The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1901-01-31
JUDGE CARRIERS RULING
HOLDS THAT THE ELEVATED TRACK
ORDINANCE Is INVALID.
Legislature Must Delegate New Au-
thorify to the City-RaiIway Conn
pany's Demurrer Sustained.

nance is invalid IN sustaining the demurrer
of the Union Railway Company to the
complaint of the city TO compel the COM
pany TO elevate its tracks. He held that
the Legislature did not give the city power
in its charter to pass laws that would
change the entire railway system. involving
an expenditure Of hundreds of thousands
Of dollars. However. he said the Legisla-
ture delegate such power TO the city.
In part the decision reads:
THAT the State has the power to COM
pei the elevation of tracks by railroad
company as a police power is not denied.
That the State may delegate this power
to a municipal corporation cannot be ques-
toned
'In the absence of such a delegation Of
power by the State the city has no power
to move in the matter. BY the ordinance
in controversy the city has attempted and
is in this action attempting to exercise
that power. The question with which we
have to deal is whether the State has dele
gated such power to the city.
Plaintiff claims that the power Of the
State has been delegated to the city by
Section % of the Indianapolis charter.
'AIl these grants of power manifestly
apply to railroads as they have heretofore
existed. to wit, surface railroads There
Is no suggestion anywhere of any inten-
ton to change the entire system in the
city from surface TO elevated railroads.
The nearest any one of them approaches
to a suggestion on that subject is the one
which gives the power 10 compel railroad
company to raise or lower it's tracks SO as
to conform to any grade established by
such ordinance. and IL under this clause
the city could either compel or permit the
erection of elevated tracks then it could
also compel the tracks TO be put under
ground but such clause on its face shows
that no such power was intended. The
raising or lowering is only TO the extent
that the tracks shall conform to any grade
established, etc. The grade here referred
to is manifestly the grade OF the street
crossed by the tracks.
CITY'S POWER DEFINED
THAT the city has power to declare a
crossing a nuisance and require it's re-
moval falls far short of being an author
ity to establish a system of elevated tracks.
The power to require viaducts or bridges
does not mean the elevation of tracks over
the highways. but the elevation Of the high
ways over the tracks. The power to Sc
cure the safety of citizens and others in
the running Of trains refers only to the
speed of trains, the erection of gates,
guards, etc., and things of like nature.
Another reason which leads me TO the
conclusion that the elevation of tracks
was not contemplated or intended by the
lowers granted in Section % of the char
ter, is that the change from a surface
railroad TO an elevated railroad is so vast
ana radical change that IL cannot be
considered to be the same kind OF an en-
terprise.
of z1o
different in its operations and it's relations
to the public and the abutting property
owners that ii is a matter of most seri-
Gus doubt as to whether under a law au-
thorizing a surface road, an elevated road
could be built.
"A municipality should not assume the
| exercise OF a power so far-reaching in its
results as the elevation of all railroad
| tracks in the city to a hight of sixteen feet
| or more, unless the delegation of such
power be given In clear, explicit and unmis
taxable terms.
az do not doubt the power of the State
| to compel the elevation Of the defendant:
| tracks, nor do doubt that that power may
| be delegated to the city by appropriat t.
| legislation, but what hold Is that it has
not done SO in the city charter. and thai
| SO much Of the ordinance in controversy
| as contemplated the elevation Of the tracks
| is void, for want of power in the Common
| Council TO enact 1t.
'It is also claimed that. irrespective q
| urder Subdivision in Section IL. of tn,
| general railroad law, TO compel track ele.
| walton. That section requires railroad
| crossing a highway to restore the high
| way to its former condition. This Law
| was enacted in respect to surface rail
ways and the most that can be said of II
| Is that II requires the crossing TO be re-
stored in all respects consistent with tn,
| fact that Ii is a railway crossing. Surely
| the Legislature did not intend thereby tC
grant the power TO elevate the track:
| over all railway crossings throughout tn,
| State.
WHERE THE UNSAFETY LIES.
u 'It is not claimed in the complaint in
| this case that there is any defect in the
manner in which the crossings in contro
versy have been made. There is no claim
| that any of them are out of repair. So fal
| as it appears from the complaint, the cross
| ings have been restored just as fully as Il
| is possible to make them and still retain
| them as grade crossings. Their unsafety
| arises, not from inherent defects, but from
| the large travel over the same by citizens
| and others, and the frequency with which
| trains and cars pass over the same.
THE remedy can only be had by sepa
| rating the railway tracks from the streets
| by passing the street or roadway over the
| tracks by viaduct or underground tunnel
| or TO elevate the entire system Of tracks
| The general railroad law contemplated
| either a viaduct or tunnel, but it 1:
| discretionary with the company TO resor
| to that one which the directors may deem
most expedient.
THE city charter also provides that tn,
| city may require either yiaduct or tunnel
| but neither the general law nor the city
charter contemplateS the elevation o
| the railroad tracks above the grade o.
the highway or street.
"And, as I have already stated, in tn,
| absence of a statute specifically delegat
/ ing to the city the power to require TIT
/ railroad company to elevate it's tracks
| IL has no power to do So
| For the foregoing reasons. I think tn,
I demurrer TO the complaint should be sus
| tanned. and il is so ordered,