The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1894-06-22
GEN. HARRISON L
TAKES PART IN s~TREET-CAR ARGU-
MENT JUDGE BROWN.
Petition for Removal to the Federal
Court-An Unusual Point Raised
I'm the FulfOrd Case.

Ex-President Harrison yesterday after
noon appeared in a legal argument in this
city for the first time since his return
here, over a year ago. He spoke for three
quarters Of an hour in the Circuit Court
yesterday evening on the motion of the
Citizens Street-railroad Company to re-
move the suit In which it is defendant and
the city of Indianapolis plaintiff to the
United States Court. The suit is the one
in which the city claims the right to the
streets. The argument for removal was
begun nearly two months ago, but, after
two days. was postponed in order that
both sides might have an opportunity of
looking up authorities. John NJ. Butler and
City Attorney Scott represented the city,
while the street car company's interests
were watched by General Harrison and the
firm Of Miller, Winter & Elam.
TIL argument began at $3.50 O'Clock yes
terday morning and continued until 5
o'clock yesterday evening. General Harri-
son sat through the case, attending closely
to the words of the attorneys and closed
the day by speaking himself. There were
few people in the court room during the ar
gument. Attorney Winter, for the Citizens
company, spoke first. The suit ought to be
removed, he said, simply because it in
volved federal questions. The city, he
thought, by seeking to violate a contract
had invaded constitutional rights. He con-
tende that the contract made in 1864.
limiting the company to thirty years. was
absolutely void and worthless. and that
company, under the amended franchise, to
occupy until 1901, claimed the right to oc-
cupy in perpetuity. Under the decision Of
the Supreme Court, which was clearly de-
fined. the attorney insisted that the case
was clearly removable to the United States
Court, because the defendant might have
filed it's complaint in that court in the first
instance.
Attorney Winter continued for over an
hour and gave way to John NJ. Butler, at
torney for the city. Mr.. Butler concluded
that Mr.. Winters argument was not con-
sistent with the averments of the bill of
complaint. Mr.. Winter had called it a suit
to quiet title, but instead it was a suit to
obtain possession from a tenant holding
over. The city holds dominion over the
streets, alleys, highways and bridges as a
f meniin G she streets pas Is n Ther she 6 HMneE been en t he
claim by the plaintiff that the city railway
in 1854 would have laid down a single rail
from the State. The State in granting a
charter to a corporation provided clearly
rights from the city before the charter au-
thorized the construction of any street
is absolutely perpetual that is granted I'm
der a law by which the LEGISLATURE retains
Dartmouth College case shows that the
charter became a perpetual charter simply
in the sense that no single thing could be
legations Of the contract because the Leg
~islature reserved no right to repeal or
amend. No perpetual rights 70 a contract
can grow up where a charter is subject TO
repeal by the Legislature. The city, by a
single clause. gains absolute dominion over
the streets and alleys. The Citizens Street
railroad Company could not have laid a
single rod of track under its charter de-
rived from the State without having 1t
city, he insisted. The Citizens Street-rail-
road Company occupied the grant for thir-
ty years and then purports to sell Its grant
to another, which went into possession I'M
der the franchise and accepted another
amendment TO the franchise for the same
unexpired term of that thirty years, and
now says that the limitation part. of that
ordinance of 1854 was always void. The
this: It accepts grant for thirty Years
and now says that the grant was dVoid
when It accepted it," he showed b'9ySeG tno,,gnt
should always retain jurisdiction where
there is doubt. The presumption is al
ways against the jurisdiction of the United
states Circuit Courts, and Jurisdiction OF
the federal court should be denied unless
it is made to appear clearly; Mr. Buffers
ed by General Harrison, who desired
counsel to remember the decision OF Judge
Elliott in the case of Eicheis vs.. the
Evansville Street-railway Company. NM.
|. Butler did not close until late in the after
i noon. City Attorney Scott did not speak.
GENERAL HARRISON SPEAKS
General Harrison arose to reply to Mr..
Buffers able argument at 4 o'clock. He
spoke for nearly an hour on the merits of
the case. At intervals he was called upon
by Mr.. Butler to explain some contention
taken by the company. At times the dis
cussion. between the two was quite earnest.
but was always good-natured. General
Harrison contended that a steam railway
company could not surrender its charter
this direction would be interrupted with a
writ of man6amus. The same thing APP
plies to the street-railway company. IL
the Citizens Street-railroad Company
would undertake to tear up its rails it
would soon be served with public ~indigna-
e ttSni nRe ss sante ha nas p ss9,srsa i ahst 1t THIS is
companies, the words: "In perpetuity,s
would say that business was dull and stop
it's cars. Why. the courts would be APP
pealed to from every hand. and on all
sides. The Council could not attach a con-
dition that is inconsistent with the law of
the State. The city has no power; 1T Is
with the State alone. The State laws gov
ern details as to the manner of construc-
ton: it says that the track shall be "a,
gauge of not less than FIVE feet. Is 1T con-
tended that with this in the state law the
City Council could demand a three-foot
or ~six-foot gauge? No. What the State
has decreed stands and annot be annulled
of the street railway is akin to that
rendered by the steam railways. 1t does
not stop; it is a quasi public corporation
that cannot lay down its duty unless by
permission Of the State. Here Is a COR
poration so interviewer with the social and
business relations of the city that to stop
1t for three hours would throw the city
into commotion.
Here is a case in which q. federal ques-
ton is presented. but when a removal is
asked for the plaintiff says that the peti-
is involved. In the State court nothing is
said about the value Of a thing. and they
contend that because the defendant does
not set out the value the petition is not
good. Section 2, acts of 1SS7-SS, allows the
case to be removed only on the motion of
the defendant. and limits the removal to
such cases as might In the first instance
have been brought in the United States
court. Justice Harlan makes the right of
court to the federal court depend upon
whether the original jurisdiction OF the
Circuit Court could be revoked by the
plaintiff. 1t NAV be said that the posi-
ton of the defendant is untenable, but the
plaintiff knows that a federal question Is
to be decided when the case is heard. This
Is an action to quiet title. 1t simply asks
the court TO put the city into possession
of the streets.
That State law was a contract that i'm
posed a perpetual duty upon the Citizens
Street-railroad Company and gave it a
perpetual right. 1t is q right that only the
Legislature can alter. contended General