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

lines, and it does not appear that the board
made any further agreement on that sub
Which the adaitIe enasnI lines Should be laid.
and. for the apparent purpose OF supplying
the defect. the Common Council added TO
1893, a clause to the effect that the right so
conferred should be subject TO the terms.
Pr row % al ana condi5ionS OF sn9r 9UiinlaI tbs 81
contract. By the act OF 1Ss. distinct powers
are conferred upon the Board or Public
spectively, and a Just regard for the rights
Of the public requires, hat the dlstinc-
ton should be respected. The power of the
prove or refuse 10 approve the contract OF
the board. IL the mere designation by the
board Of the additional lines amounted to
Gil to approve it in that shape or disap-
prove it. There is nothing to show that
the board Ga INTENDED ana Il c or s = yec a.d
sary implication, that the lines. SO desis-
mated should be held and operated under the
R PtSst wS Sslet tine mode ins Of f'' contra ting Is
especially and plainly prescribed and limit
ed. that mode is exclusive and must be
City of Superior VS.. Norton, Us. c. c. A,
Seventh Circuit, June Z, 1894. Terre Haute
vs.. Lake. 4s Ind. 4so. Francis VS.; Troy, "A
Company, 2 Cranch, III. 16s. Chief Justice
Marshall said: 1.-The act of incorporation
is to them an enabling act 1t gives them
al tAAN WV ttACI 1875 -
to contract, and when 1t prescribed to them
a mode of contracting they must observe
that mode, or - the .sd instrument n T. me bod no b more ns ere-
been Incorporated" Approved Merrill VS..
Monticello. 1888 T.. s, S7s. sS7. While it is
not a question which need be decided, 1 in
cline strongly to the opinion, upon the
showing made. that the City Railway Com
pany acquired no right to lay Its so-called
north-and-s0uth lines.
EQUITABLE RELIEF.
~ tho nthor h4nl ~ Of aninfnn
that the complainant Is not entitled to
equitable relief in respect 10 its alleged
rights in the streets so designated for the
use of the defendant. Prior to that desig-
nation the complaint had no lines upon
those streets, except a fragment on Penn
sylvania street, which had been practically,
If not legally. abandoned. By its W
charter, as 1 construe it-indeed, according
to the plair letter-it has no right to COM
mence construction on a particular line
without having first obtained the consent of
the Council to the location, survey and
construction" proposed. The necessity for
this consent was not affected, as / think,
by anything contained in the ordinance of
Jan. is. 1854. or In the supplemental ordl-
of the complainant upon those streets
was in violation ST the ordinances of 1889 and
1893. and If rights were thereby acquired,
the complainant, in view of all the circum-
stances, should rely upon the courts of law
for their defense, rather than look to equity
for their establishment.
The question whether the last named
ordinances are valid or not need not be
considered, because by its own charter the
complainant had no right TO enter upon a
street without the consent Of the city, and
the city was free, with or without reason.
to give or withhold Is consent. In respect
to other streets, the defendant has denied,
by its answer. the assertion of any claim
to the present occupancy or the part of
any street upon which the tracks of the
complainant are laid, or that it is desired to
lay and operate electric lines on any street
upon which the complainant was, when its
electric line Until after the expiration of
its right thereto, If any 1t has" But from
under which the rights of the defendant
are asserted, from the notice which it
served upon the complainant, from all the
the arguments Of counsel, it is evident tbs
the defendant has been acting upon the
assumption that the compliments fran
chise and its right Of possession of the
streets have ended, and that, under it's
contract. the defendant may take the pos
session which the complainant has held of
the streets, If not indeed of the complain
ants tracks.
The power given by the act of 1891 to
panies of various kinds named to use any
street of the city, i think it clear, was
not intended as a repeal of the franchises
of existing companies-no more so of street
railway companies than of the various rail
road companies whose roads occupy streets
contract Of April "a, 1853, by its terms con.
fers or attempts to confer upon the de-
PENDANT mpan the right to lay its tracks
in the place OF the tracks of the Citizens
companyt or to appropriate those tracks
ii is en- Invasion of the rights of the latter
company and should be enjoined. / am moi
to be understood as meaning that under the
act of 1891 the city may not authorize the
defendant or any other company to, laySits
tracks IN the same streets ON which, the
compiainaDt'S tracks are laid. but, Withoilj
additional legislation, the cars of one com
pany may not without consent run upon the
rails of another company, nor may the
rails of one be so laid as to prevent on
needlessly impede the running of thS
others cars. Decree may go accordingly.