The Indianapolis journal., 1897-04-20
AGAINST CITY COMPANY
4. $. SUPREME COURT UPHoLDs CIT
IZENs' COMPASY's CONTRACT.
Did Not Pass on Perpetuity of Fran
chise, Which Is Good Till 1901
Opinions on Decision.


of Judge Woods. of the Circuit Court. after
modifying it in such a way as not TO pass
upon the question of perpetuity of the fran
chise Of the Citizens Company. Following
is the decree as modified. the words strick-
en- out by the Supreme Court being in pa
rentheses:
"First-That the amended bill of complaint
De and the same Is dismissed without pref
udice In so far as il relates to the parts OF
the streets of the city of indianapolis de-
mentioned ordinance
'Second-That the right of the complain
ant In the use and occupancy for street
railway purposes OF all the streets, alleys,
public grounds and avenues of the city of
indianapolis occupied by IL at the time of
the commencement OF this suit for the con-
Structlon, completion, maintenance, opera
tlon and extension of its street-raiiway
system thereon as asserted in the amended
Dill OF complaint in said last above men
TONED ordinance without regard TO any
limitation of time mentioned In any ordi-
nance OF the city) is quieted, confirmed and
established and the defendant Is (forever)
enJoined and restrained from questioning
or disputing such right or disturbing or
moesting the complainant In the enjoy
ment thereof. and that the ordinance OF the
city of indianapolis mentioned in the
amended bill OF complaint known as general
ordinance No. 81 1893. entitled AN ordinance
ratifying, confirming and approving GER
tam contract and agreement made and en-
tered into on the 24th day of April, 1888, be-
tween the city of indianapolis by and
through its Board of Public Works, and
the City Railway Company, whereby said
company is authorized to construct. extend,
operate and maintain certain passenger
railways in and upon the streets of the
city of Indianapolis together with the con-
tract therein recited, is void in far it
attempts to confer upon the defendant COM
pany any title or right TO occupy the parts
of the streets of said city occupied by the
complainant at the time of the commence
ment of this suit or to abridge the rights
of the complainant company in the use of
said streets as herein decreed.
"Third-That the defendant pay TO the
complainant the costs of this suit taxed
EFFECT OF THE DECISION.
The effect of the decision is TO leave the
question of the time limit of the franchise
where 1t was and TO declare void that part
of the City Company's ordinance giving 1t
the right to such parts of the streets as
were occupied by the Citizens Company
at the beginning of the injunction proceed
ing by the latter company. The suit was a
bill in equity filed by the Citizens Com
pany asking an injunction to restrain the
City Company from disturbing it in its oc-
cupation OF the streets and praying that its
title to right of way in the streets be
quieted. The opinion was read by Justice
Brown and was the unanimous opinion or
the court, with the exception that Justice
Shiras did not regard any modification OF
Judge Woods decree as necessary. The
opinion in part is as follows:
There can be no doubt that the Circuit
Court had jurisdiction in this case. notwith-
standing both parties are corporations and
citizens Of the State of Indiana 1t should
be borne in mind that jurisdiction depends
solely upon the allegation OF the bill, and
not upon the facts as they subsequently,
turn out to be- All that is necessary TO
establish the jurisdiction of the court is
to show that the complainant had, or
claimed in good faith to have, a contract
with the city, Which the iat'er hao at
THAT the complainant had a contract
with the city is entirely clear 1t was so
decided by the court OF Indiana in the suit
OF the Western Paving and Supply Com
pany the Citizens Street-raflroad Com
pany, in which the liability OF the COM
pany for certain street improvements was
discussed and passed upon. 1t is true by
Section IL of the original act OF 1851,
bly, to amend or repeal, at their discretion,
the act authorizing the incorpation or
street-railway companies; but that was
right reserved to the General Assembly It
self, and was never delegated III. In fact.
it could be delegated, to the Common Coun-
ell of the city.
IMPAIRED A CONTRACT.
The opinion declares that it is clear that
the city attempted TO impair this contract
with the ordinance granting the City Com
pany franchise and continues: This con-
tract was entered into in pursuance of a
General Assembly of March 9. 1891, known
as the city charter. This contract and or
dinance OF April "a, 1898. even if otherwise
valid could not be construed 10 interfere
with the rights of the complainant to oc-
cupy the streets of the city under the act
of 1861 and the ordinance OF Jan. IL. 1864,
without coming in conflict with that pro
States from enacting laws impairing the
obligation of contracts. Whether the state
had or had not impaired the Obligations
of this contract was not a question which
could be properly passed upon, on n mo-
ton to dismiss, so long as the complains
ant claimed in Its bill IL had that effect.
and such claim was apparently made in
good faith, and was not frivolous , one
(New Orleans VS.. New Orleans water COM
pany, 1i2 U. s., 1851
Even if the charter were held to have
expired on Jan. Is, 1894, thirty years from
its date. 1t would not have necessarily af-
fected the jurisdiction of the court TO en-
tertain this bill, since il was filed eight
months before that time. although 1t might
have effected the right of the complainant
Did the act of 1891. known as the new
charter repeal the act of 1861. authorizing
the Incorporation of railway companies =
in other words should Ii be construed as
an exercise of the power reserved TO the
city. in the eleventh section of the act OF
1861 to amend or repeal that act, at the
discretion of the Legislature? As the act
of 1891 practically established new system
and vested the whole power or the LeglSla-
ture over street-railway companies in the
Board of Public Works of the several cities
therein named, subject to approval OF the
Common Council of such cities, perhaps IL
might be construed to repeal the former.
so far there was conflict between the
two acts. But II certainly should not be
construed to act retrospectively, or TO af
feet contracts entered into prior to its pas
sage its language being so clear as 10
admit of no other construction. While IL
was doubtless intended to authorize the
Board of Public Works Of the cities covered
by the act to contract for the use of their
streets by railway companies, there is
nothing from which can be inferred
power 10 disturb or interfere with contracts
already existing: indeed. it is highly inn
probable that IL would ever have delegated
such power to a subordinate BODY. There
is always a presumption that statutes are
intended TO operate prospectiVely only
(Schreveport vs.. Cole. l2S [. D, S6l, and We
see nothing in this statute to rebut such
presumption.
QUESTION OF PERPETCITY LEFT
OPEN
The court declined to pass upon the ques-
ton upon which Judges Woods and Baker
differed in the lower court. namely. the
power of the Council TO fix "A time-lirnit TO
| the franchise. The counsel for the Citi-
zens' Company had contended that this lay
ir the power reserved 10 the Legislature
10 amend or repeal and could not be dele
gated 10 the Council. on this subject the
Supreme Court said:
I'VE do not find il necessary to express
an opinion on this question, in view or the
| conclusion We have reached upon the le-
Dismissng the amended ordinance of April
| 1SSO tha court said. while this trans