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

may acquire property Tor corporate use for
by the terms of the grant under which its
title is acquired. Nor does the power OF the
s srass ii the a bindIn ase force ,rse"; of the ms son 1a ! be-,
tween the city and the street-railroad COM
pany. Th obligation of a contract
mere fact that it may be determined by
the happening Of some uncertain event IN
the future. Until the contingency arises
ence is to be determined they are as bind
ing and obligatory as though they were
never to terminate. While the power OF
fected. neither the city nor the railroad
company retains any rightful power to inn
pair or defeat the binding force
ordinance and its acceptance. Neither
does this view result in the confis-
cation OF corporate property. nor in injus-
pany. Each enjoys exactly what was mEtt,-
ally and Understandings agreed upon. Con-
sensus facit jus. The denial of this right.
on the contrary, would operate as a fraud
upon the inhabitants of the city. II cannot
be doubted If it had been understood at the
COMMA ah MANI uf1 wnaId tbs MaS a aca,srs t that r,g she
10 use the streets in perpetuity it would
there have been required TO yield greater
would have been denied the right to use
them at all.
AS TIC PERPETUITY.
If 1t be conceded that the necessity and
utility of street railroads will increase with
the growth of the city's population, still the
supply of such need may be. as it has been.
safely committed to those charged with the
conduct Of its municipal affairs. Courts
ought not to construe the statute, unless
such construction is imperatively demanded,
so as to deny to the city the power to de-
termine upon its view of the needs of the
public. when and how long, and by whom
its streets shall be occupied by railroad
tracks. Since the parties by mutual con-
tract have agreed on the measure of their
respective rights. no question can arise as
TO what ought to be done with the property
Of complainant when its contract rights ex-
pire by effiux of time, further than to pro-
tect the rights of each as fixed by the con-
tract. Nor does the fact that power was
given to mortgage its property and fran
chises enlarge the right of the complainant
to occupy the streets. The mortgages and
bondholders were bound to inquire into the
title of the mortgageor, and they will be
presumed to have made their investment on
the faith OF the title as disclosed by the
the city. No injustice is done them, for
they get precisely what they contracted for.
If 1t should be held that the complainant
acquired under the ordinance a right to the
use of the streets in perpetuity it would OBJ
tain a franchise of inestimable value, con-
trary to the terms OF the ordinance, and in
violation OF the rights and just expectations
or the inhabitants of the city.
In my opinion the Common Council had
the power 10 agree with the complainant,
as a condition of it's consent to its occu-
pancy OF the streets upon the term of such
occupancy. Having the right to agree upon
to toe as sse@, upon u io am snla anaa sa ha Of the ane t Tignt
In my Judgment the enlarged term wa val
idly granted upon a sufficient considf ton,
and IL has been accepted so that tn .ghts
Of the parties have become fixed Deyond
the power OF change by them except by
mutual consent. 1t follows that the COM
plainant has an unexpired franchise, for the
protection OF which against wrongful inn
pairment 1T has the right to invoke the aid
of the courts. Nor do l think the
complainant is remediless because it relies
upon Inconsistent positions for relief. The
theory upon which 1t seeks to maintain
franchise to use the streets is perpetual
or whether it expires in seven years. The
relief obtainabie in the present suit is the
same in kind whether it's rights in the
streets are limited or perpetual. A court
will not refuse appropriate relief simply
because the complainant has asked for
greater relief than the facts of the case
This brings us to consider the rights
of the City Railway Company and it's acts
IN derogatiOn OF the rights of the COM
plaintant. The act OF March 6, 1891, which
constitutes the charter of the city Of In
dianapolis, confers upon the Board Of Pub
lie Works, which was thereby created, the
power Ito authorize and empower by con-
tract, telegraph, telephone, electric light,
companies to use any street, alley or pub
lie place In such city and to erect neces-
sary structures therein, and to prescribe
the terms and conditions OF such use, to
fix by contract the prices to be charged to
patrons: provided, that such contract
S 5oara tn to i al s Gonncil be Of s sasn sisa. by Sga said aid
proved by them by ordinance before the
same shall take effect" Acts of 1891. p.
OF April "A, 1898, which is set out in the
ordinance Of approval passed the next day,
md which Is made a part Of the bill of
granted to the defendant company the
right to lay and maintain its lines of
street railway to be operated by electricity
or other improved power, upon certain des-
| ignated streets, man OF which are already
occupied by tracks of complainant and re-
CURED the lines OF the defendant com
necessarily to interfere with the complaint
ants lines and to obstruct the running of
is cars. The contract further provided that
in addition TO the lines herein specified the
party of the second part will be granted
the right to build a line extending from
north and south. on such streets as may
be designated by the Board of Public
w Works rSs sdmm approved Ssdel by - ordinance HllS nee passed
UNDER ORDINANCE.
In May, 1893, the Board of Public Works
| designated certain streets extending from
| Washington street to the city limits, both
north and south, as the streets on which
the defendant company was to be granted
the right to lay and maintain a line of
street railway. The Common Council by
ordinance enacted that the action of said
| Board of Public Works in designating said
line TO be and the same is hereby approved,
| and said the City Railway Company is here
| by granted Said line and the right to the
same in accordance with the terms, pro-
visions and conditions of the contract and
ordinance approving the same Where
there is no express stipulation that the ad-
ditional line should be governed BY the
contract of April "a, 1898, which governs
the other lines, still it seems to me, even
without regard to the explicit language OF
the ordinance of May, 1893, it must be held
that such additional line falls within and
is to be governed by that contract. Such
manifestly was the purpose and under
standing of the contracting parties, and
do not think their obvious Intention can OF
ought to be defeated by the application OF
Here are two parties, the city, by its BOARD
of Public Works and Common Council
and the defendant company, capable O.
contracting. 1t is too clear for debate thaj
all these parties have agreed to the desig.
nation of the north-and-south line, tina
such designation has been approved by or.
dlnance and accepted by the defendant
construction of contracts that 1t is the duty
OF the court TO ascertain and give effecI
to the intention of the parties. If lawful
whenever IL can be done, ut res magfs
valeat guam pereat. 1t seems to me, while
the contract in regard to the north-and
south line is not technically formal, tina
taken as a whole, in connection with thu
ordinance of April "a. 1893. 1t contain
enough to be binding on both contracting
parties
But If I am in error as to the right o.
the defendant company as to the north-and