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

DECISION GIVEN In FULL
CITY'S CLEAN OF HOPE IN IOWA
CASE CITED BY JUDGE WOODS.

pedlS AT chicago handed down a decision
yesterday morning, dismissing the appeal of
the city of Indianapolis in the 3-cent-fare
litigation. The opinion was written by
Judge Woods, the case having been heard
by him and Judges Jenkins and Bum sew
eral weeks ago. The title of the appeal was
"City of indianapolis VS.. Central Trust
Company. of New York"
THE CASE STATED.
Before the opinion is given the following
statement is set out by the court:
The appellee has entered special appear
dhce ana moved in writing to dismiss the
appeal for want of jurisdiction of this court
ronds on su yDic ma "a
are, first, that the case involves question
OF the impairment of a contract in violation
or Section 10 of Article / of the national
constitution, and a question of the denial
OF the equal protection of the laws under
Section l of the fourteenth amendment to
tnaI Constitution; and, second that in this
case a law of the State of Indiana is claimed
to be in contravention of the Constitution
OF the United States in the two particulars
above stated. The appeal is from an inter-
iocutory order for an injunction pendente
lite.
The suit was brought by the appellee, the
against the city of Indianapolis, the Citi-
zenS Street-railroad Company and Charles
>. Wiltsie, all citizens of Indiana. The bill,
prleIy stated, shows that the complainant
IS the trustee in mortgages made by the
Citizens Street-railroad Company upon its
dta h and plant 70 secure the payment
or bonds to the amount of 81 100000, with in
terest, Of which bonds one-fourth are held
In reserve to take up earlier mort
Sed a amd aPe 0 9Se hands been
innocent purchasers for value; that Wiltsie
is the prosecuting attorney of Marion coun-
~, Indiana, charged with the enforcement
of the criminal laws of the State; that the
Street-railroad company is q corporation or
gan1zed under the general statute of the
owner in possession of all the street-railroad
property in and about indianapolis, having
purchased the same in April 1883, Of its
Company, with all the privileges granted
and subject to the obligations imposed by
various ordinances, which are set out in
the bill, enacted by the Common Council of
the city before and since the present COM
pany came into possession; that by Section
Indiana, 1881 the directors of the company
are given power Ito make bylaws among
other things for regulating the running time
of cars and the rate of fares on the road;
that by the original ordinance under which
the Citizens Street-railway Company en-
tered upon the streets of the city and con-
structed its plant it was provided that 1.-The
rate of fare upon any line or route OF rail-
way shall not exceed cents for each pas
seEger for any distance" that under the
statute and the ordinance the rate of fare
was first fixed by the company at cents
for each route, but afterwards was so modi-
fled as to give transfers from one line or
route to another, and on that basis the cars
of the company were run without question
concerning the rate of fare from 1864 to
1897; that by Section IL of the act of 1861,
which, it is said, is the only act ever passed
in the State providing for the incorporation
of street-railroad companies, and under
which all such companies in the State were
organized, it is provided that the act may
be amended or repealed at the discretion
of the Legislature; that by Section IL of
Article IL of the Constitution of Indiana 1t
is provided that corporations other than
banking shall not be created by special act:
hut nod llTx
that on March 5, 1897 an act of the Legis-
lature of Indiana was approved by the Gov
ernor of the State whereby 1t was attempted
to so amend Section of the act of June 4,
1861, as to require, among other things, that
in cities having population of 100000 or
more by the census of 1880 the cash fare
shall not exceed cents for any one trip
or passage etc, and to provide penalties
and forfeitureS for noncompliance with the
requirement; that the enactment is in viola
ton of the Constitution of the State and of
the United States in this: that, Indianapolis
being the only city in the State which, by
600 or more, the statute is local and special,
and it impaired the contract between the
defendant company and the city of Indian
apolis and between that company and the
State of Indiana under the act of 1861 and
the ordinances hereunder passed and ac-
cepted by the company and its predecessor,
the amendatory act being in conflict, 1t is
alleged, not only with Section Is of Article
IL, but with Section 20 of Article l of the
Constitution of the State, touching the
granting of special privileges and immuni-
ties, and also in violation of Section l of
the fourteenth amendment, as well as Sec
ton 10 of Article 1 of the national Consti-
tuition. The motion for a preliminary IN
junction was granted on April %, 1887, the
court holding the act of 1897 to be Invalid
because in conflict with the Constitution of
the State.
On June 10, 1897, the city of Indianapolis
demurred to the bill and entered motion in
writing to dissolve the injunction, one of
the grounds alleged being that it is plain
upon the face of the complainant bill that
IAA 20 1l0 iVaiI1 nfi N
support of the motion to dissolve was pre-
scented decision of the Supreme Court OF
Indiana, rendered in case begun ana car
ried to that court after the granting Oh the
injunction in the court below, whereby the
act of 1897 was declared to be in all respects
constitutional and valid. City OF lndlanapo-
overruled the motion to dissolve, delivering
an opinion which is reported in 81 F. K. l.
JUDGE WOODSS OPINION.
Judge Woods after making the above
statement, delivered the opinion of the
court, as follows:
The right of appeal to this court from in
terlocutOry orders of injunction is given by
the seventh section of the judiciary act of
1891 only lin a cause in which an appeal
from a final decree may be taken under the
provisions of this act to the Circuit Court
of Appeals and 1t is well settled by the
language of the act and by numerous de-
cisions that 'in any case that involves the
construction or application of the Consti-
tuition of the United States the only appeal
allowed is to the Supreme Court, and under
existing statutes that cannot be had until
after final decree or judgment. Hamilton
VS. Brown L. S. App, $40, G. G. A., 639;
Worlds Columbian Exposition VS.. United
States, Is U. S. App, AZ, G. c. A, So; Chi
cage, NJ. * st. +. Ry. Co VS.. Evans, Z G.
c. A, 290; Green VS.. Mills, 20 Z. s. App, $685.
16 c. c. A, 516; Hastings, Attorney General
VS. Ames, 80 U. S. App, 4S5, 10 G. c. A, 62S;
Burr VS.. City of New Brunswick, 80 y. S.
App. Isl, 10 c. c. A, Il; Holt VS.. Indiana
Mfg. Co., % C. C. A, 3O1.
The contention of appellee is, and the de-
cision of the court below, in part at least,
was that by force of the statute providing
for the organization of street-railroad COM
panies and by force of the requirement of
the Constitution of Indiana, Section IL,
Article ?, that all such corporations shall
be created or formed under general laws,
1.-The State entered into contract with this
corporation whereby it was stipulated and
agreed that while that statute might be
either amended or repealed such amend
ment or repeal should only be compassed
by a general law applicable alike to all SIM
liar corporations throughout the State. and
that thus the parties investing money in
such an enterprise did so with the asSur-
ance that no legislation should be taken
with reference to them which did not apply
alike TO all persons interested in property
similarly situated. Western, ETC., Co. VS..
Citizens Street-railroad Company, l2S Ind,
525; City Railway Company VS.. Cluzens'
Street-railroad Company, l66 Y. s., 551.
This proposition assumes that the com
pany had a vested right or privilege within
TO say in the right to construct and to
lfy,a of 81 raj nd