Opinion
No. 25,230.
Filed October 25, 1928. Opinion modified April 18, 1929.
1. PLEADING — Conclusions of Law — Application of Statute as to Conclusions. — Section 360 Burns 1926, authorizing the pleading of conclusions, subject only to a motion to make more specific by stating the facts to sustain the conclusions alleged, refers to conclusions of fact, and not to conclusions of law, and such conclusions must be disregarded in determining the sufficiency of the pleading. p. 79.
2. PUBLIC SERVICE COMMISSION — Jurisdiction — Over Motor-bus Common Carriers. — Ordinances designating streets within municipality on which buses may operate or prohibiting their operation on certain streets do not encroach on the jurisdiction of the Public Service Commission over motor-bus common carriers, so long as such ordinances do not prevent or unreasonably interfere with the utility's operation. p. 80.
From Marion Superior Court (A34,641); Sidney S. Miller, Judge.
Suit by Frank Stuck and another against the town of Beech Grove and its officers to enjoin them from enforcing an ordinance thereof. From a judgment for defendants, the plaintiffs appealed. Affirmed.
Fred Bates Johnson and Earl B. Barnes, for appellants.
Cox, Welliver Adams, for appellees.
The parties to this appeal are the same as in No. 25,227, Stuck v. Town of Beech Grove (1928), ante 66, 163 N.E. 483. The appellants herein sought to enjoin appellees from 1. enforcing the same ordinances that are involved in the other case, not upon the ground that the ordinances were unreasonable, but on the alleged ground that they encroached on the jurisdiction of the Public Service Commission. Some conclusions of the pleader to the effect that the second "ordinance is unconstitutional, arbitrary and unreasonable and beyond the power of the town board and therefore void" were set out in the complaint, but no facts were alleged to show wherein the ordinance was unreasonable, etc. These conclusions, being conclusions of law and not of fact, are not covered by § 360 Burns 1926, which authorizes the pleading of conclusions subject only to a motion to make more specific, Central Bank, etc., v. Martin (1919), 70 Ind. App. 387, 394, 121 N.E. 57; Cincinnati, etc., R. Co. v. Little (1921), 190 Ind. 662, 668, 131 N.E. 672, and they must be disregarded. Public Service Comm. v. City of Indianapolis (1922), 193 Ind. 37, 61, 137 N.E. 705. The trial court sustained a demurrer to appellants' complaint and, upon their refusal to plead further, rendered judgment against them.
We have held, in the other case, that ordinances designating the streets within a municipality upon which buses may operate, or prohibiting their operation on certain streets, do not 2. encroach upon the jurisdiction of the Public Service Commission over motor-bus common carriers, as long as the ordinances do not prevent or unreasonably interfere with the utility's operation under the certificate or franchise granted by that commission, and it follows that the trial court correctly sustained the demurrer to the complaint.
No error is presented by appellants' brief. The errors assigned are that the court erred in sustaining the demurrer to the complaint and in sustaining appellees' motion to dissolve a temporary injunction which had been granted to appellants, and the points and authorities cited by appellants go only to unreasonableness of the ordinance, which was not the issue under the pleadings.
Judgment affirmed.