The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1903-02-05
SUPREME COURTS OPINION
Holds that City Has Not Power to
COmpeI Elevation.

III the track elevation caSe-knOWn as the
city OF Indianapolis against the Union Rail-
way Company-and held that the ordinance
under which the city endeavored to man
date the railroad companies was not valid.
The Supreme Courts decision was unani-
nous and the opinion was written by Judge
Jordan. 1t covers sixteen typewriter
pages The decision holds that the Legis-
lature has not vested in the city of Indian
apolis power to perfect a system for ele-
waiting all the railroad tracks within GER
tain districts, pass ordinance specify
ing how the elevated tracks shall be con-
structed. and then compel railroad COM
panies to comply with this ordinance.
Judge Jordan says the writ OF mandamus
was based on an ordinance passed by the
City Council to compel the railroad COM
panies to elevate their tracks. The ordi-
nance recited the conditions OF street cross
ings and the need of safe crossings and
declared the crossings to be a nuisance.
The citys ultimatum set out in the ordi-
nance was that the railroad companies
should remove their tracks from the cross
ings and must elevate them a certain
height in certain districts. The ordinance
provided that the work of elevating the
tracks should be completed within a speci-
fled time. Failure of the railroad COM
paneS to comply with the ordinance caused
the mandamus proceedings to be instituted
by Judge Carter.
Judge Jordan said that the city failed to
show that the commands set out in the
ordinance regarding the crossings being a
nuisance were justified by the facts. He
further discussed the police power vested
in the city and held that the State had not
conferred that power upon the city.
The decision points out that this suit was
not based on the city charter, but on an
ordinance and the passage of such an ordi-
nance being held to be in excess of the
/ powers which the Legislature has granted
to the city, the court declares that this
ordinance gave the city no rights which it
application for mandamus to compel spe-
cific compliance with the ordinance must
necessarily fail.
ORDINANCE HAS FAILED.
Judge Jordan's opinion says the rule is
we'll established in mandamus proceedings
| that on demurrer to the alternative writ
| the question presented or raised is not as
| in the case OF an ordinary action whether
the relator under the facts is entitled to
some form of relief, but whether he is en-
| tilted 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. An ex-
| animation OF the facts set out in the petit
| ton and alternative writ discOseS that the
| relator does not base the right which it
| seeks to enforce against the appellee upon
| the fifth clause of Section 515S, Burns, OF
| the general law relating TO the organiza-
| ton and control Of railroad companies, but
| Pounds the right which it claims and as
| serts upon the ordinance adopted by it's
Common Council. wherein the crossings, as
they are maintained, are declared to be
| nuisanceS. The relator, under the circum-
stances, then, maintaining the right which
| it claims, must stand or fall upon the or
dinance which 1t advances in support of it's
claims.
Regarding the police power of the State
the decision says
| 1T may be conceded, arguendo, that the
authority of the relator herein. If it is in
! vested with such power to require appellee
| to abolish its grade crossings and elevate
of the public streets in order to protect the
| lives and property of those using the same,
rests upon the police power of the State,
which the latter. through its legislative de-
partment, may delegate to or confer upon
municipal corporations. That this power
| extends to and may be exercised to protect
the lives and property of the people, and
| also TO promote their health and morals is
| universally recognized. That the right to
| exercise this power cannot be bargained or
/ bartered away, either by the State or by
| any Of its governmental subdivisions upon
| which 1T has been conferred, is equally well
| settled.
These well-settled propositions, however.
| do not solve the question which confronts
| us in this appeal, for the inquiry still re-
mains, has the Legislature delegated to or
| conferred upon the relator herein any such
| power as will authorize that which 1t seeks
| to enforce under the ordinance in contro-
versy? Counsel for appellant refer us to
Session % (3794 Burns Statutes), of the act
| commonly known as the charter OF the city
of Indianapolis 1t is claimed that under
| the several provisions of that section am
pie power to deal with the problem pre-
sented has been conferred upon relator' s
| Common Council.
POWER IS RESTRICTED.
1T cannot 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 rail-
roads within it's corporate limits that II
necessarily follows. under the circum-
| stances. that it has unlimited power to
deal alike with all of appellee's railroad
crossings and confine it to the particular OF
| specific method or means of elevated tracks
to be constructed by it at all Of its cross
ings regardless of the existing conditions
| and circumstances applicable thereto III
order to AFFORD safety or protection to the
public.
'In regard to the power of the State tc
| confer or delegate the extraordinary au-
thority which the relator, under its charter
claims to have, we need not discuss nor de-
eide. for that is not the question herein in.
volved.
The decision further says that the Legis.
lature did not intend or contemplate grant
ing extraordinary power to the city as ex'
acted by the ordinance in issue under the
relator is empowered to require railroad
companies TO change the grade and cross
ings Of their respective roads. There !:
nothing In Sec. q of the city charter, says
the decision, to indicate that il was the in
tention of the Legislature to invest the
city's Common Council with the extraordi
nary power to impose upon railroad com
panies the duty or obligation of removing
their railroad tracks from the surface o.
the streets where they were legally author
lied to be located, and construct in Hel
| thereof a elevated tracks
templated by the ordinance involved ovel
which they must run or operate their cars
The decision further says on this question
THE power of relator may be conceded
arguendo. either under its charter law Of
under Clause 5. Section 5153, Burns, supra
| where any particular railroad crossing owe
its public streets by reason OF the peculia
or particular circumstances or conditions
thereof can only be made safe for publi
travel thereover by elevating the tracks
of the road, TO compel the railroad compan,
certainly such authority under existin,
: laws cannot be extended by construction 81
| as TO warrant the relator i'm coercing ap
| pellee TO construct and maintain a sys
tenn of elevated tracks for all OF its various
roads running into and through the cit.
of Indianapolis"
DOES NOT JUSTIFY ELEVATION.
The decision further says the fact tina
the Common Council. under the ordinanc
In controversy. has. by its own fiat. de
clared all OF appellee's railroad crossings I
be nuisances. does not justify the deman
and that all surface tracks must be ele