Indianapolis & Eastern Railway Co. v. Town of New Castle
| Decision Date | 06 April 1909 |
| Docket Number | 6,346 |
| Citation | 87 N.E. 1067,43 Ind.App. 467 |
| Court | Indiana Appellate Court |
| Parties | INDIANAPOLIS & EASTERN RAILWAY COMPANY v. TOWN OF NEW CASTLE |
From Henry Circuit Court; John M. Morris, Judge.
Action by the Town of New Castle against the Indianapolis & Eastern Railway Company. From a judgment for plaintiff defendant appeals.
Reversed.
William A. Brown, W. H. Latta, J. P. Walker, Arthur C. Van Duyn Edward W. Felt and Elmer J. Binford, for appellant.
Beach & Mikels, for appellee.
This was an action instituted by appellee in the Henry Circuit Court for the recovery of the cost of paving that portion of a street lying between the ends of the ties of appellant's track. The complaint is in one paragraph, and proceeds upon the theory that appellant is liable for the cost of said improvement by virtue of the franchise granted to appellant by the board of trustees of said town on November 13, 1902, whereby appellant agreed that, in case any street occupied by said appellant was improved by graveling or paving, it would pay the cost of such improvement of that portion of such street lying between the ends of the ties of its track.
The complaint sets out in full the ordinance granting the franchise. It also shows that the street was ordered to be and was improved by paving, under the statutes of the State enacted for such purposes, that a demand was made on appellant to pay the same, and it refused to do so. A demurrer was filed to this complaint, which was overruled, and appellant answered by setting up the ordinance set out in the complaint, and then averring that on April 8, 1903, appellee, through its board of trustees, amended said ordinance by another which eliminated the contract to improve the streets, contained in the first ordinance, and which formed the basis of appellee's suit. Said answer also shows that, subsequently to the enactment of said original ordinance, appellant laid and temporarily constructed its tracks for the operation of a system of street-railway in the street afterwards improved; that said amended ordinance was passed prior to the commencement of such improvement; that said amended ordinance repealed and rendered ineffective said original ordinance, and, at the time said street was so improved, there was no agreement on the part of appellant to pay for any portion thereof. To this answer appellee filed a demurrer which was sustained, and appellant refusing to plead further, judgment was rendered in favor of appellee and against appellant. From this judgment appellant appeals.
The only error assigned and discussed is the sustaining of appellee's demurrer to appellant's answer.
The record shows that said original ordinance consisted of fourteen sections. It provided numerous restrictions upon the railway, as well as granting it a number of powers and rights. The amendatory ordinance is in nineteen sections, and reincorporates within its provisions the greater portion of the provisions of the original ordinance, and adds other restrictions and rights. The title of the amendatory ordinance is as follows:
"An ordinance amending sections of an ordinance entitled An ordinance granting the Indianapolis & Eastern Railway Company the right to construct, maintain and operate a street-railway upon the streets of the town of New Castle, Indiana,' passed and adopted by the board of trustees of the town of New Castle, Indiana, on November 13, 1902."
The first section of said ordinance is as follows:
Then follows the language of the original section.
No section of the original ordinance, as an entirety, is left out of the amendatory ordinance. A portion of each section, or the section as a whole, is reincorporated in the amendatory ordinance. The contract upon which this action is based is found in section three of the original ordinance. This section provides, in addition to such provision, that appellant may take up or alter any track or lay any track in any other street, as it may from time to time determine, but shall put the vacated street in as good condition for travel as it was before said track was taken up, and shall put the street in as good condition where the track is laid as it was before such track was laid; that it shall keep all that portion of the street lying between the ends of its ties in good repair. By section five of the amendatory ordinance these provisions are reenacted, with the further provision that said railroad shall keep and maintain the track in such a condition that the rails and ties of said track will not interfere with public travel more than is reasonably necessary to operate said railroad, and will not interfere with vehicles crossing over or driving upon said tracks. The substantial difference between said section three and said section five is that in section three there is an agreement to pay for the improvement of that portion of the street lying between the ends of the ties of appellant's track when the city shall improve such street, while in said section five no such agreement appears, and this agreement is not reenacted in any other section of the amendatory ordinance. It thus is made clearly to appear that the new ordinance was intended to supersede the old and embrace the entire regulations on the subject; the language of the first section being that the original ordinance "shall be amended to read as follows," clearly indicating that the amendments were intended to apply to the ordinance as a whole. Every subject in the original ordinance is covered by the amendatory ordinance, unless the improvement of streets which is included in a section for the repair of streets, should be called a subject. But the fact that all the other matters connected with this provision are specifically reenacted would clearly indicate that it was the intention of the parties to eliminate the contract for the payment of improvements. And while there is no provision in the amendatory ordinance that specifically declares that it shall stand as the only ordinance, or that specifically repeals any other ordinance, yet, under the well-settled rule, that where it clearly appears...
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