174 Ind. 203 | Ind. | 1909
Lead Opinion
This suit was brought by appellant against the city of South Bend and certain of its officers, to enjoin them from interfering with appellant in its attempt today a second
The errors assigned are the sustaining of each and all of the demurrers to the amended complaint.
After the preliminary allegations of the complaint, it appears from the first paragraph thereof that on or about October 24, 1866, the city of South Bend, by William G. George, mayor, and fourteen individuals, executed articles of association, to incorporate, for the purpose of building, owning and operating, a railroad to be known as the “Peninsular Railroad Company of Indiana,” running from the north line of the State of Indiana through South Bend, and thence in the direction of Chicago, and to be about eighty-five miles long; that the articles of association were filed on December 10, 1866; that on March 2, 1868, the common council of the city of South Bend enacted an ordinance, No. 62, whereby authority was given, granted and duly vested in the Peninsular Railroad Company of Indiana to construct and maintain a track for its said railroad within the city of South Bend upon the following terms, to wit: ‘ ‘ Commencing at the eastern limits of said city, at the east end of a twenty-foot street laid out and dedicated on the south side of Samuel Gottrell’s addition to the town of Lowell, or at a point on said twenty-foot street that the company might see proper to adopt, thence across the St. Joseph river to the eastern end of the extension of Division street, and its extension in said city so far as said company might desire, crossing all intermediate streets and alleys, and to run locomotive cars and trains over said road so far as might be necessary for
The second paragraph of complaint is the same as the first, so far as any question involved in this appeal is concerned. The only material difference is as to the manner of acquisition by appellant, of the rights, franchises and property of the original company, and no question is raised by appellees as to that matter. There is the additional allegation in the second paragraph that appellant, supposing its title in all respects perfect, kept up and maintained its line through Division street, and expended on the whole line of railroad $1,000,000.
The questions which need to be here decided are: (1) Did appellant as successor to the rights and privileges of the original Peninsular Railroad Company of Indiana acquire, by virtue of the grant contained in ordinance No. 62 of the common council of the city of South Bend, the right to lay an additional track on Division street between Michigan and General Taylor streets'? and (2) if it obtained that right under
In the case of Snouffer v. Cedar Rapids, etc., City R. Co. (1902), 118 Iowa 287, 92 N. W. 79, the ordinance authorizing the laying of a track in a street had been in force six years, and had been availed of as to other streets, but no track had been laid on the particular street, when the ordinance was repealed, and it was held that while the right of control cannot be exercised arbitrarily or unreasonably, the council could not pass an irrevocable ordinance, for the reason that it is the trustee for the public, and cannot abridge its legislative powers. The case is an instructive one, and strongly in point here. In the ease at bar, the ordinance had been in force over thirty-eight years, without any avail being made of it, or any money expended with a view to double-tracking, so far as any allegation of the complaint discloses.
The learned counsel for appellant direct our attention to the cases of Africa v. Board, etc. (1895), 70 Fed. 729, and People’s Passenger R. Co. v. Baldwin (1880), 14 Phila. 231. We add the case of Hestonville, etc., Co. v. City of
Appellant urges that the cases of Lake Roland, etc., R. Co. v. Mayor, etc., supra, and Mayor, etc., v. Baltimore Trust, etc., Co., supra, are not in point, because as said, “the state court found and held that the power of the city council to amend or modify its ordinance was expressly retained in the statute of the state authorizing the passage of such ordinance.” We do not understand the court so to hold or declare, except in so far as the power to legislate in the future is an inalienable and continuing power, to be exercised when the necessity may arise, and that this is a reserve power in the legislature and in the city council. Cases involving the effect upon the abutting property, and individual rights, of third persons are cited and relied upon, but they have no relevancy here, w’here the question is solely one of public interest, and of power in the city council as trustee for the public.
The judgment is affirmed.
Rehearing
On Petition for Rehearing.
It is claimed that the court has ignored the rule in White v. Chicago, etc., R. Co. (1890), 122 Ind. 317, 7 L. R. A. 257. That case presented the one question of damages to an abutting' owner, and no questions as to the police or legislative power of the city, as to the width of the street, the degree of interference with its use, or the sufficiency of the unoccupied portion for the usual purposes of a street were presented or decided.
It is urged that our opinion is not supported by the cases of Lake Roland, etc., R. Co. v. Mayor, etc. (1893), 77 Md. 352, 26 Atl. 510, 20 L. R. A. 126, and Mayor, etc., v. Baltimore Trust, etc., Co. (1897), 166 U. S. 673, 17 Sup. Ct. 696, 41 L. Ed. 1160, for the reason that both eases arose under the same ordinance, and “the state court found and held that
The petition for a rehearing is overruled.