The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1898-04-12

what effect. II any, the said act of March
think it is clear from the decision of the
Supreme Court in the case of the City of
Indianapolis vs. Navin. rendered last June,
that the Legislature still has power to legis-
late upon street railroads in cities Of one
hundred thousand or more population in the
State of Indiana. | think the position can
rot be maintained that the city charter act
amended or repealed by implication any
part of the act authorizing the Incorporation
of street-railWay companies approved June
4 1861 1t is asserted on behalf of the City
Railway Company, on the theory that their
contract was valid and enforcible, that if
the New act attempted to destroy it's rights
Hereunder TO that extent it would be void
as inimical to the provisions of the Consti-
tuition of the United States and the State
of Indiana forbidding the passage of any
law impairing the obligation of contracts.
If 1t be granted that the Legislature had
the power under the reservations contained
in the street-railway act of 1861 to amend
or repeal said act at its discretion. to de-
stroy whatever contract rights the City
Company may have secured, the first ques-
ton to be considered is whether the Legis-
lature has attempted so to do. All pre-
symptoms, I take it, would be against such
strued, If it may be, as not to destroy any
vested right. Also, an equally strong pre-
sumption should be INDUCED that the act
was intended to operate proSpectively, and
not retrospectively.
CITIZENS COMPANY'S RIGHTS.
AS / take it the City Railway Company
got whatever rights it had 10 exist as a cor
poration under, and by virtue Of the street
railroad act of 1861. AS before indicated, in
the humble opinion OF this court its rights
were neither broadened nor narrowed by
the city charter act OF 1891 and that the
contract and ordinances which it entered
into and accepted did not absolve it from
whatever control remained in the General
Assembly over street railroads; that it took
1 lts, charter at such time under said act of
1861, subject to the reserved power con-
tanned therein to amend or repeal said act
at the discretion of the legislature In this
connection, the following language, taken
from the decision in the Navin case is per-
haps, significant: Appellant (city) 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
repeal said act at its discretion, and no con-
tract made by the city with the Street-rail-
road Company could prevent the exercise
of such power BY the Legislature. 1t is
clear therefore, that said act of 1897 (mean-
ing the Scent fare law does not impair
the obligation of any valid contract of
either the state or appellant" Again, it is
said in the opinion, mo new corporation
was created or formed by the act of 1897
(said scent fare act.) Said act was a mere
regulation fixing the maximum rate of fare
to be collected by all street-rairoad COM
panies in cities OF enc hundred thousand or
States census of 1880. Even if said act is
local (Which we need not and do not decided
1t is not special, for the reason that it APP
plies alike to all street railroads that are
now or may hereafter be operated in such
locality, whether there be one or many
In the New act no time is fixed for the
letting to free competition except when the
franchise of the occupying company shall
expire Expressions are frequently used in
the act making it apply to any company
that may now or hereafter occupy the
streets of said city So that, except for one
other consideration which will be mentioned,
it occurs to me the act could be upheld, even
conceding the City Company's contract to
be valid, and that it would have the right to
begin the operation of a system of street
railway in 1901, the act itself not in terms
destroying or annuling its vested rights, if
any it has. There is one provision which is
inconsistent with this construction, and that
is the provision for an appraisement of the
property of the occupying company, with
not become its own successor, to have the
incoming company purchase it's property at
the appraisement. If the provision of that
enactment for the sale of the franchise to
the highest bidder should be postponed until
the expiration of the franchise claimed by
the City Company the provision for the APP
praisement of the present occupying COM
pany'S property would be nugatOry so far
as the Citizens Company is concerned, and
might amount to a partial, If not total, con-
fiscation Of its property. Besides, it could
hardly be thought, i'll view Of the history
enacting a law which was not to have any
practical force until thirty or more years
in the future. Finding it entirely unneces-
sary for this court to pass upon the queS-
ton here briefly discussed, in view of the
conclusions already announced, IL would be
profitless to express any opinion thereon.
Each of said demurrers will, therefore, be
sustained and the proper exceptions noted.