Morris v. City of Indianapolis
| Decision Date | 07 April 1911 |
| Docket Number | 21,503 |
| Citation | 94 N.E. 705,177 Ind. 369 |
| Parties | Morris et al. v. City of Indianapolis et al |
| Court | Indiana Supreme Court |
Rehearing Denied April 23, 1912.
From Superior Court of Marion County (76,735); James M. Leathers Judge.
Proceedings by the City of Indianapolis to abolish certain railroad grade crossings. Edward Morris and others remonstrated against the assessment of damages by the board of public works of said city. From a judgment for said city and the railroad companies, the remonstrants appeal.
Affirmed.
Addison C. Harris, John E. Scott and Lew Wallace, for appellants.
F. E Matson, Corporation Counsel, Elam, Fesler & Elam, F. Winter, Baker & Daniels, S. O. Pickens, C. D. Bowen, J. H. Pierce, Edward B. Raub, Leonard J. Hackney, and Frank L. Littleton, for appellees.
OPINION
This action arose under an act of the legislature approved and in force on March 3, 1905, and known as the Indianapolis track elevation law (Acts 1905 p. 144, §§ 8864-8872 Burns 1908). It is entitled "An Act to provide for the alteration of steam railroad grade crossings, and to secure the depression or elevation of steam railroad tracks where the same cross streets or highways in cities of more than one hundred thousand population according to the last preceding United States census, and authorizing the opening, change and vacation of streets and other highways and change of grades thereof in connection therewith; providing for the payment of the cost of such improvement by railroad companies, street railway companies, and the city and county in which such city is located, and incorporated towns lying within and surrounded by the corporate limits of such city." In § 9 of said act it is declared that the act shall be supplemental to an act of 1891 (Acts 1891 p. 137), concerning the incorporation and government of cities having more than 100,000 population, etc., and to all acts amendatory and supplemental to the aforesaid act.
By § 1 of said act of 1905 (§ 8864 Burns 1908) it is provided that the board of public works of any city of more than one hundred thousand population, according to the last preceding United States census, may, upon a petition therefor, or upon its own initiative, adopt a resolution for the alteration of any grade crossing or crossings of any steam railroad track or tracks, and any highway or highways in said city and the approaches thereto, or for the elevation or depression of the steam railroad track or tracks crossing any highway or highways in said city. It is provided that on the adoption of said resolution the board shall cause notice thereof to be published in some daily newspaper, showing the day on which the board shall receive and hear remonstrances from persons interested in and affected by such improvement, and when it will determine the public necessity and convenience thereof. On the day fixed for hearing, it is provided that the board of public works shall consider remonstrances, if any, and shall take final action in the matter, and shall confirm, modify or rescind its original resolution. Provision is made for service of notice on some resident agent or officer of any steam railroad or street railway whose tracks are affected by such proceeding, and on the county commissioners of the county in which such city is located, and also on the town clerk of any incorporated town lying within or surrounded by the corporate limits of such city.
By § 2 of said act (§ 8865 Burns 1908) it is provided, among other things, that the board of public works, at the hearing provided for, shall determine the relative amount of such improvement equitably to be borne by each railroad company, and that the expense to be borne by all the parties interested shall include any expense which may be incurred by reason of lowering the grade of any street, alley or other highway, and the construction and reconstruction of the pavement of the entire width of the street, including sidewalks, and the alteration and construction of necessary drains required by such separation of grades; and said board is also to determine "the damages, if any, recoverable under existing law by any person, firm or corporation on account of such elevation or depression of tracks, and the cost of the elevation or depression of the railroad track or tracks, except the cost of the ties, ballast and rails of the railroad track or tracks or street railway tracks and the expense of relaying and reconstructing the same." And the expense is to include a certain portion of the compensation of the city civil engineer. It is further provided in said § 2 that the steam railroad or railroads, whose tracks are affected, shall pay seventy-five per cent of such total cost. Where such crossing is occupied by the track or tracks of any street railway company, such street railway company shall pay five per cent of such total cost. Where both street railway tracks and steam railroad tracks occupy said crossing, the city shall pay fourteen per cent, and the county in which said city is located shall pay six per cent of such total cost. Where such steam railroad track or tracks cross any street, avenue or other public way at which there are no street railway tracks, the city shall pay seventeen per cent and the county in which said city is located eight per cent of such total cost. In ascertaining the total cost of separating the highway and steam railroad grades at a crossing, where the highway is occupied by street railroad tracks, of which five per cent may be apportioned as aforesaid to the street railway company, the cost of elevating or depressing the steam railroad tracks shall be taken into account only from the center of such crossing to a distance of 200 feet in each direction.
By § 5 of said act (§ 8868 Burns 1908) it is provided that the board of public works shall provide in such proceeding for the opening, laying out, change or vacation of any street or other public way which may be required by such separation of grades, and the proceedings in relation thereto shall conform, as nearly as possible, to those provided by the law governing cities of such class. It is provided that said board shall likewise determine the damages, if any, which may be recoverable under existing law by any person, firm or corporation on account of such elevation or depression of tracks; that on the preparation of a list of assessments of damages, said board shall cause a written notice to be served on the owner of each piece of property, showing the amount of such assessment, etc. In said notice, a date not earlier than ten days after receipt of the notice, or after the last publication, in case of publication, shall be fixed when the board will receive and hear remonstrances from any person or corporation touching the assessment of damages. On the day of said hearing the board shall consider said assessment and remonstrances, if any, and modify or confirm said assessments, which shall be final and binding, except that any person or corporation thus remonstrating may, within twenty days thereafter, take an appeal to the superior court in the county in which said city is located, and have said assessment, in so far as it affects the person appealing, tried and determined in such court, from the decree of which an appeal may be taken to the Supreme Court or the Appellate Court, as in other cases.
After the taking effect of this act, the board of public works of the city of Indianapolis--that city being within the class containing a population of more than one hundred thousand--initiated proceedings, by resolution, providing for the elevation and depression of steam railroad tracks within said city. This resolution was, on May 12, 1905, adopted by the board. It named the several streets of the city, among which was Kentucky avenue, on which the work of improvement in the manner as designated in said resolution was to be done. A date for hearing remonstrances from any and all persons, firms, corporations, etc., touching the assessment of damages, was fixed by the board. So far as the record discloses, it appears that all the necessary steps required by the statute were taken. The damages assessed by the board in favor of appellants were $ 10.
Subsequently, they, among others, appeared before the board, and filed separately and severally written objections and remonstrances to the award of damages as made by the board in their favor, and also objected to the authority and jurisdiction of said board of public works, insisting that the board was without jurisdiction to make the assessment, and alleging that the statute under which they were acting was invalid, both under the state and federal Constitutions.
After hearing the evidence presented by appellants in support of their remonstrances, and after having fully considered the assessments made, the board of public works finally, on August 10, 1908, overruled the remonstrances of appellants and others, and in all things confirmed and approved the assessments, to which decision and ruling of the board appellants excepted, and gave notice of an appeal to the Superior Court of Marion County.
An appeal from the decision of the board was finally taken by appellants and others to the Superior Court of Marion County within the time fixed by § 5, supra. In addition to the appeal, taken as authorized by the latter statute by filing in the superior court, a transcript of the proceedings had before the board of public works, appellants and others appear to have filed in that court an original complaint, which professes to set up the facts in the case and the proceedings had before the board of public works. This latter complaint is said to be based on § 102 of the general act of 1905,...
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