Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. The Town of Crown Point

• Decision Date: 16 December 1896
• Docket Number: 17,904
• Citation: 45 N.E. 587,146 Ind. 421
• Court: Indiana Supreme Court
• Parties: Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. The Town of Crown Point

45 N.E. 587

146 Ind. 421

Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. The Town of Crown Point

No. 17,904

Supreme Court of Indiana

December 16, 1896

From the Lake Circuit Court.

Reversed.

N. O Ross and J. B. Peterson, for appellant.

W. C McMahan, for appellee.

OPINION

Monks J.

The question involved in this appeal is as to the power of incorporated towns to compel, by ordinance, a railroad company to keep a watchman and erect and maintain gates at points where the tracks cross a street, and impose penalties for the failure so to do.

It is the law in this jurisdiction that municipal corporations possess and can exercise such powers only as are granted by the legislature in express words and those necessarily or fairly implied or incident to the powers expressly granted, and those essential to the declared objects and purposes of the corporation.

No incidental powers can be implied except such as are essential to the accomplishment of the purposes of their creation and for their continued existence. City of Shelbyville v. Cleveland, etc., R. W. Co., ante, 66, and authorities cited; Champer v. City of Greencastle, 138 Ind. 339, 35 N.E. 14, and cases cited; 1 Dillon Munic. Corp., sections 89, 90.

Doubtful claims to power or any doubt or ambiguity in the terms used by the legislature are resolved against the corporation. Minturn v. Larue, 23 Howard (U.S.) 435; Bloom v. Xenia, 32 Ohio St. 461; Ravenna v. Pennsylvania Co., 45 Ohio St. 118, 12 N.E. 445; Cooley's Const. Lim. 233, 234; 1 Dillon Munic. Corp., sections 89, 90, 91; Tiedeman on Munic. Corp., section 110.

It is also settled law that where the legislature in terms confers upon a municipal corporation the power to pass ordinances of a specified nature and character, and with precision defines the details of the same, and prescribes the penalties that may be imposed, if the power thus granted be not in conflict with the constitution, an ordinance within the powers granted, prescribing penalties within the designated limit, cannot be set aside by the courts because they may deem it unreasonable or against public policy. But where the power to legislate upon a given subject is granted, and the mode of its exercise and the details of such legislation are not prescribed, then the ordinance passed pursuant thereto must be a reasonable exercise of the power or it will be pronounced invalid. In other words, an ordinance expressly authorized by specific and definite legislative authority will be upheld unless it conflicts with the constitution, while an ordinance which the municipality seeks to uphold by virtue of its incidental powers, or under a general grant of authority, will be declared invalid, unless it be reasonable, fair and impartial, and not arbitrary or oppressive. City of Shelbyville v. Cleveland, etc., R. W. Co., supra, and authorities cited; Haynes v. City of Cape May, 50 N.J.L. 55, 13 A. 231; Hawes v. City of Chicago, 158 Ill. 653, 30 L. R. A. 225, 42 N.E. 373; City of Chicago v. Rumpff, 45 Ill. 90, 92 Am. Dec. 196; Ex parte Chin Yan, 60 Cal. 78; Davis v. Town of Anita, 73 Iowa 325, 35 N.W. 244; Burg v. Chicago, etc., R. W. Co., 90 Iowa 106, 48 Am. St. 419, 57 N.W. 680; Meyers v. Chicago, etc., R. R. Co., 57 Iowa 555, 42 Am. Rep. 50, 10 N.W. 896; Phillips v. City of Denver, 19 Colo. 179, 41 Am. St. 230, 34 P. 902; City of St. Paul v. Colter, 12 Minn. 41, 90 Am. Dec. 278; Evison v. Chicago, etc., R. W. Co., 45 Minn. 370, 48 N.W. 6; 1 Dillon Munic. Corp. 319, 330; Tiedeman Munic. Corp., section 110; Robinson v. Mayor, etc., 34 Am. Dec., note pp. 627, 643.

It is contended by appellee that section 4404 and clauses 4, 6, 9 and 16 of section 4357, Burns' R. S. 1894 (3367 and 3333, R. S. 1881), did grant the power in question. By section 4404, supra, the board of trustees of an incorporated town is given the "exclusive power over the streets, alleys, highways and bridges within the corporate limits of such town." Said clauses of section 4357, supra, are as follows:

"Fourth. To declare what shall constitute a nuisance, and to prevent, abate and remove the same; and to take such other measures for the preservation of the public health as they shall deem necessary.

"Sixth. * * * * to regulate or prohibit the use of firearms, fireworks or other things tending to endanger persons or property; to prevent interference with the free use of the streets and alleys of the town, and to preserve peace and good order and prevent vice and immorality.

"Ninth. To lay out, open, grade and otherwise improve the streets, alleys, sewers, sidewalks and crossings, and keep them in repair and vacate the same.

"Sixteenth. To make and establish such by-laws, ordinances and regulations not repugnant to the law of this state, as may be necessary to carry into effect the provisions of this act. * * *"

The question before us and which we are called upon to decide, is not whether the legislature, in the exercise of its broad police power, should compel railroads to keep watchmen and erect and maintain gates at their own expense at street crossings, nor is it whether the legislature should grant such power to incorporated towns, but it is whether the legislature has granted such power to incorporated towns.

It is clear said sections 4357 (3333) and 4404 (3367), supra, do not in express words grant the power to pass the ordinance in question.

Can such power be fairly implied from those expressly granted, or is such power essential to the declared objects or purpose of the corporation? We think not.

It may be admitted that incorporated towns have the power to regulate public travel upon the streets so as to make their use reasonably safe at all times for those who go upon them, and to enact ordinances for the protection of health, life and property.

It is true, that the persons and property of those who attempt to cross a railroad track are subject to risk....