160 Ind. 45 | Ind. | 1903
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 its 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 23d 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
The following are, in the main, the facts set out in the alternative writ: There is a terminal of some fourteen 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 (Acts 1891, p. 137), 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 follows 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 eighty passenger trains, operated by the various companies named, pass over the said tracks of' defendant, which run east from said Union Station, every twenty-four 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
That not less than fifty-seven passenger trains, operated by the several companies named, arrive and depart from the west end of said station every twenty-four hours, many of them at short intervals, crossing Capitol avenue and Senate avenue at a high rate of speed; that 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 connecting that 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.
An examination of the facts set out in the petition and alternative writ disclose that the relator does not base the right which it seeks to enforce against the appellee upon the fifth clause of §5153 Burns 1901 of the general law relating to the organization and control of railroad companies, but founds the right which it claims and asserts upon the ordinance adopted by its common council, wherein the crossings as they are maintained are declared to be nuisances. The relator, under the circumstances, then, in maintaining the right which it claims, must stand or fall upon the ordinance which it advances in support of its claim. The question, therefore, with which we have to deal, 'is one relating
In State v. Gerhardt, 145 Ind. 439, 33 L. R. A. 313, this court, in speaking in regard to the extent of the police power, said: “The police power of a State is recognized by the courts to be one of wide sweep. It is exercised by the State in order to promote the health, safety, comfort, morals, and welfare of the public. The right to exercise this power is said to be inherent in the people in every free government. It is not a grant, derived from or under any written constitution. It is not, however, without limitation, and it can not be invoked so as to invade the fundamental rights of a citizen. As a general proposition, it may be asserted that it is the province of the legislature to decide when the exi
These well settled propositions, however, do not solve the question which confronts us in this appeal, for the inquiry still remains, has the legislature delegated to or conferred upon the relator herein any such power as will authorize that which it seeks to enforce under the ordinance in controversy? Counsel for appellant refer us to §23 (§3194: Burns 1901) of the act commonly known as the charter of the city of Indianapolis. It is claimed that under the -several provisions of that section ample power to deal with the problem presented has been conferred upon relator’s common council. This section provides that the common council shall have power to enact ordinances for the following purposes: “To declare what shall constitute a nuisance, to prevent the same, require its abatement, authorize the removal of the same by the proper officers, and provide for the punishment of the person or persons causing, continuing or suffering the same to exist, and to assess the expenses of its removal against such person or persons, and provide for collecting such expenses either by placing the same on the tax-duplicate or by suit. * * * To secure the safety of citizens and others, in the running of trains, in or ' through such city; to require persons or corporations, owning or operating railroads, to fence their respective railroads, to construct cattle-guards, street crossings, and viaducts, and public roads, and to keep the same in repair and safe condition for persons on foot, in vehicles, or otherwise; to keep flagmen at railroad crossings, and provide protection against injury to persons or property from the operation of said railroads. To authorize and require railroad companies to change the location, grade and crossings of their respective railroads; to compel them to raise or lower their railroad tracks to conform to any grade which may be established by such ordinance; to compel per
It can not in reason be asserted from the mere fact that the relator is invested with some of the police power of the State in regard to the running or operating of railroads within its corporate limits, that it necessarily follows, under the circumstances, that it has unlimited power to deal alike with all of appellee’s railroad crossings, and confine it to the particular or specific method or means of elevated tracks to be constructed by it at all of its crossings, regardless of the existing conditions and circumstances applicable thereto, in order to afford safety or protection to the public.
In regard to the power of the State to confer or delegate the extraordinary authority which the relator, under its charter, claims to have, we need not discuss nor decide, for that is not the question herein involved.
Under the provisions of §23, supra, by which the relator is empowered to require railroad companies to change the grade and crossings of their respective roads, and to raise or lower their tracks in order to conform to any grade which
The general rule is well affirmed that municipal corporations derive tlieir powers from the legislature, and where
The power of relator may he conceded, arguendo, either under its charter law or under clause 5 of §5153 Burns 1901, where any particular railroad crossing over its public streets hy reason of the peculiar or particular circumstances or conditions thereof can only he made safe for public travel thereover hy elevating the tracks of the road, to compel the railroad company to discharge such duty or obligation. But certainly such authority under the existing laws can not he extended hy construction so as to warrant the relator in coercing appellee to construct and maintain a system of elevated tracks for all of its various roads running into and through the city of Indianapolis. The ultimatum presented to appellee hy the ordinance in question was to remove the surface tracks of its roads, and construct and maintain elevated tracks over all of the crossings in the prescribed district, without regard to the conditions or circumstances of any particular crossing. The same means, without distinction, were to he provided for all crossings, irrespective of circumstances or conditions. This court, in Chicago, etc., R. Co. v. State, ex rel., 158 Ind. 189, quoted with approval §110Y of Elliott, Railroads, where the author says: “Each particular crossing presents different conditions, but the general rule governing all is the same, and that rule is that the company must erect whatever structures are reasonably necessary to the safety and convenience of the traveler using the crossing.”
The fact that relator’s common council, under the ordinance in controversy, has hy its own fiat declared all of
Judge Dillon, in the section last cited, in considering the powers of municipal corporations to declare and abate nuisances, properly says: “Such power, conferred in general terms, can not be taken to authorize the extrajudicial condemnation and destruction of that as a' nuisance which, in its nature, situation, or use, is not such.”
The crossings of appellee’s railroads over the public streets of the city were authorized by law, and if they are so maintained as to become nuisances that is a question of fact to be judicially determined upon a case properly presented. Counsel for appellant assert that the facts set out in the petition and alternative writ disclose such a condi
We have given this case a patient consideration, and have examined all of the authorities cited by appellant, and as a final conclusion we are constrained to adjudge that the relator had not, under the existing laws, the power to adopt the ordinance in question, and therefore is not untitled to the specific relief or right demanded.
The demurrer to the alternative writ of mandamus was properly sustained. Judgment affirmed.