Southern Indiana Ry. Co. v. City of Bedford

• Court: Indiana Supreme Court
• Writing for the Court: MONKS
• Citation: Southern Indiana Ry. Co. v. City of Bedford, 165 Ind. 272, 75 N.E. 268 (Ind. 1905)
• Decision Date: 03 October 1905
• Docket Number: No. 20,558.,20,558.
• Parties: SOUTHERN INDIANA RY. CO. v. CITY OF BEDFORD.

165 Ind. 272

75 N.E. 268

SOUTHERN INDIANA RY. CO.

v.CITY OF BEDFORD.

No. 20,558.

Supreme Court of Indiana.

Oct. 3, 1905.

Appeal from Circuit Court, Lawrence County; James B. Wilson, Judge.

Action by the Southern Indiana Railway Company against the city of Bedford. Judgment for defendant, and plaintiff appeals. Reversed.F. M. Trissal and Brooks & Brooks, for appellant.

MONKS, C. J.

The city of Bedford on November 20, 1900, passed an ordinance which provided that “the Southern Indiana Railway Company be and the said company is required to employ and station an adult male guard or flagman at the intersection of Fifth street in said city with the track or tracks of said company. It shall be the duty of said guard or flagman to warn all persons on foot or in vehicles of all trains, engines or detached cars at said crossing, and to so guard said crossing between the hours of 7 o'clock a. m. and 9 o'clock p. m. of each and every day of the year, and it shall be the duty of said company to furnish said guard or flagman a suitable flag for use in daytime, and a suitable lantern for use at night.” It is provided in another section of said ordinance that the company shall be fined not less than $10 nor more than $50 for “each and every day it shall fail to comply with the provisions of said ordinance.” Appellant insists here, as it did in the court below, that said ordinance is an unreasonable exercise of the power granted by the Legislature, and therefore void. The court below held that said ordinance was valid, and rendered judgment against appellant.

Clause 42, § 3541, Burns' Ann. St. 1901, provides that the common council of cities shall have the power to “provide by ordinance for the security of citizens and others from the running of trains through any city, and to require railroad corporations to observe the same.” As the power granted is to legislate upon the subject named, and the mode of its exercise and the details thereof are not prescribed, the ordinance will be declared invalid, unless it be reasonable, fair, and impartial, and not arbitrary or oppressive. Pittsburg, etc., Ry. Co. v. Town of Crown Point, 146 Ind. 421-423, 45 N. E. 587, 35 L. R. A. 684, and authorities cited; City of Shelbyville v. Cleveland, etc., Ry. Co., 146 Ind. 66, 69-73, 44 N. E. 929; 1 Smith on Municipal Corp. §§ 95, 527; 1 Dillon, Municipal Corp. (4th Ed.) §§ 319, 328, 330; Tiedeman on Municipal Corp. § 110; 21 Am. & Eng. Ency. of Law (2d Ed.) pp. 985, 989. It appears from the record, as stated in appellant's brief, that said tracks which cross Fifth street were used for switching cars to and from the main track for the benefit of the several industries located thereon, and that they were not...