The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1894-11-11

on aaaltlonal restrictions. productive Of rev.
ease ~ esDer advantage to the public. The
So doS y oioux City Railway Company VS..
49,, Ivy ls8 y. s., IS. affords an illustra-
s yan N the nature of things a street rail-
y perpetual and increasing utility, and
snere seems to be no good reason why the
franchise should cease while the utility
lasts though there may arise from time to
time, and within periods much shorter than
regT,lSs years, necessity for changing the
which the franchise shall be employed. How
Tar me power to make such changes shall
os committed to local authorities is a mat
OF OF 1901 II Is retained by the Legislature.
rnat sody may amend. or, If 1t chooses. it
~ nay repeal the statute, and so end all fran
according to some authorities. when a
cnarter Is repealed provision must be made
for a disposition of the corporate property,
without confiscation. In People VS.. Boston,
etc, ny, Co, 20 n. Y, $40. speaking of the
reserved power to alter, amend or repeal
SAD: Under this reserved power the Leg
stature may impose upon railroad corpora
tons such additional restrictions and bur-
Gems as the public good requires. 1t may
not confiscate property" In Dash VS.. Van
n Hlsek; Z ); joins ms Az; it was said; 1T : re,
the equal and permanent security
property of an individual without
MS consent and give il to another" These
expressions are reiterated and approved
IT People VS.. O'Brien, supra. See also, De-
m sroit vs.; Detroit & H. p r R; Co, 4s
Mlcn-, lfo. 0 n. w. Rep, 275. But in Green
wood VS.. Freight Co., 105 u. s.. IL, 19, Justice
Miller. speaking for the court of the effect
OF the repeal OF the charter of a corporation,
said; IF the essence of the grant of the
charter be to operate a railroad, and to use
the streets OF the city for that purpose, 1t
can no longer SO Use the streets of the
CITY. and no longer exercise the franchise
or running a railroad in the city. In short,
Whatever power Is dependent solely upon
the grant of the charter, and which could
LOU Dc exercised by unlnCOrDOraf ted nriVate
persons under the general laws of the
state. is abrogated by the repeal of the law
al and real property acquired by the cor
poration during its lawful existence, rights
OF contract, or chooses in action so acquired,
ana which do not in their nature depend
upon the general powers conferred by the
charter, are not destroyed by such repeal;
and the courts may. If the Legislature does
such rights by the means within their
power. The rights of the shareholders of
such a corporation, to their interest in its
property are not annihilated by such a re-
peal. and there must remain in the courts
the power to protect those rights" In that
case, which concerned a street-railway fran
chise, the repeating act contained express
provision for compensation to be made by
the corporation which was authorized TO
enter upon and use any part of the tracks
or any other street railroad If the corpo-
rations interested could not agree upon
the, compensation to be paid therefor
so that the effect of the repeal without
provision for such compensation was not
before the court. Nevertheless, the princi-
pie declared, i think. must be accepted as
sound. The unrestricted right of repeal
being reserved by the Legislature, a repeal
must be regarded as valid and effecfl We,
whether or not accompanied with provis-
Ions Tor the just disposition of the corDo-
rate property rights If such provision Is
not made. there must be in the courts the
power to protect those rights" But without
perceived how a court could compel a new
company to take the tracks and equipment
Of the company whose franchise had been
RIGHT TO STREET.
If, therefore, the right of the Citizens
Street-railroad Company to occupy the
streets of the city and run its cars upon
existing lines has ceased, and, under its
contract the City Railroad Company has a
right-not, of course. to take possession OF
and use the tracks Of the other company
but to put its own tracks in the place there
of, then we are confronted with a case
either of indirect confscation, or of the
destruction of property. The Citizens COM
pany must either remove its tracks. destroy
price as the City company shall choose to
give-and that is equivalent to confiscation.
While an enactment to that effect would
perhaps not be Invalid, a construction which
leads TO such results should not prevail
when a reasonable Interpretation is possible
which involves no wrong or hardship either
to the parties or to the public. The decision
In Louisville Natural-gas Co. VS.. State ex
rel. Reynolds, 135 Ind, 10. overruling city of
pany, 1872 Ind, SIS. is. L think. not
without significance in respect to the inter-
probation of the statue now under consid-
eraion. The power given street railway
companies by the statute to mortgage their
property and franchises indicates a purpose
that the franchise should be a continuing
franchise which is to expire before or near
the time when the mortgage will be en-
~forceable? The doctrine that parties may,
probation upon their contracts is not app!i-
cable where adverse public interests are in
volved. The public is not bound by the acts
OF officers contrary to law, no matter how
long maintained and acqulesced In. Ac-
cording to Reiner VS.. Oxley, so Ind, $50, TO
which reference has been made, parties may
interpret their own contracts so long as
their Interpretation does not result in a
CONTRACT. which for some reason is in itself
unlawful"
ACT OF 1891.
The act of 1891, which affects the city OF
Evansville alone, cannot be regarded as a
legislative construction which should oper-
ate to give the act of 1861 a meaning which
'otnerwlse, in the judgment of the court, II
did not have. That act prohibited the Com.
mon Council and other authorities of thai
city from extending any franchise or fran
chises affecting the streets OF the city dur
ing the term for which they were originally
granted by the city councils or other au-
thorities." This presupposes but does no
sanction the Original grant for a term, mol
does IL confer a new power to make such
term grants after the expiration of existing
terms. II simply forbids what i'm this argu-
ment has been claimed TO have been unlaw'
full without such inhibition, namely. agree
ments for extending terms before they had
expired. If such agreements had beer
heretofore unlawful that statute should no
be regarded as a legislative declaration Of
their legality. IL the Common Council hat
authority to impose the original limita
ton of thirty years, then, in my opinion
the seven years extension was valid. The
ordinance Of April Z, 1880. granting that ex
tension. if otherwise valid, as 1 think it is
was not without considerations thu
mutual obligations and interests Of the par
ties-and, granted as it was at the requesr
of the company, its acceptance should bt
inferred. Upon either view of the Council!
unexpired franchise, for the protection o.
which 1t was entitled to invoke the actor
OF the court; and that, too, | think. withou
being driven to an election between the twC
in character, whether o~btainable upon on,
proposition or the other. The same publ
interest which forbids an Interpretation o
the contract by reference 10 the cOnduc
of the parties-excluding the idea of estop
pel-bears upon this question, and entities
the plaintiff upon a proper presentation o
the facts TO a decree according TO the Law
as determined by the court. And, even i
no public right were involved, Ii seems &
me that an election would not be neces
Sary.
rights Of the defendant, the City RAILWAY
| Company, and it's alleged doings in deroga
ton of the rights Of the complainant. y,
the act OF March 8, 1891, constituting a new
charter for Indianapolis, there was create,
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