The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1897-05-19
THREE-CENT-FARE LAW
ARGUMENTS IN ITS DEFENSE BY THE
ATTORNEY GENERAL.
His Brief Filed Yesterduy-0rnI Argu-
ment to BE Heard TO-Day-COm-
pany Declines to Appear.

The 3-cent-fare law will be argued
orally in the Supreme Court to-day, but
the principal argument is contained in the
brief of the attorney general which was
filed yesterday. The street-railroad COM
pany has declined the invitation of the city
to take charge of the argument against
the law, and inasmuch as the city believes
in it, though, for the purpose of this suit
placed in opposition, the opposing argu-
ment is not likely to be very strenuous
effort to overthrow the law. In his open
ing paragraph the attorney general gives
the following succinct account of the case
upon which the question comes up:
This was a suit commenced in the Po-
lice Court Of the city Of Indianapolis to
collect the penalty provided for the viola
ton of an ordinance in refusing to pay the
fare prescribed. The appellee was nned in
the mayors court and took an appeal to
the Circuit Court, where he filed q special
answer, admitting the passage of the ordi-
nance and its validity, admitting that he
had ridden as alleged against him, and had
refused 10 pay the fare demanded, cents,
but justifying his refusal to do so under
the act approved March 6, 1897, (Acts of
1897, p. 2Ul), amending Section of the
street-railWay law ana adding supplement
tary sections thereto, claiming that after
the passage of that act the ordinance was
OF no validity except in so far as 1t re.
quired the payment of cents in place of
D as prescribed by the ordinance; alleging
further that he had rendered upon board
ing the car the full fare of cents and
stood prepared to pay, but the conductor
refused to accept the tender. This was the
only answer, no general denial being filed.
To this answer the city replied, denying the
validity of the act in question for the rea-
son that the legislation was local and Spe-
clal and therefore Invalid because In viola
ton of the constitutional provision on that
SUBJECT.
filed and sustained
Then follows preliminary argument set
ting out the terms of the act of 1861 for
the incorporation of street railways, CIV
ing directors power to fix fares and show
amend. He quotes the United States Su-
preme Court in the case of the G., Is. Il
q. to show that this right to regulate is
not lost by lapse OF time and in the case
of the COVingtOn q Lexington turnpike,
in which the court said:
THE same principles should be recog-
niZed when the claim is of immunity or
exemption from legislative control of tolls
to be eXacted by corporation established
by authority of law for the construction of
a pubic highway 1t is of the highest i'm
portance that such control should remain
with the state, and it should never be inn
piled that the legislative department in
tended TO surrender it. Such an intention
should not be imputed to the Legislature
ii it be possible TO avoid doing SO by any
reasonable Interpretation of its statutes. 1t
is as vital that the state should retain its
control of tolls upon public highways it
is that it should not surrender or fetter its
power of taxation. = 1t is settled law
that in grants by the public nothing passes
merely by implication, and il a contract
with state relating to the exercise OF the
franchises is susceptible of two meanings,
the one restricting and the other extending
the powers of d corporation, that construc-
ton is to be adopted which makes the least
harm to the state"
In this CASE continues the brief 1.-THE
judgment was reversed upon the ground
that the legislation in question was shown
-.
to deprive the appellants of their property
without due process of law, but that Ques-
ton is not presented by this record, and
the question decided by the court as shown
by the opinion of Mr. Justice Harlan was
presented by the record and is, we submit
conclusive of the proposition that there was
no contract right under the act of 1861 by
which the Legislature was forbidden to ex-
ercise the undoubted legislative right to
regulate the tolls to be charged by the com
pany authorized to be formed under that
act, and the act therefore was valid and
su1lcient to accomplish the purpose en-
braced within it unless there is some pro-
vision to be found in the Constitution of
Indiana that prohibited it.
THE SHOWALTER DECISION
In the recent case of the Central Trust
Company of New York VS.. the Citizens
Street-railroad Company of Indianapolis ct
al. decided by Mr. Justice Showalter it
seems to have been contended by the rail-
way company and it's mortgages that the
law in question was imperative because in
violation of Section Is of Article XXI of the
Constitution of the State. That it is not in
violation of Section "a of Article 1 of the
Constitution of the State prohibiting the
passage by the General Assembly of a law
lmpdlrlnS the obligation of a contract is
suihc1ently disposed of by the case already
referred to. That it is not in violation of
section z of Article ~ prohibiting local or
speclai laws IN The cases enumerated is
settled by the fact that not one of the sew
ehteen prohibited matters refers to legisla-
ton OF this character and it remains fhere-
tore TO consider whether the legislation in
question is prohibited by Section % of Arti-
Gle ~ or by Section ID of Article XII
AS construed by this court in Thomas eft
a. vs.. Board of Commissioners of the
County of Clay ct al, Ind, 4, it might
with great force and plausHoility be argued
that the legislation in question was onnosed
to the terms and provisions of Section %
but early in the history of the Sta1e
Ihomas ct al vs.. Board, ETC., was over
ruIed ana IN Gentle VS.. State, 90 Ind 400
while the act in question was undoubtedIv
local ana special and it was contended that
e GWHials 59 IL void as in opposition 10
the Legislature might well have passed n
general law on the subject it was held that
the question as 10 whether a local act could
OF could not be passed was a question for
the decision of the General Assembly and
final. was
This decision was followed in Glen, We
STATE So ma, AIS, the court holding that
the Legislature has the power TO mass laws
local 10 one or more counties whose cir
cumstances may so require, for the creation
OF courts inferior to the Circuit Court
where such laws if of uniform Operation
throughout the whole State, would be else
Wnere mlschleVous, useless or burdensome
10 the same effect is State ex rel
Pltman VS.. Tucker, As Ind, 355 and Viclx-
cry VS.. Chase ct al, 80 Ind 462. In Kelly
treasurer, VS. State ex rel 81 Ind 236 the
same doctrine was announced See alec
the case or Johnson VS.; Board of Com
VS.. the State, 1l3 Ind, at Page 51S IL was
said by Elliott, j.: The provisions which
II IS asserted the act violates is this: Cor
porations, other than banking, shall not he
under general laws 1t cannot, with the
faintest tinge of justice, be affirmed that
the simple delegation of authority to an
point three men to perform duties affecting
the public is the creation of q new cor
poration. The general rule is thus stated
by late writer: "A special act of the Leg
islature regulating an existing corporation
or granting to it new privileges without al
tering its charter or affecting its charter
contract. would not be in violation of the
letter nor the spirit of a constitutional pro-
hibition of this description
THE TERRE 1AUTE ENUMERATION.
I'm State ex rel VS.. KoIsen ct al. 1870
Ind, 434, the controversy grew out of the
claim by the appellee to the office of police
commissioner of the city of Terre Haute
under the act of March 4. 1881 the relator
denying the right to the office. claiming
that the act was in violation of The Consti-
tuition. The act in question provided that
there should be established board of Met
ropoltan police in cities having an enumer-