Indianapolis & E. Ry. Co. v. Town of New Castle

• Decision Date: 06 April 1909
• Docket Number: No. 6,346.,6,346.
• Citation: 43 Ind.App. 467,87 N.E. 1067
• Court: Indiana Appellate Court
• Parties: INDIANAPOLIS & E. RY. CO. v. TOWN OF NEW CASTLE.

43 Ind.App. 467

87 N.E. 1067

INDIANAPOLIS & E. RY. CO.

v.TOWN OF NEW CASTLE.

No. 6,346.

Appellate Court of Indiana, Division No. 1.

April 6, 1909.

Appeal from Circuit Court, Henry County; John M. Morris, Judge.

Action by the Town of New Castle against the Indianapolis & Eastern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.Felt & Binford, Wm. A. Brown, Will H. Latta, Arthur C. Van Duyn, and Jonas P. Walker, for appellant. Beach & Mikels, for appellee.

HADLEY, J.

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 its franchise granted appellant by the board of trustees of said town on the 13th day of November, 1902, whereby appellant agreed that, in case any street occupied by said appellant was improved by graveling or paving, said appellant should 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 said ordinance or franchise in full. 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, and demand of the appellant to pay the same and its refusal to do so. A demurrer was filed to this complaint, which was overruled, and appellant answered by setting up the ordinance or franchise set out in the complaint, and then averring that afterwards, on the 8th of April, 1903, appellee, through its board of trustees, amended said ordinance by another ordinance 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 subsequent to the enactment of said original ordinance appellant laid and temporarily constructed its tracks for the operation of the 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that said amended ordinance was passed prior to the commencement of such improvement; that said amended ordinance repealed and rendered ineffective said original ordinance, and, at the time said street was so improved, there was no agreement on the part of appellant to pay therefor or any portion thereof. To this answer appellee demurred, which demurrer 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 the original ordinance consisted of 14 sections. It provided numerous restrictions upon the railway as well as granting it a number of powers and rights. The amendatory ordinance is in 19 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 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 the 13th day of November, 1902.” And the first section of said ordinance is as follows:

“Section 1. Be it ordained by the board of trustees of the town of New Castle, Henry county, Indiana, that an ordinance entitled ‘An ordinance granting Indianapolis & Eastern Railway Company right to construct, maintain and operate a street railway upon the streets of the town of New Castle, Indiana,’ passed and adopted by said board of trustees on the 13th day of November, 1902, be and the same is hereby amended to read as follows, to wit:

“‘An ordinance authorizing the construction, maintenance and operation of a street and interurban railway in the Town of New Castle, Henry County, Indiana.

“‘Section 1. Be it ordained by the board of trustees of the town of New Castle, Henry county, Indiana, that consent, permission and authority be and are hereby given and granted unto Indianapolis & Eastern Railway Company, its successors and assigns, to locate, survey, construct, own, maintain and operate a single or double track standard gauge street and interurban railway with the necessary sidetracks, switches, turnouts, and turntables,”’ etc.

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 suit is based is found in section 3 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 5 of the amendatory ordinance these provisions are re-enacted with the further provision that said railroad shall keep and maintain the track in a condition so that the rails and ties of said track shall not interfere with public travel more than is reasonably necessary to operate said railroad, and not to interfere with crossing of or driving upon said tracks by vehicles; the substantial difference between said section 3 and said section 5 being that in section 3 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 5 no such agreement appears, and this agreement is not re-enacted in any other section of the amendatory ordinance. It thus is made to clearly 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...