The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1898-12-17
FOR THE CITY COMPANY
SUPREME COURTS TO VOTE ON
STREET-CAR LITIGATION.
Citizens Company VIII Have No Right
to Streets After Present
Franchise Ends.

the use of the streets in Indianapolis expire
in 1901. and that the franchise awarded to
the City Street-raiway Company holds
good, and that the company has the right
to take immediate possession of certain
streets in the city not already occupied by
the Citizens Company. The decision fur
Their holds that at the expiration of the
Citizens Company's charter the City Com
pany may take possession of other streets
now occupied by the Citizens Company.
The opinion was written by Judge How
ard and was concurred in by Judges Hack
ney and MeCabe the three retiring Demo-
cratic judges. Judges Monks and Jordan
dissented. In determining whether the con-
tract of April "a, 1898, between the city and
the City Company was valid or not, the
court held that the first thing to consider
was the extent and duration of the rights
of the Citizens Company. In handling TINS
subject the court says:
There is no controversy as to the valid
ity OF the original ordinance of July Is, 1854,
under which said company derived its thlr-
ty-year franchise. The extension ordinance
of April z 1880 under which the term Cf
the company was heightened to thirty
seven years, was also held valid by the SUI
preme Court of the United States, and we
are content with the reasons given by that
nigh court IN support OF the conclusi3n
there reached Granting, then, that the
Citizens Company, under the act OF 1851
and under the ordinances above mentioned,
has the right to use the streets occupied by
1t, and which it may hereafter lawfully oc-
cupy until Jan Is, 1901, the inquiry arises
whether, without additional legislation or
consent given by the city, the company may
continue to exercise it's franchise after that
date. We think it cannot.
1T will never do, as it seems to us, 10 al
nit that by first agreeing to allow the com
pany to enter upon it's streets and continue
there for definite time the city had there
by given up forever that exclusive control
over it's streets which the same section or
the act provides shall never be impaired by
any construction that may be given 10 tle
statute under which the company was or
ganized AS well contend that land own
er, by allowing tenant to enter upon anu
cultivate his farm for a limited period, mas
thereby lost forever the right to occupy IL
himself.
mon honesty as pra cticed between man and
man, to seek for and enter into a, contract,
first for thirty and afterward for thirty,
seven years, and then, when the rlght mao
been enjoyed for the time stipulated ana
agreed to, to turn around and claim thar
the contract was without time limit, ana
that the tenant for a term OF years, Delng
once in, had, therefore, become the owner
of the fee simple. We have no doubt, tnere-
fore. that the right of the CltiZens to d1
panv to exercise it's franchise will terminate
on Jan. Is, 1901"
CONTRACT PROFESSIONALLY VALID
The decision then dealt with the justice
of Judge Woods's decision touching on the
right of the City Company to lay tracks on
the same streets used by the Citizens COM
pany the opinion being that the attempt to
do such a thing would be "an invasion OF
the rights of the Citizens Company and
should be enjoined." Continuing, the court
said:
.'There can be no question, therefore, that
in April, 1898, or at any other time, tne CITY
could, as It did, enter into contract VIII
the CITY Company to lay a street rallrOad
upOn any street not actually occupied py Ihe
tracks of the Citizens Company, or needed
for the operation of its road AS 70
unoccupied streets, prior to Jan. lS, l9Ol tne
rights of the two companies are equal. AS
to streets actually and legally occupied by
either company, including, however, oIly 50
much of such streets as may pc necessary
for the proper operation OF It's cars, the
rights of such occupying company are eA-
LAS to the city itself, it is clear that. as
between it and the City Company, the con-
tract of April "a 1872 IS hnq9esponaG; ny
deed if the law were so unjust ana unrea-
sonable as to forbid a city to enter into a
contract such as that shown by the record,
nroviding for the payment annually into the
city treasury of thousands of dollars, ana FOR
the Improvement, repair and cleaning OF so
much of the streets as is occupied Dy the
tracks and for what is practically equlval-
emf to n AGENT fare; besides securing all
these beneficent results by the giving OF
bond to the city in the sum of 100000,
IT is to be remembered that the bill in
eoiIitv to enioin the City Company was filed
in the United States Court by the Citlzens
Company May il, 1893, within month AFTER
the making of the City Company CONTRACT.
more than this, it is averred in the City
Company's answer to the amended com
plant of the city in this case, and admitted
by demurrer thereto that the SIX mics OK
unoccupied streets designated the horlh-anu.
south line and which the City Company
was to complete in six months, was curing
the very time of the passage of the ordinance
of April "a. 1893, and without the cohsenI OF
sion of by the Citizens Company, which,
thereupon against the written objection and
protest of the City Company ieen i'd
'north-and-south line The Citizens Com
pany, therefore, by it's acts, is In no posi-
lion to charge the City Company with a
failure to resist such action by physical
force, and so comply with its contract.
1.-THE contract of April "a, 1892 conte I'M
plated legal, not armed. proceedings for the
performance of its conditions.
LINE ILLEGALLY BUILT.
''That the building of the Citizens road
upon the 'north-and-south line without
seeking or receiving permission from the
city was an illegal act is apparent from the
terms of the act Of the Legislature under
which the Citizens Company was organized.
1t is there provided that the consent of the
city must be obtained for the location, sur
vey and construction of any line through
any public street before the construction
of such line is ommenced. That the build
ing of said line was unauthorized was the
holding of both Judge Woods and Judge
Baker.
FINALLY, the contention is made that the
Legislature by acts of 1897, Page 154, so
amended Section IL of the act of 1861, supra,
for the Incorporation of street-railroad COM
panies, as in some way to abrogate or an
nul the contract of April "a, 1893. If that
contract was, in fact, valid and binding
it could not be abrogated or annulled by
any act of the Legislature or of the city.
contract with the appellant or with any
other company. 1t simply provides as to ex-
listing time contracts that, upon the final
expiration of such time the rights to use
such tracks in such streets and other pub
lie places shall Immediately termi-
nate and cease forever
1--WE conclude, then, that the right of the
Citizens Company to exercise it's franchise
upon the streets Of the city of Indianapolis
it's contract and also that the agreement
entered into by the city and City Company
April "a 1S93 was and IS valid contract
in praesenti between the parties thereto,
and that said City Company under said con-
tract had "A right 10 enter at once upon the
construction of the north-and- line,
and on consent given by the city upon any
other unoccupied streets and parts of streets
not in use by the Citizens Company or
operation of its lines. and that, on like con-
sent given by the city. said City Railway
Company may, upon the expiration of the
term of the Citizens Company and the va
cation of the streets by said company, en-
ter upon and occupy such vacated streets