The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1897-02-12

verse decision. by the later provisions OF
the bill which apply 10 indianapolis alone.
THE rest of the bill is by Its terms linn
tied to the city of Indianapolis. IL gives
to the occupying company the right to tear
up its tracks from the streets. No repre-
sentative of the people of this city would
Venture TO propose such a thing in he be-
lieved that il might occur. 1t Is an intol-
cradle thing. The interruption of traffic
by ordinary vehicles on the street the en-
tire stoppage of Street-railway traffic, the
annoyance, and perhaps the danger to the
public health, involved in the general tear
Ing up or the streets, make such thing
utterly inadmissible, as / have said. 1t Is
more than doubtful whether a street-rail-
way company has now the right TO tear UP
tracks which are imbedded in the streets.
except for repairs, but this bill expressly
conferS the power. 1 am inclined TO be-
lieve. without any careful examination of
the question, that a taxpayer of the city
could enjoin at law the taking up CT the
tracks. And this, with all due Difference
to the trainers and promoters of this bill,
Is the mereSt pretenSe of cOnferrlng a
right upon your company; for everybody
knows that the materials of which the
tracks are composed would sell, when taken
up. for little more than-if SO much as
the cost of removing them and OF repaving
the streets.
The provision for appraisement and con-
company should be compelled to accept 1t.
and the city should be compelled to find a
company that would pay it. or to take 1t
itself; or, failing this, TO give new term
TO the occupying company
THE process provided for an appralse-
ment in the substitute bill is fairer than
the one provided in the original bill. do
not know that there is any fairer method
of ascertaining the value of the property
than the trial of the question before jury.
But the plan proposed Is unequal in It's OPP
erations and therefore, unfair. III the sue
cessor company initiated proceedings Tor
an appraisement and an appropriation o, or
your property. your company would be
compelled to accept the appraisement
reached.
Upon the payment of the appraised value
of the property into the clerk s office OF the
Circuit Court the bill invests the successor
company with the title to all your prop
erty-if ii chooses to take 1t. No option Is
left to you but the successor company.
after having subjected your company TO a
very large cost in the trial OF the appraise-
ment case, may decline to take the prop,
erty. If it were true that this bill provided
in such case for judgment against the
successor company it would be worthless,
for that company has no assets-save the
$4,000 of subscribed stock which the law re-
quires-out of which to satisfy a judgment
for several millions of dollars. 1t does not
even forfeit the charter of the successor
company if it refuses to take the property
at the appraisement, but only gives thk;
power to the City Council to revoke II. The
original bill made 1T the duty of the Com
mon Council to revoke the contract and to
proceed to make new contract. and de-
MED to the defaulting company the right to
compete for the new contract. This penalty
is much softened towards the City Com
pany in this bill, and If its harmonious re-
iations with the city are not disturbed. it is
in a position. after the appraisement. TO
upon your inability to use it, and upon the
fact that no other company is in position
to buy it-for none other is authorized to
use the streets of the city.
THE proceedings stop right there and the
situation is this: The successor company
has experimental with a jury as to the
value of your property, has been diSSatiS-
fled with the result, and concludes that as
you can sell to no one else, II can get the
property at less price than the appraised
value. The bill contains no provision for
any further proceedings. If the city still
stands by the City Railway Company, in
the purpose to carry out what was attempt
ed in 1893. your company would be precise
ly as much in their power as If no provision
were made in this bill for an appraisement.
You have the tracks but cannot use them,
and there is but one bidder who can buy
and use them. and that is practically con-
fiscation. What 1 cannot use, and only one
other person can. he appraises.
If as / have suggested, this appraise-
ment is to be in good faith and effective.
both parties should be compelled to accept
its results. Your company is under a COM
pulsion stronger than million-dollar bond
to let the property go at the appraiSement.
for you can make no other use of it except
to take ii up. and that is to destroy its
bond or penalty to accept the appraisement.
1t is not. by this BILL even excluded from
fresh competition: its charter is not for
feited, but preserved at the option of the
city. But again, suppose the new company
should say: We will not file a proceeding
for appropriation; we prefer 10 maintain
der for your property The statute does
not compel the successor company to in
itiate such proceedings. But, If it does not,
the bill says your company may file in the
Circuit Court of the county in which said
city is located "a complaint or petition for
an appropriation and assessment of dam
ages
Il think this proceeding is wholly novel.
and as incOngruOus as il is novel. We are
TO file petition for the appropriation of
our own property. 1t is still in our pos
session. No action for damages has accrued
to us against the City Company. 1t has eX-
pressed no purpose to take our property
has taken no steps in that direction l think
in the whole range of litigation nothing
can be found like this. You are to make all
persons In interest parties TO your petition
You would name the City Railway Company
and not the mortgage trustees. You would
ask that the property might be appraised,
and that the City Company might be COM
PEELED TO take it; and. if the law provided
an effective way to force them to take it,
there might be some support for such a
proceeding But it does not L can see no
reason why the City Company, being made
interest in the proceedings and go out of
court. electing again to trust to the coer-
ciOn of circumstances, rather than to an
appraisement, for appraisement of the
value of your property. In my opinion, if
the successor company appeared and dis
claimed any interest, or demurred and de-
the whole proceedings Yes more than that.
very much doubt whether any court
would entertain them in any case, as by
the provisions of the law the court is not
allowed to proceed in any judgment in the
case. A case that cannot go to judgment Is
no case-is not judicial proceeding.
Il note in conclusion the fact that whereas
the former bill limited the power of the city
of indianapolis to grant franchises to street
railway companies to thirty years, this bill
contains no such limitation, and under it
the City Council of Indianapolis would have
the power to make a contract for one hun
dred years; and if it were made. the au-
thority to make it having been given by the
Legislature, the legislative power to amend
or repeal could not be made to affect vested
rights under such a contract 1t may be
that our people, in the long experience they
have had with city councils in connection
with the regulation of gas and other COM
panies, have such confidence in that BODY
as to be willing to give it the power to
grant such franchise. 1t would be a
larger franchise than the one claimed by
your company in the pending litigation in
the United States Courts Your claim was
the period Of operation. but you have al
ways conceded that there was full power
in the Legislature to do so. and to Law any
other restrictions or burdens that il might
choose Under this bill the power of the
Legislature would be gone. and the power
of the city once exercised would be gone
if a city council were induced TO grant a
hundred-year franchise.
In my opinion. the substitute bill is sub
ject to even graver and more conclusive
objections than the original. There are some
constitutional objections to the bill, but this
letter is already so long that / omit the dis
cussion of them here"