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

tent Tor the city 10 grant them 10 the new
company, and 10 give it the present right to
so upon said streets and construct and OPP
crate its line of street railway. 1t appears
that in part of South Pennsylvania street
which was included in said north-and-south
lire there had been laid, some thirty years
before, a number of squares of tracks.
which We're connected and operated for a
time, and later disconnected and abandoned,
the tracks having become covered with
earth and lain unused for nearly thirty
years 1 think it could reasonably be held
that the Citizens Company had abandoned
that part of it's lines, unless an adequate
and proper service to the public did not re-
quire the operation of said tracks it would
be strange doctrine, 1t seems to me, to say
that street railroad company having OBJ
tanned and occupied a street for its pur-
poses, could discontinue the operation of its
cars upon such tracks for a long period of
years and still retain rights acquired by the
mere fact of such previous occupancy.
1t is further insisted on behalf of the City
Railway Company that it was the duty Of
the city, by means of its police power, II
necessary, to put said company in posses
sion Of the north and-south line; that the
Citizens Street-railroad Company, by rea-
son of its having gone upon said route and
laid its tracks thereon, and begun the OPP
Grafton of it's cars over the same, such pos
session having been taken while the Com
mon Council was engaged in confirming the
contract of the City Company, was guilty
of an act of trespass and had no legal right
to occupy or remain upon such route; that
the City Company could not gain possess
sion thereof without committing a breach
clared and given out that it would maintain
its possession by force, If necessary, There
fore, it is maintained that the City Com
pany's rights in the said north and-south
line were in no degree affected or annulled
by reason of its inability to secure the pos
session and construct its line. 1t is further
urged that, as there are about four hundred
miles of streets in the city of Indianapolis,
only about forty of which are in use by the
Citizens Company, it was competent Tor
dinances had the effect to grant, the pres
ent right to the City Company to occupy
and operate it's street railway upon the uil-
used streets; that the Citizens Company
did not and could not hold monopoly or
the streets Of the city
FIRST COME, FIRST SERVED.
take it that the city, as well settled by
authorities, having granted the right to the
Citizens Company to operate its street rail-
road upon any or all OF the streets of the
city, had not exhausted its power, but could
make a similar grant TO another company,
and if both have equal rights to occupy and
use a particular street or streets, and it is
physically impracticable for both to occupy
said streets concurrently, then the first to
occupy would have the better right In this
connection / wish to submit, relative to the
$50 miles of streets, as to whether the I'M
used streets had been abandoned, that it
might be proper to consider and determine
whether the needs and accommodation of
me city and public, during the elapsed time,
demanded Street-railrOad service upon such
streets. If a proper and efficient service
would not require the occupation of such
streets for such purpose, l doubt whether
an abandonment could be predcated upon
the mere neglect to use Them but abandon
ment should be adjudged in case they were
not occupied for a considerable time after
proper service required their use. But while
this may be true, yet it is my opinion, from
anything that appears in the answer, that
the Citizens Company, under its grants and
a aT76 al hn GfF~An re
of the city, had the right to go upon the
streets included in the north-and-south line,
as well as other streets, without further
consent or authority from the city, and lay
It's tracks, even II the ordinances and con-
tract of the City Company were valid; that
its its rights t at least, were equal to those Of
pancy thereof had the effect to exclude the
City Company, / think it would simply
served"
1 take it that the authorities hold, as prac-
teal business necessities require, that a
municipality. in providing for the con-
veniences, advantage and needs of itself and
citizens in the way of light, water, gas and
street railway facilities which are of pub
lie character and neceSSitate often and gen
orally an enormous outlay of money, fire.
quently beyond the resources of the munich
pality itself to afford, rendering it expedient
to offer inducements to private capital to
engage in such business, has the legal right
to make a contract extending over period
of years of such duration as will be reason
muneration to justify individuals and cor
porationS to undertake to supply such needs
OF the city and its citizens.
FRANCHISE TOO FAR OFF.
But although this power to contract and
to contract for a long period of time be adj
mitted and adjudged to exist, when ought
it to be exercised? Are the officers bound
by no considerations Of public policy as to
the time when valuable franchises are to be
granted? Can they act upon the SUPPOSE
ton, however well founded, or even the ap-
parent fact that some time in the future,
more or less remote, after the terms of such
officers shall have expired and the terms
of their successors shall have expired once
or twice over, there will arise the necessity
TO provide for a great public service of the
character mentioned and thereupon proceed
TO bind the city to a contract, even though
the parties act in the utmost good faith
that cannot go into practical effect until
long after the terms OF such public officers
shall have terminated? Or, putting the
competent for the Board of Public Works,
with the consent of the Common Council,
at a time when the city was already sup
piled with street-railroad facilities by an
occupying company whose term would not
end for nearly eight years, to enter into the
contract with the City. Railway Company
as 1T did, for a complete system of street.
railway service for Indianapolis which could
not be constructed nor put in operation
until after Jan. is, 1901? The personnel Of
the said board and Council might be
changed several times before the new sys-
tenn could be inaugurated. The terms Of
office of the mayor and councilmen are two
years, and the Board Of Public Works is ap-
pointed by and holds during the pleasure OF
the mayor.
Then, it is pertinent to inquire what is
the most reasonable construction and inter-
probation to be put upon the contract under
consideration. Was the city contracting for
the single north-and-south line or was it
undertaking to provide for a complete Sys-
tenn Of street railway for the city of Indian
apollS? AS before suggested, 1T has been ar
gued by counsel for the City Railway Com
pany that as to the north-and-south line,
and all other unoccupied streets. the con-
tract was in prasent1, while as to the streets
operated by the other company its rights
were simply postponed until the termination
or the Citizens Company'S contract. For
the city and other defendants it is contend
ed that the contract was not separable, and
II lnValid IN part 1t Is SO in whole. / have
been unable to escape the conviction that
patton and were intending to provide for
complete and adequate Street-railway SyS-
tenn for the city, and that the City Railway
Company was TO be the legitimate and i'm
nealate successor or the Ctitzens' Com
pany as soon as the latter should be ousted,
which II was supposed would occur in jan
uary, 1884; that it was not the purpose at
all, TO have one rival company engaged in
operating a single line through the city
from north TO south, while the other was
furnishing a much greater and absolutely
needed service throughout most of the city:
so that, If by far the principal part of the
contract was imperative and void and
must be struck down, the north-and-south
llne must fall with it. AT any rate, the City
Company, never having secured the possess
sion OF this line, while the other company
ala, ana being postponed as to it for the
same time as it would be kept out of other
streets in use by the Citizens Comnanv the