The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1897-12-11

stitution can be effe eted only by a general
law applicable alike to all similar corpora
court below held saying among other
things: This right Ito charge a scent
fare cannot be modified otherwise than as
provided in the charter contract namely,
by amendment of the act according 10 the
terms of Section when read in the light OF
and within the restrictions in the Indiana
Constitution bearing upon the matter of
amendment to that act"
IMPAIRMENT OF CONTRACT
From this premise it is argued that the
question, whether the amendatory act of
1897 is in harmony with the Constitution
of the State, becomes a question of the
impairment of contract within the mean
ing of the Constitution of the United States.
The proposition is believed to be novel, and
for the present purpose that may be its
chief merit, since, so long as the contrary
has not been established, it may be
serted with the better show of reason.
Whether it is sound or tenable is not now
the question, but it is not improper to OBJ
serve that If sound it has a wider scope
than has been suggested. If there is a con-
tract between the Street-railroad Company
and the State to the effect that the act
of 1861 can be amended only by an act
which shall conform to the Constitution Of
the state, that refers to the present Con-
stitution and means that it is not in the
power of the people of the State to so
amend their Constitution as to authorize
special legislation which shall affect the
rights OF this company under the supposed
contract, or of any company organized
under the act of 1861 Rights once vested
WITHIN the meaning of the national Con-
Stitution are protected against impairment
by amendment of state constitutions no less
than by ordinary legislation. The PROPOSE
ton may mean. too that by no independent
enactment, not purporting to amend
the act of 1861, can the charters or
contracts under that act be effected.
For instance, the act of 1884, whereby In
annapolis was given new charter, con-
tains full provisions in respect to street
railroads, and, If valid, would seem to have
been a repeal by implication of the act of
1861, in so far it applied to that CITY, So
the Supreme Court of the United States
seems to have understood when in the case
OF the City Railway Company VS.. Citizens
Street-railroad Company, supra it held that
the charter of the latter company was not
repealed by the act of 1891, because that
Struction.
CITY'S CASES NOT APPLICABLE.
1t is contended by counsel for the appel
liant that the inquiry, whether the Legisla-
ture of Indiana by the amendment of 1897
has violated an implied engagement that
the act of 1861 should not be amended by
any statute Violative of the State Consti-
tuition, does not involve the application or
construction of the constitutional provision
against impairment of contracts and there
fore is not a federal question. In support
of this view are quoted expressions from
the opinions of judges in Jackson VS. Lam
phre, 3 Pet, PSI; Charles River Bridge VS..
Warren Bridge, II Pet, 5S4 Dartmouth Col
lege vs. Woodward, Wheat, 1853; CONNER
cial Bank VS.. Buckingham, How, 81;
Newton VS.. Board, 100 L. s., 54S; Stone VS..
Mississippi, 1O1 U. S.. ST. Church VS.. Kelsey,
121 U. S., 2S2 Lehigh Water Co. VS.. Hyde
Park, 121 II. S., 1888; but in none of these
cases was there involved a question just like
that now under consideration, and what
said, however persuasive, cannot be
regarded as decisive. But further pursuit
of this discussion is unnecessary, because
it is plain that this phase of the case may
be disposed of without determining whether
there has been an impairment of contract.
That the contract between the parties mas
been violated or impaired is asserted, on
the theory of the proposition now under
consideration, solely on the ground that the
act of 1897 is in conflict with the State Con-
sttution. The court below. having juris-
diction of the case by reason of the diverse
citizenship of the parties, even II not on
other grounds, adhered to the view which
it at first declared, Notwithstanding the
later decision to the contrary by the Su,
preme Court of the State, and reaff1rmed
the unconstitutionality Of the enactment ei
er, it followed that the motion 10 dlssolVe
the Injunction should have been overruled,
a 6 it was. and 1t was unnecessary IN THAT
court and on review of the question in an
appellate court it will be unnecessary 70
consider whether question of the impair
ment of contract was or is involved. II,
on the contrary, the conclusion had been
that the act was constitutional there could
have remained no question OF there having
heen an impairment of the contract on the
ground that the act had not been constltu-
tionaliy passed. , 81.
The next proposition on which the Juris-
diction of this court is denied is that by
the ordinance of 1864 and the acceptance
thereof by the Citizens Street-raliWay
Company there was formed a contIacl III
a scent fare between the city of Indian
apolis representing the sovereignty or the
State on the one side and the Street-rali-
road company on the other, Wh 1l taen1
that only 8 cents shall be charged rms
assumes that the act of 1897 is not IN con-
flict with any provision of the State consul
t1tion and the contention is that the COM
pany has a vested right under the cohtract
to charge scent fare, which by no form form
is a distinct assertion that there is a con-
tract right which has been impaired ana,
unless the contrary is clear. 1t makes
case of which this court cannot take Jurls-
diction.
SIOUX CITY CASE SIMILAR.
The decision, which, in it's main features,
seems to be most nearly in point, was
made in Sioux City Railway Company VS..
Sioux City 1873 U. S., SO. In that case the
street-railway company, organized under
general law which contained reservation
of power to amend and repeal not essen
TALLY unlike the power reserved in Section
II of the act of June 4, 1861, was required
by it's original charter-the ordinance of
the city permitting it to occupy the streets
Of the city with its road-to pave between
the rails of it's track. After the company
had constructed part of it's lines and laid
the required pavement between the rails a
statute was enacted to the effect that in
cities of the first class street-railroad COM
panies should be required to pave between
the rails and for one foot outside of the
rails. Two years later Sioux City, having
meanwhile become a city of the first class,
passed an ordinance in conformity with the
statute requiring the company to pave out
side as we'll as within the rails of its track.
Touching the question of impairment or
contract the opinion of the Supreme Court
saws: No question can arise as to the
impairment of the obligation of contract
when the company accepted all of its cor
pOrate powers subject to the reserved power
impose additional burdens upon che enjoy
ment of its franchise. Under the act OF
March Is, 1884, it was made condition OF
the enjoyment of its franchise by the com
pany that when the city should determine
that the streets should be paved the COM
pany should bear certain portion of the
cost thereof, and any prior contract be-
tween the company and the city in regard
to paving was subject to the provisions
of Section 1880 of the code. There
was nothing in the ordinance OF
Dec. II, 1883, which bound or could bind the
city not to exercise its statutory authority
to impose other conditions upon the eXer-
of hn To- - M n