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

follows:
which holds that no subject or citizen can
lawfully do that which has tendency to
be injurious to the public, or against the
ence to the very sources from which the
corr mon law is supplied The common law
will not permit individuals to obligate them
selves by a contract % do or not TO do any
thing, when the thing to be done or omitted
is in any degree clearly Injurious to the
i am of the opinion that public officers,
clothed with power to enter into contract
for their municipality and for the supposed
benefit of the people thereof, and who may,
and do grant the use of it's streets, as in
this case, in providing for street-railWay
facilities, are unquestionably by SUCH acts
exercising powers held in trust for the peo-
pie whom they represent, which are not TO
be- dealt with in an arbitrary manner as the
caprice, interest or within of such officers
might induce them to act; but are to be eX-
ercised with a strict and high regard for
the highest welfare of the city and its citi-
zens. All must concede, 1t seems to me,
that any other rule would amount to a per-
version and prostitution of the sacred trust
which such officers hold in their hands, and
lead to outrageous abuses under which any
people would justifiably become quite rest
i've. If the Board of Public Works and Com
mon Council have the power to enter into
a contract with a Street-railWay company
whose occupation and service are TO begin
eight years in the future, such contract be-
ing made at time when the city is amply
supplied in that respect, could not the same
power be stretched so as to authorize a con-
tract with another company for system
TO be put In operation still further IN the
future, to wit, at the expiration Of the term
to begin eight years subsequent to the exc
cution of the first contract, whether the
period of occupancy fixed in such contract
be ten, twenty or thirty years? Can prob
able future necessity be so anticipated?
Many reasons occur instantly to the m ma
why it should not. In the first place, the
inducement to corruptly make, possibly IN
q. secret manner, such contracts, to the det-
riment of the public, IS an evil to be sedu-
guarded
good faith, as the court can readily believe
was true as to the contract in question, yet,
power at the time could as thoroughly COM
prehend the needs of the public, and the
best facilities for supplying them, as could
those who, at the time when the necessity
for the public service is at hand, are i'll
position TO represent and act for the city?
To provide the best methods and means to
afford a great modern city those conVen-
fences and accommodations which have be-
come an essential feature of urban life,
genius: In comparatively brief time cities
of to-day have passed from the street rail
road propelled by animal power to cable,
electric and elevated roads. What improve
ments will be made in a very few years
cannot be foretold, yet we must believe
that the same rapid progress that has been
going on for a quarter Of a. century will
be maintained Besides, the development in
municipal government and administration,
made not only in our own State and coun-
try, but throughout the world, during the
past few years, has been considerable.
Many of the best minds have been exerted
to discover and formulate new systems and
apply new principles to these affairs. Who
could tell but that at the end of the eight
year period the city OF Indianapolis might
decide mat municip1al ownership OF us It's
public interest? Since that contract was ex-
ecuted which provided for scent car fare
and certain percentages of the gross re-
ceipts of the company TO be turned into the
city treasury, the Legislature of the State
has enacted law fixing the street-car
thus keeping pace with the tendency to
lower charges for transportation. Another
important act has been passed by the
General Assembly, to wit, for letting the
street-railway franchise to free competf
ton. Thus, a contract entered into in 1898,
which would appear to be an excellent
thing, might be entirely. unsatisfactory and
unsuitable eight years later.
EIGHT YEARS TOO LONG.
In this connection, 1 think it proper to
state that, as it seems to me it must be
held, it would ordinarily be competent for
the authorities of a city, in anticipation of
the expiration of the franchise of COM
pany already engaged in furnishing the city
with great public service, in order that
there should be no break in the continuity
thereof, or as little inconvenience as posi-
BILE, TO enter into a contract for continued
service long enough in advance of such ex-
plration as to prevent even a temporary
words,
that the authorities, unless controlled diff
ferently by positive enactment of the Leg
lslature may lawfully act when the ext
gency arises, and that 1t does arise at the
time when, If action be not taken. the city
will be sorely Inconvenience and such pub
lie service stopped. But was eight years
City. Company's contract was executed in
April, only little over nine months in adj
1,s. of the date which had been accepted
by both the company and the city as the
time when the Citizens Companys rights
would terminate. AS before observed, 1t
was stipulated that the new company was
to have all of its system finished and in
working order by Nov. l, 1894. This amount
ed to an expression of the judgment of the
enough to put in a street-raiway plant and
install a new company. Let me add that
I cannot concur in the position earnestly
insisted upon that the city charter act of
1891 materially affects the questions in hand.
1t seems to me that the Legislature simply
intended to confer upon said board the
power to enter in the first instance into q
contract, which power had heretofore rest
ed in the Common Council.
The answers to both the complaint and
the crosS-complaint fairly show that it is
impracticable, If not impossible, for two
different street-railroad companies, operat-
Ing separate and distinct lines, to occupy
the same street at the same time. In the
answer to the cross-complaint it is averred.
In accordance, as take it, with what has
been conceded in argument, as follows:
And this defendant denies that it was the
purpose of the Board of Works, or of said
CITY, or OF this Qe1enQanC, In the making
and approval of said contract, to confer
upon this defendant any other right as to
the streets then used and occupied by the
Citizens Street-railroad Company than to
occupy and use said streets whenever and
as soon as the right of the occupancy of the
Citizens Street-railroad Company should
expire or be terminated And next, it is
further alleged that such rights will expire
and terminate by virtue of the provisions
set out in cross complaint and the laws of
the State OF Indiana on, to wit Jan: Is. 1871.
Counsel for the City Railway Company
have called attention to the decision of the
Supreme Court of the United States in the
City Railway Company VS. the Citizens
Company, in which it was held that the
seven years extension of the franchise of
Council in 1880, fourteen years before the
expiration of the franchise originally grant
ed TO its predecessor, was valid and binding.
AS | read the opinion in that case the ques-
ton as to whether the contract SO made
was against public policy was not raised
nor considered. But it was held that the
Citizens Company, having, on the faith of
such extension, bonded its plant in a large
sum, justice to the bondholders would estop
the city to contest the legality of such ex-
the plant was sufficient consideration for
the new grant. The city not party to
that litigation, and is not bound by the de-
cree entered therein. In the case of the
Citizens Company, it was already operat-
ing under a valid franchise and contract,
it's plant and the operation thereof were
open and visible facts, and the character
of its service was known to the city and its
citizens. BY permission of the city, it had
afterwards made great Improvements in it's
service, changing from animal power to
electric, and in so doing had expended largo
sums of money, and it was made to appear
that it would be seriously damaged il not
permitted the extended time. AS to the City