The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1898-04-12
ENDS THE CITY COMPANY
JUDGE NEAL READS TT OUT OF
sTREET-CAR LITIGATION.
Its Franchise VIII Not HOId-Court
Also Holds the New Law
Is sound.

car litigation that were favorable 10 Lne
city. Ho holds that the Citizens Street
Railroad Company has no rights to oper-
ate in the streets of indianapolis after 1901,
and that the City Railway Company has
not and never had any rights, as the Board
of Works and Council had no right to grant
a franchise to begin seven years after it's
execution. There was quite a lengthy opin-
ion handed down in the adjudication of the
city Company's rights. Some time ago the
Citizens Company demurred TO the
amended complaint of the city attorney.
This demurrer was overruled and an answer
was filed by the company. Yesterday the
court sustained the city's demurrer to the
answer, thus holding for the second time
that the street-car act Of 1897, otherwise
known as the New law, is constitutional
and that under its provisions the Citizens
Company has no rights in the streets after
1901 AS to what effect the New act had on
the City Railway Company nothing was
said by the court inasmuch as it was
held that this company has no rights,
and had mono when the law was
passed
City Attorney Kern had anticipated no
other result and was quite satisfied with
the finding. 1t now lies with the two COM
panies to appeal They have a year in
which to do this, but announce that they
will prepare to appeal at once. If this is
done, Mr.. Kern believes that the case may
be advanced in the Supreme Court in order
to get the decision Of that court before the
summer adjournment. 1t is believed the
companies do not see any advantage to be
derived from delay and will carry the
case up at once. Mr.. Kern says that every
point that might be raised is in the record,
so that a decision by tho Supreme Court
win settle all points involved in the street.
car situation, unless, of course, the case
is carried to the United States Supreme
Court, which is regarded as not improb-
able. Following is the decision:
At the outset this court desires to ex-
press Its appreciation of the very able and
learned arguments made by the eminent
counsel engaged in behalf of the several
parties to this controversy, both in the oral
discussion and the elaborate briefs rendered
FOR the assistance of the court. The legal
questions involved, both directly and Incl
dentally, in this cause, arising upon the
several demurrers which have been present
ed, are undoubtedly of grave Importance
and many, II not all of them, complex and
difficult; and the interests of the iitigants,
actual or claimed, are of great magnitude
While 1T is altogether improbable, and not
at All expected. that the rulings here made
VIII be hnal, yet am persuaded that it Is
none the less the duty of any judicial
tribunal called upon to determine the rights
OF parties VINO go into court to have those
rights adjudicated and settled, to give the
questions and matters submitted such at
tention and consideration as will enable
such court to reach a solution and decision
that will be reasonably satisfying to its
own conscience and judgment. There is,
however, measure of relief in knowing
that II errors be here committed there is
fun provision and opportunity to have those
errors reviewed and corrected by courts of
higher authority and greater learning and
ability. This court has endeavored to make
q careful, painstaking study and examina-
ton or the questions arising upon said de-
murrers and the numerous decisions. cited
somewhat restricted opportunities would
permit-in order if possible, to correctly APP
prehend and pass upon them; An extended
not be entered upon in these remarks, as
such course would carry them to great
length and probably be of no particular adj
vantage, the main purpose being to state
the conclusions arrived at by the court.
The demurrers remaining to be ruled upon
that or the defendant Citizens Street-rail-
road Company to the amended and supple
mental complaint having been heretofore
overruled-so far as filed are as follows:
apolis to the answer of the defendants, the
City Railway Company, 10 the amended
and supplemental complaint.
2. The demurrer of the cross plaintiff the
Citizens Street-railroad Company, to the
answer OF the City Railway Company adj
former. These will be taken up in their
order.
QUESTIONS ON CITY'S DEMURRER.
Two principal questions arise upon the de-
murrer Of the city of Indianapolis to the an
swer of the City Railway Company:
]. What rights, if any. did the City Com
pany acquire by its contract of April "a, $685.
with the Board of Public Works, and ap-
proved by the Common Council. and the
ordinances adopted by said Council in rela-
city and operate either a partial or complete
system of street railway, particularly on
and after Jan. Is, 1901? Connected with this
proposition; and further subdivided, did said
company obtain the right to construct the
so-called north and south line, hereafter
referred to, Immediately upon entering into
the contract, and, also. the franchise and
grant to construct and operate the remain
der OF the entire system on and after Jan.
~, l9OlI Stated in another form, Was said
contract legal and valid or was it void as
being contrary to public policy?
2 II said contract was and is valid, and
said City Company did acquire rights there
under, how, If at all, are they affected by
the act of the General Assembly of March
o. lSgl. commonly known as the New act?
Great stress in the arguments in support
or the demurrer OF the city to the answer of
the City Railway Company has been put
upon the contention that the City Railway
Company's contract was and is void as
against public policy. The facts alleged in
the answer show, as 1t has been conceded
in argument by counsel, that, at the time
when the City Company's contract was en-
tered into, when the franchise and grant
were made to it for term of thirty years,
railroad Company was then in the rightful
occupation of the streets of the city of In
dianapolis, upon which its street railroad
tracks were laid. and had fun authority to
operate, as it was then doing, its system
OF street railroads, with the right to so con-
tinue until Jan. is. 1901. This concession is
made IN view OF the decision in the case Of
the City Railway Company VS.. the Citizens
Company, which was finally adiudicated in
the Supreme Court of the United States,
wherein 1t was held that, in any event, the
Citizens Companys franchise would rot
expire until that date. When the contract
with the City Railway Company was made,
and the ordinances in relation thereto were
lteved by both of the parties thereto, the city
or indianapolis on the one side and the City
Railway Company on the other, that the
term OF the Citizens Street-raiiroad Com
pany would terminate on the 18TH day of
January, 1894. This opinion was entertained
on the supposition that the extension of
seven years, agreed to in $780, of that term
was void, as having been made without airy
consideration. This question was investi-
gated and an opinion delivered by the city
the litigation hereinbefore referred TO, hold
ing the seven years extension valid shows
conclusively a Misrepresentation Of the law
ny the parties as TO the legality CT such
extension.
FAILED TO Lay IT'S TRACK.
There is nothing in the contract of the City
Railway Company, SO far as L recall, that,
upon its face, shows anything to the CONTRA
~ but what the City Railway Company was
10 begin Immediately the construction of a
small part Of its system, and it was cx-
pressly stipulated that the whole was To be
completed by Nov. 1, 1894, unless prevented
by a restraining order issued out of a court
nnfr ant