The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1897-05-01
MORE STREET-RAILROAD LITIGA-
TION.

people and the street-railroad company.
In it's origin the suit was a collusive one,
but it was brought to test a constitutional
question, and as it comes before the court
in a regular way the court will not hest
tate to consider and decide it. Even if it
had been an agreed case an affidavit that
the controversy was real and the proceed
ings in good faith to determine the rights
of the parties would lave made it incum-
bent on the lower court TO try the case.
But in this case there was an actual
though friendly contention, an appearance
of both sides by counsel, and the record
does not show any collision. In the form
in which it has come before the Supreme
Court il presents the question of the con-
stitutionality of the 3-cent-fare law as
clearly and distinctly as it would be posi-
BILE to do in any suit. It's early decision
by the Supreme Court of the State may
have an important bearing on the ulti-
mate decision of the question by the Su-
preme Court of the United States. OF
course, it is understood that the recent de-
cision of Judge Showalter is not final. 1t
is binding while it stands, but is subject
to review by the Supreme Court of the
United States, where it will, of course, be
taken by appeal. The Supreme Court of
Indiana is not bound by Judge Showalter's
decision, and will follow it's own presidents
in constituting the provisions of the Con-
stitution relative to special legislation.
Judge Showalter virtually admitted the
binding force Of those decisions, but by a
xo-xx xoGoo1 .a;,+;..4;o~ - ,o-.o,o5 H. D
cent-fare law from their operation by hold
ing that it came within the provision of the
Constitution which says that corporations,
other than banking, shall not be created
by special act. but may be formed under
general laws" Judge Showalter quoted
several decisions of the Supreme Court of
Indiana with respect, and then, said:
Tn sense of these holdings, l take it, is
that the question whether or not "a general
law can be made applicable never can
ton is a law for the formation of corpo-
rations within Section IL of article IL. This
ton by the people of Indiana in their or
ganlc law that corporations other than
banking may be formed under general
subject either in the Legislature or the
courts.
Following out this view and treating the
Scent law as an amendment to the general
law for the Incorporation of street rail-
roads, he held that it did not come within
the decisions of the Supreme Court hold
ing special legislation in certain cases con-
stitutional. 1.-The Legislature" he said,
cannot first make a law which is, in
reality, general and of uniform operation,
and afterwards amend it SO that by force
of the amendment it ceases to be general
and of uniform operation"
AS already stated, the Supreme Court is
not bound by Judge Showalter's decision,
though if it is good law the court will be
apt to follow it. 1t has decided several
times that it is for the Legislature alone
to judge whether a law, on any given sub
ject not enumerated in the prohibitive
clauses of the Constitution, can be made
applicable to the whole State. In the case
of Mode and others against Beasley and
others in 1895 the court said:
Nearly every Legislature, if not every
one, from that time QS6S) TO the present
has been passing acts that were strictly
local under titles and enacting clauses pur-
porting. to make them general in their OPP
GRAFTON throughout the State. A c%onspicu-
Gus example of this class of acts is what
- CAAN ol4y 90 liz LAC = Vi Il
dtanapoliS, approved March 6, 1891. But
the city of Indianapolis is not named in
the act; both the title and the body thereof
purport TO make the act general and of
uniform operation throughout the State by
providing: That all cities of this State
which had a population of more than 100, 900
inhabitants, as shown by the last preced-
ing United States census, shall hereafter
be governed by the provisions of this act"
And then follows the balance of the first
section and the other 134 sections of the
act, all of which are as expressly confined
in their operation TO the city of lndianapo-
lis by the part of Section l above quoted
as if the city of indianapolis had been
named as the only place where said act
was ever to have any operation or effect
It is to be noted that the act is con-
fined to cities which had a population of
more than 100000 inhabitants, as shown by
the last preceding United States census.
This and all courts in the State judicially
know, and the Legislature knew, that the
city of Indianapolis was the only city in
the State at the passage of the act that
the last census report showed had more.
than 100 600 inhabitants. And, no matter
how many cities in the State might. by
subsequent increase of population exceed
in number the 100000 mark, still the act
could not apply to them, because Indian
apolis alone had a population of over 100.-
coo by the last United States census at the
time of the passage of the act.
Hence the legislative intent is made clear
and undoubted that the act was designed
never to have any effect or operation any
where in the State outside of the city of
indianapolis. while it purports to be a gem
eral act. And yet no one can entertain a
reasonable doubt of the constitutionalitv
OF the act, not because it purports to be
general. but because it is on a subject on
which the applicability of a general law
has been left by the Constitution to the
exclusive judgmen of the Legislature on
inquiry into the facts.
Judge Showalter escaped the force of
this decision by holding that a municipal
corporation did not come within the pro-
vision of tho Constitution which says that
corporations other than banking shall not
be created by special act If the Supreme
Court should take this view it will follow
Judge Showalter. but if it should stand by
its previous decisions, going only one step
further on the same line and in the same
direction, it will hold the 3-cent-fare law
constitutional. In that event the Supreme
Court of the United States would nave to
make the ultimate decision, with a strong
probability that it would follow the de-
cision of the State court. The effect of a
favorable decision by the State court be-
fore the matter reaches the Supreme Court
of the United States may be inferred from
a statement in General Harrison's recent
argument. He said:
There has come to be a rule that gen.
orally, where a question of the interpreta-
ton of a state constitution, or of a state
law, was involved, and the highest court
of the State had passed judgment upon
the question, until there had come 10 be n
settled rule-until the question might be
considered as settled-that in such cases
the aotarfG Of the TTpItnA Cf1tau ,x-,,. H.,