The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1897-06-12

NIOIdIIOW
tutional provision on that subject. APP
pellees demurrer to this reply was sus-
tanned. Appellant refusing TO plead fur
Their, Judgment was rendered in favor of
appellee.
THE only error assigned calls in ques-
ton the action of the court in sustain
act of March 6. 1897 is unconstitutional
the judgment of the court below must be
reversed but If constitutional the judg-
The act authorizing the incorporation
OF street-railway companies was APP
proved pro Jan 1861 Acts special session
Section 4143 ct seq, 1851 Section of said
act. being Section 545s, r. s.. 1894, and Sec
ton 415l, X. s.. 1881, provides that the
directors OF such company shall have power
to make bylaws for regulating the
fare of said road or roads. In this act the
Legislature made no provision for the regu-
discretion Of the board of directors until the
Legislature should see fit 10 make other
The act of 1897 re-enacts said section,
with proviso that in cities in the State
having population Of 100000 or more ac-
cording to the United States census of 1890
the cash fare shall not exceed 9 cents for
any one trip or passage upon the street
railroad or roads with transfer
LEGISLATURE CAN FIX FARES
ut is insisted by appellant that the act
of 1897 is unconstitutional because it inn
pairs the obligation of contract. Counsel
for appellant do not point out any con-
tract the obligation of which is impaired
by said act
If 1t is the contract under which the
street-railway company took possession of
the streets of indianapolis and constructed
its tracks it is sufficient to say that the
city was not authorized to enter into any
contract which would prevent the Legisla-
ture from legislating upon the subject of
| q |
ture has the power to reasonably regulate
thelrat of fare for transportation of pas
Sen$erS within the State on street rail-
ways. (Hocket VS.. State 105 Ind, $50, 258
2o9; Central Union Telephone Company VS.
Bradbury 106 Ind, IS; Central Union Tele-
graph Company vs.. Fally, us Ind. 1884, Rug
gler VS.. Illinois, Lo s. u. S. 526 531; Storm
VS.: Farmers Loan and Trust Company
1l6 T. s; 3g7, 325; Dow VS.. Bidelman l25
I. 5. $50 6SS; Covington, etc, Turnpike
Road Company vs.. l.. Sanford. L. S., Oc-
tober term, 1896; Covington, etc, Bridge
2l5; Il Sup ct Rep. iSS; Weliman, vs.. chi Chi
cago, ETC. r. Company, SO Mich 592; St
Louis. etc, Railway Company VS.. Gill, "a
Ark 10l. II l.. X. A. 452 and note)
Besides Section II, of said act of 1861
being Section 5463, r. s., of 1894, Section 4153
r. s., 1881, expressly reserves. to the I4egis-
ture the right to amend or repeal said act
at it's discretion.
'The right of the Legislature. however
roads organized under the act of 1861 does
not depend upon the reservation of the
right to amend or repeal the act in Section
II of the act. That power would exist even
II the right to amend or repeal the act had
not been reserved. In order to exempt a
common carrier from legislative control
over its rates of fare it must appear that
the exemption was made in its charter by
clear and unmiStakable language, fncOnSist-
ent with the exercise of such power of
the Legislature. (Covington, etc. Turnpike
Road Company VS.. Sanford, SUPRA Bank
ing Company VS.. Smith. 128 L. s., ia; Chi
U. S. 1861 80
Appellant had the power to prescribe the
terms upon which and the time for which
a street-railroad company organized under
said act of 1861 should occupy the streets
of said city, but such contract when made
was subject to the right of the Legisla-
ture TO amend or repeal said act at it's dis
erection, and no contract made by the city
with a street-railroad company could pre-
vent the exercise of such power by the Leg
lSlature. 1t is clear therefore that said act
of 1887 does not impair the obligation of
any valid contract of either the State or
appellant.
CANNOT CONFISCATE, HOWEVER.
1.-The right to regulate the fares on street
railroads however, does not include the
power to require said, companies to carry
passengers without reward, or for such
sum as would amount to confiscation, or
the taking of property without compensa-
ton or due process of law A statute con-
tanning such requirement would be in vio-
lation of the provisions of the Constitution
of the State, as we'll as the provisions of
the Constitution of the United States
No facts alleged in either the COM
plant or reply show that the act of 1897,
fixing the fare at cents by its necessary
operation deprives any street-railway COM
pany of its property without compensa-
ticn or due process of law, therefore that
question is not presented for our determi-
nation. dow VS.. Bedleman, Covington,
etc, Turnpike Company
1T is next insisted by counsel for appel
liant that said amendment is a local and
special act and IS therefore In conflict with
Section 10 of Article Il of the Constitution,
which provides that corporations other
than banking shall not be created by spe-
cial act. but may be formed under general
laws. The power to declare a statute UNI
constitutional is one of the highest in
trusted to judicial tribunal, and is only
to be exercised with the greatest care, and
only when there is no doubt of the uncon-
stitutionality of the law. If there is any
doubt in the mind of the court as to the
ccnstitutionality of law it must be re-
solved in favor of its validity. To doubt is
TO resolve in favor of the constitutonality
of the law Citizens Street-railroad
Company VS.. Haugh, 142 Ind 254, and cases
cited; State ex rel. VS. Roby, 142 Ind. 16S }
1t is not necessary under the provisions of
Section % of Article declaring that all
laws shall be general and uniform through
out the State, that legislation concerning
cities should operate uniformly on all the
cities in the State to make 1t general.
THE 1897 LAW is GENERAL.
"a law which applies to cities having a
population of 100000 or more when there is
but one such city, but is so framed as to
operate on all other cities in the State
as they acquire the necessary population
is a general law, because it operates upon
all cities alike under the same circum-
stances. pennsylvania Company VS.. State,
AZ Ind, 1881
Neither is it necessary that law con-
corning the fares to be collected by street
railroad companies shall operate uniformly
on all street railroads in the State. 1t is
sufficient if it operates alike upon all such
companies under the same circumstances
within the meaning of the Constitution.
pennsylvania Company VS.. State, supra
and cases cited; Bell VS. Mash 1877 Ind.
226; Young VS.. Board, etc, 1877 Ind, 232
Gibson vs.. Board, etc, Us Ind. 60, 50 and
cases cited Elder VS.. State, 80 Ind, l62;
Heanly VS. State, "a Ind, SO; State rel.
etc. IS Ind 1913; Groesch vs.. State AZ IND.
547; note to State VS.. Elicit, Il Am. st.
Rep. 7S0-7S9)
Counsel for appellant seem to under
stand that this court held in Mode VS..
Beasley, 143 Ind. 3O6 that the words last
preceding census refer only to the last
census taken before the passage of the
act, and not to any census that may be
taken after the act was passed. The rule
is otherwise. Such words in a statute refer
to the census last taken, whether before
or after the passage of an act, unless the
contrary appears In the act itself
80. that although a city or town may
not have the required population when
the act was passed, yet at any time in
the future when any census taken after
the passage of the act shows that the