The Richmond palladium. (Richmond, Ind.) 1906-1907, 1906-06-16
.C|TY'S POWER
TO CLOSE STREET
Continued From Page One.)

its exercise, the officers are vested
with very broad discretionary pow
er, and unless this discretion has been
abused the courts can not interfere"
4 The execution of the powers given
the Board to vacate streets involves
the exercise of judgment and discre-
ton, therefore the general rule would
obtain that in the absence of fraud
and collision, courts will decline to in
terfere in the execution of the power
when the Board is acting within the
scope of its prescribed authority. (See
McQuillan on Municipal Ordinances.
Sec. TO-
While the rule of non-judicial inter
ference as above stated is well estab-
lished, certain limitations are recog-
nized. Every corporate duty is in the
nature of a public trust, and should
be exercised for the general welfare.
Private property and private rights
will receive legal protection; Hence
the universal rule: Wanton or unrea-
sonable exercise of power, although
discretionary, by corporate authori-
ties, detrimental to public interests or
injurious to private rights, will be re-
dressed by the judiciary, notwith-
standing such powers clearly belong
to municipal Corporations, and in the
exercise of them no corruption or
fraud appears. (McQuillap, Sec 49,
If the vacation of street would not
inure to the public convenience or
welfare, and the public interests re-
quire that the street be kept open, it
would not be proper for the Board to
order the vacation
If the vacation of a street would in
any way be for the public welfare, and
it is not required to be kept open for
have the right to vacate it, and the
fact that the proceeding to vacate
were instigated by a private corpora
ton, that the corporation may use
such vacated part in the extension of
it's premises, is not such fraud as will
authorize the courts to invalidate this
ordinance" (Knapp, Staout & Co.,
VS.. City of st. Louis, Sc S. w. Rep.
1902; Glasgow VS.. City of ST. Louis,
II S. w. TAB; Village of Bellevue vs.
Bellevue Improvement Co., (Neb.) 90
N. w. 1902; Myers VS.. Village of Teu-
topolis, 131 Ill. 552; Tilly VS.. Mitchell
& Lewis Co., (Wis) SO N. w. 969.)
In the Glasgow case above cited the
court says: There is no doubt but
the municipal assembly in enacting
the ordinance intended to aid and fos-
ter a large manufacturing industry,
but it is equally clear that the ordi-
n %o
the public interests. The evidence
entirely fails to show any fraud on the
part of the city or any combination to
injure any one, nor does the evidence
show that the ordinance was an unrea-
sonable one. Whether it's streets
should be kept open or vacated, was
properly matter of eXpediency, and
that was a question for the Munich
pal Assembly, and not for the courts"
There are quite a number of other
decisions along the same line, and
wherever it appeared that the vaca-
ton was for the public interest, or
that the public interests did not re-
quire that the street be kept open, the
courts have upheld the action of the
Municipal Corporation, though it ap-
peared that one of the objects of the
vacation was the fostering of private
industries.
On TIC other hand an ordinance at
tempting 10 vacate street or a por-
ton thereof. for the sole purpose of
allowing a ,,;lvate person to occupy a
portion thereof with his private bust
ness would be void, and the courts
would interfere. (See Smith VS.. Nc
Dowell, 14S ILL.,, 81; 35 N. E. 141 and
% L. A. r. 1913. Also 20 Att. 60S.)
Vacating an alley in consideration of
a division with the City of the prop
erty after the erection of a building
thereon by the owner of the fee is
held void in Horton VS.. Williams
(Mich.) So N. w. 500.
The power to vacate can not be ex-
ercised arbitrarily, it must be exer-
cised in the interest of the public.
(Whitsell VS.. Union Dept. & r. r. Co.,
Is Pac. (Colo.) 339)
The power to vacate streets in
Richmond is vested in the Board of
Public Works, and such board has full
power to vacate streets, subject to re-
strictions above set forth.
A. M. GARDNER, City Atty.