of Division street, and its extension in said city so far as said company might desire, crossing all intermediate streets and alleys, and to run locomotive cars and trains over said road so far as might be necessary for conducting the business of said company;" that no more than one track for such road should be laid across any street of said city without the previous assent of the common council of said city, except only the privilege "which was thereby granted to lay a double track across the bridge over the St. Joseph river, and from the western terminus of said bridge to General Taylor street in said city, subject to the conditions thereinbefore contained;" that in the year 1881 the Chicago and Grand Trunk Railway Company, which company was then operating and maintaining said railroad, desired to acquire and perfect its title to the land used by it, and which it would be necessary to use in operating its road as a right of way through Division street in said city, and to settle with and compensate the owners of said land for their interest in the central portion of the street so taken, and, in accordance with the statutes of the State of Indiana, to appropriate for its use, as and for a railroad track, a strip of land eighteen feet wide on the street in question. The complaint avers that plaintiff is the owner in fee of said right of way eighteen feet wide, extending from the west end of the bridge crossing the St. Joseph river to General Taylor street, in the city of South Bend, a distance of about two hundred rods; that since the year 1871, this company and its predecessors aforesaid, have openly, continuously and notoriously occupied the center of Division street with its said railroad from the west end of said bridge to General Taylor street, and have always claimed the right to lay said double track across the St. Joseph river, and along said Division street from the west end of said bridge to the center of General Taylor street, aforesaid, whenever the requirements of their business should make it necessary, and have expended large sums of money in maintaining said track, and have complied with the conditions required of them by said ordinance, with the full knowledge and acquiescence of the city of South Bend and the authorities thereof; that on January 1, 1881, said Chicago and Grand Trunk Railway Company did lay a double track on Division street between the St. Joseph river and Michigan street, which lies five squares east of and parallel with General Taylor street, and it and its assigns have ever since used, and plaintiff still uses, said double track; that on October 14, 1901, the city of South Bend, through its common council, assumed by ordinance to repeal so much of the ordinance granting the right to maintain a railroad in Division street as gives the right to a second track in that street from Michigan street to General Taylor street, and the city now claims that such action of the common council was effective, and that thereby plaintiff's right to said second track was lawfully revoked, and defendants have forcibly prevented the putting down of such second track. It is also alleged that the street is eighty-two and one-half feet wide, and that the obstruction of the street by passing trains will be much less when two tracks are used than it is now, when all trains have to pass over a single track, and that there is ample space thereon for general travel and for said double track.
The second paragraph of complaint is the same as the first, so far as any question involved in this appeal is concerned. The only material difference is as to the manner of acquisition by appellant, of the rights, franchises and property of the original company, and no question is raised by appellees as to that matter. There is the additional allegation in the second paragraph that appellant, supposing its title in all respects perfect, kept up and maintained its line through Division street, and expended on the whole line of railroad $ 1,000,000.
The questions which need to be here decided are: (1) Did appellant as successor to the rights and privileges of the original Peninsular Railroad Company of Indiana acquire, by virtue of the grant contained in ordinance No. 62 of the common council of the city of South Bend, the right to lay an additional track on Division street between Michigan and General Taylor streets? and (2) if it obtained that right under the grant by that ordinance, could the city by another ordinance revoke so much of the grant as permitted the laying of an additional track on that portion of Division street? If the ordinance contained such a grant, and the city had no power to revoke it, this judgment must be reversed. If the company has not such right to lay an additional track, or if there was granted a right to lay an additional track and the city had the power to revoke this grant, the judgment must be affirmed.
The legislature, primarily, has control over streets, as well as other public highways. They are the arteries of the State. State, ex rel., v. Board, etc. (1908), 170 Ind. 595, 85 N.E. 513; Cones v. Board, etc. (1894), 137 Ind. 404, 37 N.E. 272. And this governmental power of control cannot be surrendered or contracted away. It is a part of the police power which cannot be alienated or placed beyond municipal control. Northern Pac. R. Co. v. State, ex rel. (1908), 208 U.S. 583, 28 S.Ct. 341, 52 L.Ed. 630, and cases cited; State v. Barrett (1909), 172 Ind. 169, 87 N.E. 7; Indiana Oil Co. v. Calvert (1907), 168 Ind. 321, 10 L.R.A. (N.S.) 780, 80 N.E. 961; Vandalia R. Co. v. State, ex rel. (1906), 166 Ind. 219, 117 Am. St. 370, 76 N.E. 980; Cleveland, etc., R. Co. v. Harrington (1892), 131 Ind. 426, 30 N.E. 37; Stone v. Mississippi (1879), 101 U.S. 814, 25 L.Ed. 1079; Boston Beer Co. v. Massachusetts (1877), 97 U.S. 25, 24 L.Ed. 989; Northwestern Fertilizing Co. v. Hyde Park (1878), 97 U.S. 659, 24 L.Ed. 1036; Board, etc., v. Phillips (1903), 67 Kan. 549, 73 P. 97, 100 Am. St. 475; 3 Elliott, Railroads (2d ed.) § 1082; Elliott, Roads and Sts. (2d. ed.) §§ 741, 742, 758.
But the legislature may delegate to a city or town the power of control over its streets. State, ex rel., v. Board, etc., supra; Town of New Castle v. Lake Erie etc., R. Co. (1900), 155 Ind. 18, 57 N.E. 516; Burkam v. Ohio, etc., R. Co. (1890), 122 Ind. 344, 23 N.E. 799.
The act in force when the ordinance in question was enacted reads as follows: "The common council shall have exclusive power over the streets, highways, alleys, and bridges within such city," etc. § 3161 R. S. 1881. This section was first amended in 1891 (Acts 1891 p. 122, § 3623 Burns 1894), and many details added. This power of exclusive control is a delegated power or trust, and if the legislature cannot surrender, alienate or contract away its legislative functions, its governmental and police powers, it, of course, cannot delegate to a city or town the right of surrender or alienation.
It is not an open question in this State that to cities is delegated the power...
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Grand Trunk & W. Ry. Co. v. City of South Bend
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