The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1894-11-11
The Former Holds that the Legisla-
Citizens ~Company's Charter.
JUDGE BAKER DISSENTING
DECISION OF THE RANKING JUDGE,
HOWEVER, WILL PREVAIL.
The District Judge Thought the Citi-
xens' Charter Expires I'm 19O1-Ap-
peal TO the Supreme Court.

The Citizens street-railroad won a signal
victory yesterday in the federal Circuit
Court. Judge Woods handed down an opin-
ion in which the franchise Of the company
is held to be subject to limitation only by
the Legislature. Judge Baker, who also
sat in the case, dissents from this view. but
both agree that in any case the seven
years extension was valid and that the
company's franchise holds good until 1901.
The decision Of Judge Woods prevails, he
being the ranking judge. The opinions are
masterpieces OF reasoning, and indicate a
broad understanding and appreciation of the
rights of the municipality and the public as
we'll as Of such semi-public corporate prop
erty. Judge Woods. while denying the
power OF the Council to terminate the life
of the Citizens company, even for what
advantages there may be in the City COM
pany's franchise, says that 1t is not a ques-
ton Of perpstuity of charter, but Of amend
ment, alteration or repeal by the Legisla-
ture, which alone has sovereign power.
The Council has only the powers of an
agent of the State. Its acts could not bind
the State, and therefore the other
party to its contract could not be bound
by any contractual arrangement. The opin-
ion Is as follows:
III respect 10 the question OIL JurlSulctlOn,
j am content with the decision heretofore
made in this case and reported in 90 Fed.
Rep. $50. The corporate existence and the
franchise Of a street-railway company or
ganized under the law of 1861. Indiana r..
s. 1881, Section 4143 ct seq, are derived d.
rectly from the State, but are subject to the
Council shall be obtained ito the location,
survey and construction of any street rail-
road through or across the public streets of
any city before the construction OF the same
shall be commenced
CONSENT OF COUNCIL.
The consent of the Common Council be-
Ing required, it is in a sense true that the
franchise is granted by the city, since the
ultimate right is acquired or becomes eff
fective only upon the giving of that con-
sent. andrews VS.. National, ETC., Com
pany, L. S. Circuit Court of Appeals, Sew
enth Circuit) The power to construct
tracks, switches, sidetracks or turnouts
upon the streets. and by implication the
right to run cars therein. is conferred by
the statute, or, in other words, is derived
directly from the State, so that, strictly
speaking, the city does not grant the fran
chlse. but simply consents 10 its exercise.
Detroit Citizens Street-railway Company
VS.. The City of Detroit, u. s.. Circuit Court
Of Appeals, Sixth Circuit, decided Oct. 2.
implies the right to prescribe terms, and
the terms need not, as L conceive, have di-
rect relation to the specified subjects OF
location, survey and construction" They
may embrace any reasonable requirements,
concerning the operation as well as the
construction of the road, consistent with
tie statute Carefully read, the first and
fifteenth sections OF the ordinance of Jan.
Is, 1854, show the unqualified or absolute
consent of the Common Council given to
the Citizens company Ito lay" its tracks
upon the STREETS named, but its consent 10
the use OF cars on the tracks, or 70 the
operation of a railway, was extended only
10 the fern of fhlTfV wars Ia that 70
s%tricticn valid aid binding? L am inclined
to the view that it is not. Subject to the
reserved power Of the Legislature to amend
or repeal the act, perpetual corporate ex-
istence was given in explicit terms, and, in
the absence OF express or implied limitation
the franchise granted was intended to be
OF like du~ration-Subje only to legislative
revocation. 1t is not to be supposed that
the Legislature intended that there should
be corporate existence without a franchise
the only reason for such existence.
It Is not a question of perpetuity or of
OF construction would prevail. No
presumption, or inference could
1al right, and every reasonable intehidmpent
against 1t should be INDUCED. But danger
in that direction turks rather in
II it had authority to agree to a fran
chise for thirty years IL might. with equal
conclusiveness have stipulated for one OF
sixty or ninety years, or any longer term,
imposing upon the city, it might be for
generations, the evils of a monopolistic
a bSrdensome or Unjust grant. As Was SAID
in Taylor VS.. Bay City Company, 80 Mich.
q, 1t Is highly important that the Legs
lature should retain the power to pass
enactments for the control of these quasi
public corporations suitable to the changed
conditions of affairs The village or small
city cannot well provide regulations and or
dinances applicable to a large city. If
agreements aggrr IN a5s.t by common councils, ike the
ing they must when made operate to sus-
pend pro tanto the reserved power Of the
Legislature by repeating the act. to termi-
nate the life of companies organized under
II. They are inconsistent with that power.
On the contrary. If when made the agree
ments created no vested rights because
made subject TO the power Of the Legis-
lature TO evoke or modify them. then in
s sasii the power OF City city c Councils @iiso to- make @ake;
them Is a mere pretense. 1t is a delegated
BIND or ought not to bind ONE M"I part ssh fhe
corporation, because 1t does not bind the
other party, the State. In respect to such
and, besides being anomalous, the PROPOSE
ton that the city and company will be
bound is manifestiy unjust and unfa1ora ~
TO the public interests.
LEGISLATURES POWER.
The statute is a general one, designed for
uniform application to all cities, but by
the proposed construction uniformity is i'm
possible. An amendatory act could not af-
feet all cities alike. and even in the same
city one company might be amenable TO
legislative action from which another COM
pany would be exempt 1t was well 10 pro-
vide, as was done in the twelfth section of
the act of 1861. that the exclusive powers of
the cities over their streets should remain
unimpaired. except as necessarily affected
by the presence and operation OF the rail-
ways authorized 10 be there. Those pow-
ers, IL was held In Eichels VS.. Evansville.
rs Ind. PSI. did not include the power to
grant the use of streets for street railways,
and they can be regarded, since the passage
of the act of 1861. as having relation not TO
the duration or termination OF street rail-
way franchises, but rather to the manner
the city had authority in the exercise of To-
cal self-government and by virtue OF it's
general control over streets, to grant such
Franchises or 10 consent TO their enjoyment.
IL might follow that q grant for a term OF
years would be valid and would confer a
vested property right which could rot be
destroyed by a repeal of the charter OF the
company to which TX was granted. For in
stance. in New York. the title to streets is
vested in the city. and by reason OF that
Ii was held in People Va. O'Brien, Ill y. Y.
], that an easement granted by the city 10
q Street-rallway company for n limited
time constituted an indefeasible title in the
land, which was not terminated by a re-
peal or the railway charter; but that could
not be SO in Indiana, where the city has no
title to the streets, and has not authority
by virtue OF It's general powers, and out
use OF streets 20 street-raiiway companies.
The general powers OF control, as defined
I'm the city charter, are the same from one
day to another. and must be of constant