State ex rel. City of Indianapolis v. Indianapolis Union Ry. Co.

• Decision Date: 04 February 1903
• Citation: 66 N.E. 163,160 Ind. 45
• Parties: STATE ex rel. CITY OF INDIANAPOLIS v. INDIANAPOLIS UNION RY. CO.
• Court: Indiana Supreme Court

160 Ind. 45

66 N.E. 163

STATE ex rel. CITY OF INDIANAPOLIS

v.INDIANAPOLIS UNION RY. CO.

Supreme Court of Indiana.

Feb. 4, 1903.

Appeal from superior court, Marion county; Vinson Carter, Judge.

Mandamus by the state, on the relation of the city of Indianapolis, against the Indianapolis Union Railway Company. From a judgment sustaining a demurrer to the alternative writ, relator appeals. Affirmed.John W. Kern and J. E. Bell, for appellant. Baker & Daniels, for appellee.

JORDAN, J.

The state of Indiana, on the relation of the city of Indianapolis, instituted and prosecuted this action in the lower court for a writ of mandamus, seeking thereby to coerce appellee, a corporation owning and controlling a series of railroad tracks in said city, to elevate these tracks at and between certain street crossings. An alternative writ of mandate was issued upon the petition filed. This writ contained all of the material facts averred and set out in the petition. The writ, as issued, commanded the defendant to commence, without delay, the work of removing its railroad tracks where the same crossed the streets named, and in lieu thereof to construct elevated railroad tracks “in such a manner as not to interfere with public travel on any of the streets named, and in compliance with the provisions of the ordinance of the common council of the city of Indianapolis, passed on the 23rd day of August, 1899.” In response to the alternative writ the appellee, defendant below, appeared and demurred thereto for insufficiency of facts. The demurrer was sustained, and judgment was rendered against the relator. Error is assigned on the ruling of the court in sustaining this demurrer, and the question presented in this appeal for our decision is, do the facts contained in the alternative writ entitle the relator to the specific right which it claims, or do they justify the command or order of the alternative writ? For the rule is well settled in mandamus proceedings that, on a demurrer to the alternative writ, the question presented or raised is not, as is the case in an ordinary action, whether the relator under the facts is entitled to some form of relief, but the question raised is as to whether he is entitled to the specific relief prayed for, or, in other words, can the specific order or command of the alternative writ under the facts therein averred be justified? Vide Merrill on Mandamus, §§ 255 and 256, and cases cited in support of the text. Applegate v. The State, 158 Ind. 119, 63 N. E. 16;State, etc., v. Commercial, etc., Co. (Ind. Sup.) 64 N. E. 466, and cases cited.

The following are, in the main, the facts set out in the alternative writ: There is a terminal of some 14 railroads within the city of Indianapolis, which is an incorporated city and contains a population of more than 100,000, and is acting under and controlled by the provisions of an act approved March 6, 1891, commonly known as the “Indianapolis Charter.” The defendant is a corporation organized and incorporated pursuant to the statutes governing the incorporation of union railway companies, and is now and has been for many years engaged in maintaining a union railway station in said city, and owning and controlling numerous railroad tracks in said station, extending east and west therefrom through a populous part of said city, across Meridian, Pennsylvania, Delaware, Alabama, New Jersey, and East streets on the east, and Capitol avenue, Senate avenue, and other streets on the west. That passing over said tracks, extending to the east of said Union Station, are all the passenger engines and tenders, and all the passenger, baggage, express, and mail cars, run and operated in and through said city by the following lines of railway: (Here follow an enumeration and statement or description of nine divisions of railroads which run into and through the city of Indianapolis.) It is alleged that not less than 80 passenger trains, operated by the various companies named, pass over the said tracks of defendant, which run east from said Union Station every 24 hours, which trains run at a high rate of speed, and cross the streets named, and that during certain times named the intervals between the passing of such trains are very short. The time of arrival and departure of all of these several trains at and from the Union Station is here set out. That passing over the tracks extending west from said station are all the passenger trains of the following lines of railroad: (a) The Chicago Division of the Big Four Railway Company, a thoroughfare extending from Indianapolis to Chicago, and connecting with the various other divisions of said road centering in Indianapolis. (b) The Peoria Division of said Big Four Railway, extending from Peoria, Ill., and connecting at Indianapolis with the other divisions of that railroad in said city. (c) The St. Louis Division of said Big Four Railway, extending from Indianapolis to St. Louis. (d) The Terre Haute & Indianapolis (commonly called the Vandalia) Railroad, which connects Indianapolis and St. Louis. (e) The Indiana, Decatur & Western Railroad, which runs from Indianapolis to Decatur, Ill., having eastern and western connections at terminal points. (f) The Indianapolis & Vincennes Railroad, operated by and as a part of the Pennsylvania Railroad system, extending from Indianapolis to Vincennes, having connections with other points. That not less than 57 passenger trains, operated by the several companies named, arrive and depart from the west end of said station every 24 hours, many of them at short intervals, crossing Capitol avenue and Senate avenue at a high rate of speed. The tracks over which said trains are run extend in a general easterly and westerly direction through the central part of said city. That the population of said city when said tracks were first laid was not to exceed 20,000; that said population is now about 180,000; that the principal thoroughfares of said city connectingthat part of the city south of the tracks with that part lying to the north thereof are the above-named streets, which are crossed by the tracks aforesaid; that the part of the city devoted to mercantile business, both wholesale and retail, is situated north of the tracks, while on the south side thereof there are large factories, and at least one-third of the entire population of said city resides on that side. The streets so crossed by said tracks are constantly used by the people of said city in passing backwards and forwards between the different parts thereof, from factories to stores and from residences to places of business, such streets being the principal thoroughfares for public travel; that in the necessary and proper movement of the people of said city in the transaction of their daily business, in the attending of schools by children, and the attending of churches and other public places by all, large numbers of men, women, and children are each day and night required to travel upon said streets where the same are crossed by defendant's tracks, and that no less than 40,000 people are compelled to and do pass daily on and over said tracks, such travel being by pedestrians and those driving in wagons and other vehicles. That when the trains aforesaid are running across such streets at the intervals above set out, some arriving and others departing, the engines emitting large volumes of smoke, the bells thereof ringing, the whistles thereon sounding, and all running at high speed, there is constant danger to the lives of all persons who are traveling in and upon any of such streets at such points of crossing. That within two years last past many inhabitants of said city have been killed at such crossings, and many more seriously injured by engines and cars running upon and against them while they were endeavoring to travel in said streets, as they had the right to do at the points aforesaid. That, by reason of the increased and increasing volume of railroad traffic, the necessity for more engines and cars and more constant use of said tracks is constantly increasing, while, by reason of the increase in the population of said city on both sides of said tracks, the necessity for more travel across such tracks is also constantly increasing, so that dangers to life and property by reason of such crossings are also increasing in corresponding proportion to such increase of railway traffic and population. That the continued existence of such tracks upon and over the streets named has become and is wholly inconsistent with the use of said streets for public travel, and said continued existence is a constant menace to the lives of all the people using the same at the points aforesaid. That it is necessary, in order to make such streets and highways at such crossings reasonably safe for the inhabitants of said city making proper use thereof, and for property being conveyed along the same, and to restore said streets so occupied by said tracks so that they may be safe and convenient for public travel that the surface of said streets should not be occupied by such tracks, or any tracks used for the passage of locomotive engines and railroad cars propelled by steam, and that such railway tracks should be removed from the surface of such streets with all reasonable dispatch. That the common council of said city, on August 23, 1899, recognizing the evils hereinbefore recited, attempted to remedy the same by the passage of an ordinance entitled “An ordinance for the restoration of highways and streets in the city of Indianapolis, whose surface is occupied by railroad tracks, by the removal of such tracks and for the removal of railroad tracks from the surface of streets and highways in such city; providing penalties for its violation, and fixing a time when the same shall take effect,”-which ordinance, being properly approved, took effect and is now in force. That, by reason of the facts hereinbefore recited and stated, the city...