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"That a bridge of the size and dimensions mentioned in said report at the place in question is wholly unnecessary," and "that said report is illegal in its recommendation, requiring said Wabash Railroad Company to construct the bridge therein mentioned at its own cost, because it is not competent, under the laws of the state of Indiana, to make such requirement of a railroad company."

The railroad company filed a remonstrance, the alleged action; and (5) that appellant to the report of the commissioners, on the is under no legal obligation to construct the grounds, among others: bridge in question, and may not therefore be mandated to do so. The latter contention rests, in part, on an incorrect construction which appellant has placed on the judgment announced by the trial court in passing on the remonstrance filed by the railroad company in the original drainage proceeding, and which judgment was thereafter affirmed by this court on appeal. As we have already noted, one ground of that remonstrance expressly challenged the right of the circuit court to require the railroad company at its own expense to construct the bridge which was recommended by the report of the drainThe court overruled age commissioners. this contention, and concluded as a matter of law that the railroad company should be required to construct the bridge in question. In this connection, see Lake Shore, etc., R. Co. v. Clough, 182 Ind. 178, 185, 104 N. E. 975, 105 N. E. 905; Chicago, etc., R. Co. v. Luddington, 175 Ind. 35, 91 N. E. 939, 93 N. E. 273; Cincinnati, etc., R. Co. v. City of Connersville, 170 Ind. 316, 83 N. E. 503. The judgment rendered on the conclusions of law operated to establish the drain and to order the construction of the same in accordance with the modified report of the commissioners. That order necessarily placed on appellant and on its predecessor in title the duty to build the bridge which should form a part of the improvement, and it was expressly affirmed on appeal.

On a trial of the above remonstrance the court found specially that a bridge 17 feet long and 8 feet high would be sufficient to accommodate the flow of water in the proposed drain, and concluded as a matter of law that the railroad company should be required to construct such a bridge across its right of way and on the line and grade of the proposed drain at its own expense. From a judgment rendered on the trial court's conclusions of law, and which established the drain in accordance with the report of the drainage commissioners as thus modified, the railroad company appealed to this court, and the judgment was here affirmed. Wabash R. Co. v. Jackson, 176 Ind. 487, 95 N. E. 311, 96 N. E. 466. Subsequently, on January 10, 1916, appellee, as superintendent for the construction of the established improvement, filed a petition in the Wabash circuit court, in which he set out, in substance, the facts above stated, and alleged, further:

"That said drain was sold by a former superintendent of the same and constructed so far as possible by the purchaser, but that said railroad company has never yet constructed said bridge, as ordered by this court, and has always refused so to do, although said cause was decided by the Supreme Court on November 22, 1911, and the completion of said drain is and has been delayed by reason of the failure of said company, and its successor, to act."

The petition further alleges in detail the refusal of the Wabash Railroad Company, and its successor, the present appellant, to build the bridge in question, and asks for"an order of this court, fixing a definite time in which said Wabash Railway Company shall construct said bridge, or culvert, in accordance with the order heretofore had and entered in this cause."

[2] The judgment which established the drain and ordered its construction was final in character and terminated the adversary proceedings, but the action thereafter remained on the court docket for the purpose of carrying such judgment into effect, and to that extent, at least, the circuit court retained its original jurisdiction over the subject-matter (Perkins v. Hayward, 132 Ind. 95, 99, 31 N. E. 670), and as appellant voluntarily appeared and filed an answer to the petition herein, there can be no question as to the jurisdiction over the parties. The petition was not an original action, and was in no sense an action in mandamus. sought only the entry of an order supplementary to and fixing the time within which appellant should comply with a previous order in the proceeding, and thus invoked the exercise of an inherent power which a court possessed to make such orders and to issue such writs as may be necessary and essential to carry a previous judgment into effect and render it binding and operative. 7 R. C. L. 1034, § 63, and authorities cited.


[1] Appellant's motion to dismiss the above petition and its demurrer thereto were each overruled, and said rulings are now challenged by the assignment of errors in this court. To treat these assignments collectively, it is the contention of appellant, in substance: (1) That this is an action in mandamus, and is not authorized under the drainage laws of the state; (2) that, even though a proper proceeding in such cases, an action in mandamus can be brought only in the name of the state, on the relation of the party in [3] Furthermore, it was a petition which interest; (3) that appellee, as superintend- appellee had a right to file. As superintendent for the construction of the drainage ent for the construction of an improvement improvement, has no authority under the established by order of the Wabash circuit law to maintain this action, either individual-court, in which the proceeding was still pendly or as a relator; (4) that the trial court ing, he was acting as an officer of that court, had no jurisdiction of the subject-matter of and was charged with the duty, not only of

appeal the same shall be granted without bond,
ing that every act shall embrace but one subject
is not invalid under Const. art. 4, § 19, declar-
and matters properly connected therewith,
which subject shall be expressed in the title.
[Ed. Note.-For other cases, see Statutes,
Cent. Dig. § 156; Dec. Dig. 117(7).]

making such reports to the court as should, tions in which any city is entitled to pray an show the condition of the work as it progressed, but also of asking such further orders and instructions as should prove necessary for its proper completion. This duty exists independent of statutory provision, but, impliedly at least, it is within the contemplation of section 6144, Burns 1914, which directs the work of the construction superintendent. There was no error in overruling either appellant's motion to dismiss the petition or its demurrer thereto.

The act is not in violation of Const. art. 4, § 22, subd. 3, forbidding local or special laws regulating the practice in the courts; the classification being reasonable.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 94, 95; Dec. Dig.





Code Civ. Proc. § 849 (Burns' Ann. St. 1914, 1350), provides that the time within which an act is to be done shall be computed by excluding the first day and including the last, but if the last day be Sunday it shall be excluded. Appellant filed the transcript 61 days after the ruling of a motion for new trial and the granting of the appeal, the sixtieth day having fallen on Sunday. Held that, if the transcript was required to be filed within 60 days, it was filed in time, and the appeal is not to be deemed a vacation appeal because the transcript was St. 1914, § 679. not filed in 60 days as required by Burns' Ann.

[4, 5] To meet appellee's petition on its merits, appellant filed four paragraphs of answer, of which the first, a general denial, was subsequently withdrawn, and the other SCRIPT. three were struck out on motion of appellee. The ruling on this motion presents the re-§ maining questions for our consideration. The issues presented by the second, third, and fourth paragraphs of answer have been disposed of in part by our conclusions above stated. They embody appellant's further contention, however, that the drain in question has not yet been completed up to the point where it is to cross the railroad right of way, and cannot be so constructed without the making of an additional assessment against the owners of property to be benefited thereby; that appellant is ready to construct the required bridge whenever the same is made necessary for the safe passage of its trains over the new ditch, and will afford proper facilities at any time for the construction of the improvement across its right of way.

It is true that a motion to strike out will not perform the office of a demurrer for want of sufficient facts, but if a pleading is so clearly bad that it cannot be amended, or if, in the case of an answer or reply, it amounts only to a general denial, a judgment will not be reversed on account of the irregular procedure in sustaining such a motion. Wilson v. Tevis, 111 N. E. 181; Weideroder v. Mace,

111 N. E. 5.

The matters above suggested by appellant's answer, if sustained by proof, would not defeat appellee's right to the relief asked in this petition, although they might affect the terms and conditions of the court's order. In any event, there were provable under the general denial, which was on file at the time the motion to strike out was sustained, and the error, if any, in the ruling was harmless. Judgment affirmed.

(187 Ind. 582)

(No. 22987.)

(Supreme Court of Indiana. Oct. 24, 1916.)
Acts 1905, c. 129, § 90 (Burns' Ann. St.
1914, 8692), entitled "An act concerning mu-
nicipal corporations," and providing that in ac-

[Ed. Note.-For other cases, see Time, Cent. Dig. §§ 48, 52; Dec. Dig. 10(9).] 4. ADVERSE POSSESSION 8(2)-HIGHWAYSENCROACHMENTS.

One encroaching on a highway dedicated to tion or adverse user. the public use acquires no rights by prescrip

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 44-50; Dec. Dig. 8(2).]

Acts 1907, c. 279 (Burns' Ann. St. 1914, §§
8908-8920), entitled "An act concerning the va-
cation of plats of lands or any part thereof and
porate limits of cities and towns," in section 3
for the disannexation of territory from the cor-
(Burns' Ann. St. 1914, § 8910) authorizes a pro-
ceeding in the circuit court to vacate any street
or part thereof, while section 4 (Burns' Ann.
St. 1914, § 8911) authorizes a remonstrance on
the ground that the public place sought to be
vacated is necessary to the growth of the mu-
nicipal corporation, because the proposed vaca-
tion will leave remonstrant's property without
prive the public of access to some church, school
a public way or because the vacation will de-
or other public building. Burns' Ann. St. 1914,
$$ 8960, 8961 (Acts 1905, c. 129, §§ 266, 267),
authorize the common council of every city to
pass ordinances in relation to the opening,
changing, or improving of streets and give cites,
save as otherwise provided, authority to straight-
en, widen, or improve streets already laid out.
Held that, as the act of 1907 provided it should
not repeal any existing law, such act does not
authorize the circuit court to entertain a peti-
tion by an abutting owner to vacate a portion
of a street on the ground that improvement of
the entire street would cause him to move his

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 722, 1429; Dec. Dig. 657(2).]

Appeal from Circuit Court, Gibson County; Simon L. Vandeveer, Judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Petition by Hugh Hanna, Junior, and others, against the City of Princeton. From a judgment for petitioners, defendant appeals. Reversed and remanded, with directions.

Henry Kister and D. R. Head, both of Princeton, for appellant. Claude A. Smith and T. Morton McDonald, both of Princeton, for appellees.

MORRIS, J. Appellees, Thompson and Hanna, filed in the Gibson circuit court their petition to vacate a portion of Gibson street in appellant city, consisting of a strip on the east side thereof, four feet wide at one street intersection and twelve feet wide at another immediately south thereof. The city, which is one of the fifth class, remonstrated against the proposed change. A trial resulted in a finding and judgment for appellees. Appellant's motion for a new trial was overruled on September 22, 1915. An appeal to this court was prayed by appellant and granted, but no appeal bond was filed. The transcript was filed here on Monday, November 22, 1915.

[1, 2] Persons other than appellant and appellees were parties to the proceeding, but no notice of appeal issued to them. On May 17, 1916, appellees filed their motion to dismiss the appeal. Section 90 of the Act of 1905, entitled "An act concerning municipal corporations," provides that:

"In all actions in which any city is entitled to pray an appeal, the same shall be granted as to such city without bond." Acts 1905, p. 277; section 8692, Burns 1914.

Appellant's motion to dismiss is predicated on: (1) The theory that the above statutory provision is unconstitutional because in contravention of section 19 of article 4, and section 22, subd. 3, of the same article, of our state Constitution; and (2) that, if violative of neither constitutional inhibition, nevertheless the appeal must be deemed a vacation one, because, as claimed, the transcript was not filed within 60 days. Section 679, Burns 1914. We are of the opinion that the act of 1905 authorizing an appeal, without bond, by cities, is not violative of section 19, art. 4, supra, which declares that every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title. Nor is the statute in contravention of the constitutional provision (article 4, § 22, subd. 3) which forbids local or special laws regulating the practice in courts of justice. Indianapolis St. R. Co. v. Robinson (1901) 157 Ind. 232, 61 N. E. 197; Cleveland, etc., R. Co. v. Blind (1914) 182 Ind. 398, 419, 105 N. E. 483. The classification here is reasonable.

[3] While the transcript here was actually filed 61 days after the ruling on the motion for a new trial and the granting of the appeal, the sixtieth day fell on Sunday. Section 849 of our Code of Civil Procedure (section 1350, Burns 1914) provides that:

"The time within which an act is to be done, as herein provided, shall be computed by excludlast day be Sunday, it shall be excluded." ing the first day and including the last. If the

If it was necessary for appellant to file the transcript within 60 days, the filing was in due time under the provisions of section 1350, Burns, supra. The motion to dismiss is overruled.

[4, 5] It appears from appellees' petition that the portion of Gibson street in controversy is a part of the original plat of the town of Princeton made, in 1814, by one Evans as agent of Gibson county. The street, as platted, extends north and south, is 60 feet wide at the place in controversy, and is intersected by State and Broadway streets. Between the latter, on the east side thereof, appellees own lots on which are situated buildings located, in part, west of the east line of Gibson street. The petition avers that the street has never been used for travel to a width of greater than 48 feet, and that the latter width is sufficient to accommodate public travel; that Gibson street extends south beyond the intersecting streets a distance of half a mile, where it is only 48 feet wide; that the city council of Princeton has ordered an improvement of Gibson street that will, if consummated, require petitioners to remove their buildings out of the street at great expense.

The city filed a remonstrance in four paragraphs, the first three including the statutory grounds found in section 8911, Burns 1914. The fourth paragraph alleges that previous to the filing of appellees' petition the city had duly ordered the improvement of the street by constructing a combined curb and gutter; that, when constructed pursuant to the plans and specifications legally adopted by the city council, there will not be room for the construction of sidewalks for the traveling public if the proposed vacation be granted. This paragraph was ordered strick

en out.

The petition was filed under the act of 1907, entitled "An act concerning the vacation of plats of lands or any part thereof and for the disannexation of territory from the corporate limits of cities and towns.' Acts 1907, p. 617; sections 8908 to 8920, inSection 3 of the act clusive, Burns 1914. (section 8910, Burns 1914) authorizes a proceeding in the circuit court to vacate "any street or part thereof" adjoining

a lot or lots of a petitioner.

Section 4 of the act (section 8911, Burns on three 1914) authorizes remonstrances grounds only, viz.: (1) Because the public place sought to be vacated is necessary to the growth of the municipal corporation; (2) because the proposed vacation will leave a remonstrant's real estate without communication with a public way; (3) or because the proposed vacation will deprive the public's access to some church, school, or other public building or grounds.

It is earnestly contended by appellant that [ plemental act, it is obviously necessary to the circuit court was without jurisdiction of consider both the former and latter enactthe subject-matter of the action; that the act of 1907, properly construed, confers no authority on circuit courts to adjudge the vacation of a portion of a street by making it narrower; but that, if such act be held as conferring such authority, the same must be held unconstitutional and void.

The municipal corporations act of 1905 revised our statutory laws relating to cities and towns. Section 266 of this act (section 8960, Burns 1914) invests the common council of every city with power to pass all nec essary ordinances in relation to the opening, change, or improvement of streets. Section 267 of the act (section 8961, Burns 1914) provides that, except when otherwise provided by law, every city shall have exclusive power over its streets, and to "straighten, widen and otherwise alter and improve those already laid out, or that may hereafter be laid out, and may construct and establish sidewalks and street crossings."

It is conceded by appellees that previous to the enactment of the statute of 1907 cities were invested with the exclusive power to alter the width of their streets by making them narrower. Since the enactment of the law of 1907, this court has considered cases where the petitions in the circuit court sought the vacation of portions of streets, in their entire width. Civil Township of Hudson v. Smith (1914) 182 Ind. 260, 106 N. E. 359; City of Peru v. Cox (1908) 173 Ind. 241, 90 N. E. 7. Whether the act authorized a circuit court to adjudge the narrowing of a city street has not been heretofore considered. In the last section of the 1907 act, it is provided that the act shall not have the effect to repeal any existing law, but shall be supplementary to then existing laws on the subject.

ments. We find that by the act of 1905 the exclusive power to straighten or alter an existing street was vested in the city authorities. No such power is given, in express terms, by the act of 1907. Moreover, the sole grounds of remonstrance permitted by the latter act do not warrant the determination by the circuit court of those matters of supreme importance, viz., the convenience and safety of public travel. The growth of the city in population or wealth might not be substantially affected by the narrowing of a street, and such act would not prevent access to the street by adjoining owners, nor would it cut off public access to any church, school, or public place or ground adjoining the highway.

On appellees' theory, which was adopted by the trial court, the latter properly struck out appellant's fourth ground of remonstrance because not included in the statutory grounds, although the conceded effect was to deprive the city authorities of the power to provide a sidewalk on a portion of a century old street, and near the public square of a thriving county seat city. We are of the opinion that it was not the legislative purpose by the 1907 act to confer jurisdiction on the circuit courts to order the narrowing of city streets, and that the trial court erred in overruling appellant's motion for a new trial which challenged the jurisdiction of the court over the subject-matter of the petition. Our conclusion relating to the legislative intent renders unnecessary a consideration of the constitutional question presented.

Judgment reversed, with instructions to sustain appellant's motion for a new trial, and for further proceedings not inconsistent with this opinion.

(185 Ind. 302)

One encroaching on a highway dedicated to public use acquires no rights by prescrip- STATE ex rel. HULSKAMP v. McCORMACK tion or adverse user. Hall v. Beryfogle (1904) 162 Ind. 494, 70 N. E. 883.

The legislative purpose in laws providing for the vacation of existing highways is public, and not private, use and convenience, and usually the specific object sought is relief from the public expense of maintaining unnecessary roads or substituting a more desirable way for an existing one. 13 R. C. L. 68.

In general terms, the act of 1907 provides for the vacation of streets in whole or in part. It is argued by appellees that, since the greater includes the less, authority to vacate a portion of the street should be held to include a partial vacation in width as well as length. City of Mt. Carmel v. Shaw, 155 Ill. 37, 39 N. E. 584, 27 L. R. A. 580, 46 Am. St. Rep. 311. We cannot accept such view of this statute. In seeking the controverted legislative purpose in an amendatory or sup

et al. (No. 23160.)

(Supreme Court of Indiana. Nov. 2, 1916.) 1. CONSTITUTIONAL LAW 46(1)-PASSING ON CONSTITUTIONAL QUESTIONS.

Where a case may be decided without passing on constitutional questions raised and discussed, the Supreme Court will do so.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 43, 45; Dec. Dig. 46(1).]

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made or use an enumeration made by township the extraordinary remedy of mandamus and trustees, where, in making such a division, the that this remedy is not awarded except to board enumerated the electors of the county from the records of the registration of electors secure or enforce a clear legal right must previously had, the order of the board promul- not be lost sight of. gating the apportionment of the ten representa- [3] It appears from the averments of retives of the county was void. lator's complaint that, in making the divi[Ed. Note. For other cases, see States, Cent. sion of Marion county into ten representaDig. §§ 28-33; Dec. Dig. tive districts, the board of commissioners


Appeal from Superior Court, Marion Coun- "enumerated the electors of said county from ty; Clarence E. Wier, Judge.

Action for mandamus by the State, on the relation of Colley B. Hulskamp, against Charles K. McCormack and others. From a judgment for defendants sustaining demurrer to the complaint, relator appeals. Judgment affirmed.

W. Masson, of Indianapolis, for appellant. Charles K. McCormack and Robert C. Brenneman and Edwin Steers, both of Indianapolis, for appellees.

COX, C. J. This appeal presents a later phase of the contentions raised in Marion county by the legislative apportionment act of 1915 (Acts 1915, p. 656, § 3), which contentions were first presented to this court in Board of Commissioners v. Jewett (1915) 184 Ind., 110 N. E. 553.

The transcript in this appeal shows a mass of somewhat confused proceedings in the lower court involving the validity and the construction of section 3 of the act of 1915 supra and the regularity and validity of the acts of the board of commissioners in attempting to act under the statute. But the case as it comes to us rests on a complaint by appellant relator based on the theory that the section in question is constitutional and valid, and that the board of commissioners regularly acted according to its provisions, and divided Marion county into ten representative districts, the number apportioned to it. The action was one for mandamus to compel the placing of names of candidates for representatives in the General Assembly from Marion county on the ballots and voting machines to be voted for by districts in accordance with the alleged apportionment by the board.

the records of the registration of electors of said county had in October, 1914." Even if section 3 should be deemed in all respects a valid enactment and one under which the purpose of dividing the county into districts could be carried out, this averment shows that the board did not make the division of

the county in accordance with the authority intended to be bestowed by the section, and their order promulgating the apportionment of the ten representatives of the county is therefore void; for section 3 provides the basis upon which alone the board is authorized to act. It requires that the board shall divide the county into districts which shall give "to each [district] as nearly as may be, an equal number of electors." It provides two ways only for ascertaining the whole number of electors which is to be divided into ten districts of equal number of electors each in the following words:

"For the purpose of determining the number of electors, the board shall cause an enumeration of electors in their counties or they may tees if the same shall be adequate to determine use the enumeration made by the township trusthe number of electors for each district."

The method last named was not used, nor, manifestly was the first. Merely taking the registration lists of the last preceding general election cannot be deemed an enumeration of all of the potential electors who have a right under our system to be represented in the General Assembly. It might be that not nearly all of the electors of Marion county were registered in 1914; again it might be that in one part of the county there was a fairly full registration and in another part a registration far short of the electorate. Taking the registration list for an enumeration was not what the Legislature said, and clearly it was not what was intended. To do so might bring inequality of representation when not only section 3 of the act in question, but the Constitution itself, requires equality as near as may be. The board could only divide the county by taking an enumeration or using one made as provided. The duty to use one of the two enumerations designated was

Appellees demurred to this complaint on the ground that it did not state facts sufficient to state a cause of action. The memorandum made a part of the demurrer asserted numerous constitutional objections to section 3, and numerous irregularities in the proceedings of the board itself in making the apportionment of the county into districts and entering it of record. The demurrer was mandatory. The section gives no discretion sustained, and that ruling is assigned as


to base the division on any other method of ascertaining the electors than those provided. The high dignity of the power attempted to be delegated was not intended to be the prey of an unlimited discretion of an inferior governmental board. The rule applies that, where the means by which a power granted shall be exercised are specified, no other or different means for the exercise of [2] The fact that the complaint involves such power can be implied. And where a

[1] We are not obliged to pass on the constitutional questions raised and discussed, for the case may be decided without doing so. The rule is settled in such cases that this court will not decide constitutional questions. In re Mertes Estate (1914) 181 Ind. 478, 104 N. E. 753, and cases there cited.

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