Town of Walkerton v. New York, C. & St. L. R. Co.

• Decision Date: 31 January 1939
• Docket Number: 27096.
• Citation: 18 N.E.2d 799,215 Ind. 206
• Court: Indiana Supreme Court
• Parties: TOWN OF WALKERTON v. NEW YORK, C. & ST. L. R. CO.

18 N.E.2d 799

215 Ind. 206

TOWN OF WALKERTON v. NEW YORK, C. & ST. L. R. CO.

No. 27096.

Supreme Court of Indiana

January 31, 1939

Appeal from La Porte Circuit Court; Wirt Worden, Judge.

Henry M. Dowling, of Indianapolis, and Roy Sheneman, of Walkerton for appellant.

Hickey & Dilworth, of La Porte, E. M. Smith, of Cleveland, Ohio McHale, Arthur & Myers, of Logansport, and Harker &amp Irwin, of Frankfort, for appellee.

SHAKE Judge.

On September 5, 1930, the board of trustees of the town of Walkerton adopted four separate resolutions by which said board declared that the crossings at Fourth, Fifth, Seventh, and Eighth Streets in said town, where said streets were intersected by the tracks of the New York, Chicago and St. Louis Railroad Company, were dangerous to citizens and other persons using the same, and that it was necessary that electric flash light alarm signals be installed by said railroad company at each of said crossings. The resolutions required the railroad company to construct and install said signals and have the same in service by February 15, 1931; and it was provided that upon the failure of the railroad company to comply therewith it should be fined and should forfeit to the town the sum of $10 for each and every offense, and that each day of such failure should constitute a separate and distinct offense.

On December 14, 1931, the town instituted an action against the railroad company to recover penalties for its failure to comply with the resolutions. The complaint is in four paragraphs, the action being predicated upon the alleged violation of each of said resolutions. Each paragraph claims damages in the sum of $3,000. The railroad company demurred to the complaint and to each paragraph thereof for want of facts. The demurrer was sustained by the court below. The town stood on its complaint and prosecuted an appeal to this court. The cause was reversed on March 6, 1936, for error of the lower court in sustaining the demurrer to the complaint. The former appeal is reported as Town of Walkerton v. New York, Chicago & St. Louis Railroad Co., 1936, 210 Ind. 175, 200 N.E. 243.

Pursuant to the mandate of this court the demurrer to the complaint was overruled, whereupon the railroad company filed a separate answer in seven paragraphs to each of the four paragraphs of complaint. The first paragraph of each of the separate answers is in general denial; the others are affirmative in character. Since the several paragraphs of answer were not attacked by demurrer, or otherwise, we may summarize their contents as follows: They allege, in substance, that the town board of Walkerton is without jurisdiction to require signal lights at the crossings; that the resolutions adopted by the town board are unreasonable, unjust, discriminatory, impossible of performance, uncertain, and void; that there is no need or occasion for electric flash light alarm signals to be installed and maintained at the several intersections referred to in the resolutions; that the resolutions are not ordinances, and that the town has no authority to fix or establish penalties by resolutions; that the resolutions and the demands made pursuant thereto are unconstitutional because the railroad company is denied due process and the equal protection of the laws; that its property is about to be taken without just compensation; that an unreasonable and unnecessary burden is placed upon interstate commerce; that the requirements of the resolutions and their enforcement will interfere with the operation of the railroad in such a manner as to result in confiscation; and that the penalties imposed are unreasonable and calculated to intimidate the railroad company and prevent it from testing the validity of the resolutions or seeking a judicial construction of the provisions thereof. The town filed replies in general denial to the answers of the railroad company, putting the case at issue.

Thereafter, the town asked leave to file a supplemental complaint in four paragraphs, by which it sought to recover what may be termed the accumulated penalties which had accrued against the railroad company during the pendency of the action, aggregating $115,000. The railroad company objected to the filing of the supplemental complaint, which objection was sustained, and the filing thereof denied.

The parties entered upon a trial before a jury. At the conclusion of the evidence the town requested a peremptory instruction in its favor; this was denied, and the court, on its own motion, instructed and directed the jury as follows: 'The jury is now instructed that the only question raised by the pleadings and the evidence in this case is the constitutionality of each and all of the resolutions passed by the Town Board of the town of Walkerton as set forth in paragraphs one, two, three and four of the complaint herein, and that the question of the constitutionality of said resolutions is a matter to be determined by the court instead of the jury. That the court has determined that the resolutions referred to in paragraphs one, two and three of the complaint are unconstitutional, and that the resolution referred to in paragraph four of the complaint is constitutional.' The court then directed the jury to find for the railroad company on paragraphs one, two, and three of the complaint, and to find for the town on paragraph four thereof with damages in the sum of $3,020. This was done and judgment was rendered accordingly. The town filed a motion for a new trial, which was overruled, and it has appealed. The railroad company has not assigned cross-errors on the judgment rendered against it on the fourth paragraph of complaint.

The point is made that the resolutions adopted by the town board are not ordinances and that penalties can not be imposed by resolutions. The distinctions sought to be made in the instant case seem to us to be matters of form rather than of substance. The statute (§ 48-301, Burns' Ann.St.1933, Sec. 11358, Baldwin's Ind.St.1934) authorizes the board to act in the premises by the adoption of resolutions, and it so denominated its action. We think there was a substantial compliance with the statute in this regard. Town ordinances fixing penalties are required to be published and this was done (§ 48-301, Burns' 1933, Cl. 20, Sec. 11358, Cl. 20, Baldwin's Ind.St.1934). As to matters of form, the terms 'resolutions' and 'ordinances' are frequently used interchangeably and, at most, an ordinance merely connotes a more formal and solemn declaration. A resolution passed with all the formalities required for passing ordinances may operate as an ordinance regardless of the name by which it is called. 43 C.J., p. 519. We hold that the documents with which we are here concerned may be treated as resolutions in the sense used in the statute conferring authority on the town board to adopt resolutions, and as ordinances insofar as they impose penalties.

Municipal ordinances have the force of statutes in the jurisdiction wherein they operate. Their adoption is clearly an exercise of the legislative power. Windle v. City of Valparaiso, 1916, 62 Ind.App. 342, 113 N.E. 429. It is a fundamental maxim of constitutional law that the legislature of a state, having been invested by the people constituting the sovereign, with its general lawmaking power, must hold and itself exercise that function of government. Board, etc., v. Jewett, 1915, 184 Ind. 63, 69, 110 N.E. 553. It has accordingly been said that the state legislature has no authority to delegate its legislative power,...