The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1894-11-11
JUDGE BAKERS OPINION.
He Thinks the Citizens Franchise Ex-
pires In 1901.

L4A.
pircs In 1901.
Judge Bakers opinion differs as to the
right Of the city TO terminate the life of the
Citizens company. He holds that the city's
consent granting use of the streets consti-
tutes a franchise. wholly distinct from that
granted by the Legislature. His opinion
is as follows:
The franchise to be a corporation with
the right or perpetual succession is derived
by the complainant directly from the Stale
OK. >. Ind. 1891 sec. 4i43 ct seq.) The STAT
ute which iInparts 20 il its corporate fac
ulties confers upon 1t no right 10 enter
upon the streets or any city 10 construct
and operate a street railroad therein. 1t is
expressly enacted tncI ALI slreet-railroad
companies sasll rirst OBTAIN the consent OF
the Common Council TO the location, Sur
vey, and construction OF any street rail-
road through or across the puDlic streets
OF any city before the construction OF the
same shall be commenced" 1t is plain that
the State mas not undertaken directly TO
confer upon the complainant the right TO
occupy ana use the streets of the CITY for
street railroad purposes. Under the fran
cnises and powers granted 10 il by the
State ii Is without authority TO enter upon
the streets OF the city to construct and oper-
ate a railroad. 1nis right is derivaoIe from
the consent or the city alone. Whether con-
sent snail De gfanlea or refused IS exciu-
right to occupy ana use the streets OF a
cay for raiifoade PURPOSES is a franchise,
and is wnoily distinct from the FRANCHISE to
directly from the State. The latter
IfSHenise unless eahh0 express es s Siat,to or con CON
thority is granted FOR that purpose. TIE
franchise to use the streets Tor railroad pur-
poses-the right OF way on wnicn TO build
ana operate d railroad Tor pr0nt-ls the sub
ject Of sale and convey ance. New Or
leans. spanish Fort a. Lake Railroad Co. v.
Delamore, ia u. ,. SOD. The consent OF the
city impaired 10 the complainant a yahIan ME
franchise wnicn, without sucn consent, it
would not nave possessed. Inc State gave
IL the capacity 10 receive and enjoy this
right or franchise, provided the city saw
ut TO grant II. The power 10 grant or refuse
resided in the city alone, and il Carried
with Ii the right TO impose any terms not
FORBIDDEN by law. II the city may refuse
PERMISSION 10 use the streets at ali, il must
nave a right to fix a limit TO the term of
their use. The greater power must include
the less. lie WHO can give the whole can
give a part. Tie who can grant aosoluteIy
can grant with a condition, reservation or
limitation. Whether street railroads shall
be permitted 10 occupy the streets at all is
left wholly with the city to determine upon
its own Judgment OF the public convenience
aud welfare. The ordinance OF 1864 was an
entirety, TO be accepted or refused just as
ii was, and Its acceptance was a condition
precedent To the occupancy or the streets.
Nothing, therefore, could mak the ordi-
nance Il consent but the performance of
nance as a whole. CITY of Allegheny ".
Nitrate, Aetna * Sharpsburg ST. Ry. Co.
IS All. Rep. POD. The power to determine
whether, and how long, street railroads NAV
"
sides in the State; but it is a power whose
exercise has been wisely delegated to those
wEo are directly interested in these oues-
tons. There is less danger OF wrong and
Injustice in committing their determination
TO the city than there would be if the Leg
~islature should determine them directly.
The authorities of the city, acting upon
matters of local concern directly affecting
themselves and their fellow-citizens, are
rot more likely TO abuse their trusts in
fixing the terms upon which a street rail-
road may occupy the streets OF the city
tran the Legislature would be. Local SELF
government and home rule in matters of
municipal concern are of the essence of a
republican form OF government. Abuses OF
these delegated powers are securely guard
ed against by the experimenting power of
the State TO correct them. IL seems 10 me
that the Common Council had ample power
10 grant to the complainant the right to use
the streets for thirty years, subject to the
paramount power OF the State 10 alter the
Term. The fact that the complainant is in
vested with perpetual corporate existence
does not, in my opinion, in any case AFFECT
the power of the city 10 limit the use OF the
streets for railway purposes 70 a definite
term of years A corporation having a
limited term of existence may acquire a
.itle to property extending bevond the tern.
OF its corporate life. So, on the other hand,
q corporation having perpetual existence