The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1894-03-09
AN ORDINANCE VOID
Big Four Wins a Temporary Vie
tory in the Sidewalk Case.
Violations Must Be Prosecuted Under the
State Law, Says Judge Brown
Conflict with Statute.

In an opinion yesterday in the Big Four
sidewalk litigation Judge Brown, of the Cir
cult Court, gave the railroad company a
temporary victory. The case involved the
possession of a strip of sidewalk on South
Delaware street running parallel and at the
side OF the Big Four freight offices. The
city brought suit against John Higgins,
drayman, for driving over the walk. The
case was appealed from the Police Court
by the railroad company and went into the
Circuit Court as a test case. In his decis-
ion Judge Brown virtually holds that the
city ordinance providing for this class of
offense is invalid. The point raised by Judge
Elliott for the defense to the effect that that
ordinance was adopted in violation of law and
Is wholly imperative and void because there
is already State law covering the offense
sustained by the court which said in
substances:
''It is the law of Indiana that when an
act is punishable by q State statute IL must
be prosecuted by the State. That law would
prevent city from prosecuting an oHense
which originated under state statute 1t
is claimed by the defense that the prosecu-
ton can only be brought by the State be-
cause the offense is punishable by one OF OF
the State statutes. The law in question is
an amendment to an act passed in 1883 en-
titled AN act for the protection of side
walks in towns and villages and the preser-
walton OF SfaQe trees planted along the
same That is conceded by counsel for the
defense to apply only to towns and vii
lagos. In 1861 the Legislature passed an
amendatory act of the act of 1883. the title
of which is as follows: An act to amend
the first section of an act for the protec
ton of sidewalks in towns and villages and
the preservation of shade trees planted
along the same (Affrmed March 3. 1889
so to protect sidewalks outside of towns
and villages And the act as as, amended me
person to ride or drive unless in
the necessary act of crossing the same
1T Is claimed by the defendant that the
words or upon any similar sidewalk for
the use of foot passengers by the side of
any public highway in the State unless in
brings all the cities, as well as the towns
and villages, under the purview of the
statute; that any one who drives across the
sidewalk of city is punishable by the State
statutes The words public highway are
used in this statute. II is contended by the
defense that street is a highway, and the
ton. 1t seems TO me that the only ques-
ton Is is the statute broad enough 10 in
the side of any public highway in the
State and the title reads. ito protect side
walks outside of towns and villages 1t is
contended by counsel for the prosecution
that 1t was certainly not the intention of
the General Assembly to legislate in regard
to cities. using as 1t did the word high
way which is a. term usually applied to
rural roads. They contend that it was also
delegated to cities the right TO control their
streets anu the right 10 puhSn the OBJ
structing of streets. and that the words
outside of towns and villages and the
words of the statute in this State unless
in the necessary act of crossing has refer
ence to ways outside of towns or villages
in the country districts-rural ways. The
only question for the court to determine is
whether this statute is broad enough to in
Clude cities. 1t seems to me that ii is In
dianapols is in the State and comes within
the purView of the law in my Judgment
If that is So this offense is punishable under
the state statute. If IL is punishable by
State statute there cannot be a double pun
ishment In that view of the law the court
sustains the objections TO the Introduction
Of the ordinance"
City Attorney Scott thought that the case
had been so thoroughly covered by the rul-
ing of the court that il would be useless
TO proceed with the trial. The jury was
dismissed and the city took an exception to
the ruling of the court