The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1899-04-06

the provisions Of the eighth section any
( with company not al the time possessing
/ any franchise rights 10 surrender would be-
come nugatory AID void. Unless such con-
| tracing company shcu ld by the period fixed
| in the statute become the owner by purchase
/ of the occupying ccmpany,s rights.
This fact. IL is asserted, practically pre-
/ cludes the city from contracting with any
/ company other than the occupying company
| or one which shall. al the time of entering
/ into The contract. have already acquired the
/ rights OF the occupying company.
| We have already seen that under the hrst
pany organized since the census Of 1890. The
| two sections must be construed together; and
| II by any reasonable construction both sec,
tons can be made 10 harmonize and stand
| together. are required 10 adopt that con-
/ struction, rather than one which would
render either section nugatory.
OITY'S POWER TO CONTRACT.
Constituting the two sections. under the
rule as above stated. think the true In
tent and meaning 10 be that the ciE may
contract with any company which. in the
| judgment OF the municipal authorities. oners
the most advantageous terms TO the cry.
without regard TO whether such company
has or has not any franchise 10 surrender.
And ;hat after entering into such contract,
| such contracting company shall have until
| the nine 90 months period named in the
| salute within which 10 acquire by purchase
4
| cupying company. But faihng IN Wnich.
| said contract would be unavailing. and the
| further occupancy of the streets would De
| open 10 free competition.
| We cannot. however. presume, as mat
| ter of law, that such contracting company
| would not be able 10 procure such existing
I pany its successors or assigns within the
! period named in the statute.
| IF right in this construction then
| the plaintiffs or any other combination or
individuals have now the right at once TO
| to the city Tor a street-railroad franchise.
| and IL they should be able 10 satisfy the
municipal authorities that their proposition
| was more advantageous 10 the city than
! that proposed by any other company, We
have no doubt that they would be awarded
| ute which viii preclude the city from
awarding IL TO them. and we cannot pre-
So isfegard di and VioIade their trust as TO
choose that which was clearly the less ad-
ySntageGus to the city 6 gras sve fhe court
| would be powerless TO prevent II, II being
a matter within their judgment and discree-
| bility. But, for the purposes Of this con-
tentiOn, whenever IL appears that under the
Of the statute the ety o IS n partcnsr
companies 10 the exclusion OF others. then
the objection to its constitutionality is met
OLD COMPANY'S ADVANTAGE.
''It was claimed. as we understand plain
| tirs' argument, that in making proposals
for a franchise under the statute In ques-
| ton, the Indianapolis Street-railwsy Com
pany would have an advantage over other
| companies in bidding. in that 1t has already
| acquired the franchise rights of the occupy
ing company, ready TO be surrendered upon
| the granting of a franchise, and thus TO be
enabled 10 Immediately enter upon It's con-
tract rights while any other company would
necessarily be postponed until it could ac-
| ire cstnh -iYe .an rights
failing in that, it would be compelled again
TO go into open competition
"Conceding that the Indianapolis COM
pany would thus have an advantage over
other companies, yet such advantage arises
from conditions existing wholly OUTSIDE OF
the statute, and not by virtue OF any pro-
The fact that the present occupying COM
pany possesses franchise rights. or that the
indianapolis Street-railway Company has
| purchased the same, cannot be charged 10
the statute in question. Ii did not create
them. but Ii only operates upon conditions
But even if it be conceded that the
statute is so worded as to afford one COM
pany an advantage over ali others oy , ia,
| son of said conpany's possessing tnstt Wnlch
the Others have not we 90 not MINK II ,h =
| city from awarding the contract 10 some
one OF said other companies. The fact which
is alleged in the complaint that the Inala an
| apoIis Company has already acquired the
| franchise rights of the occupying company
| and is prepared TO surrender the same upon
| The granting of a franchise does not compel
| the city to grant said company FRANCHISE.
Terms may be offered by some other COM
| many so much more favorable 10 the city
| on matters other than the surrender OF ex-
listing rights as 10 overbalance any dement,
| which might accrue TO the city by a present
surrender of such existing rights, and as
would make IL 10 the interest OF the CITY
to accept such other proposal and rely upon
| acquiring the occupying company's rights
by condemnation proceedings later on under
the provisions Of the statute.
ITO illustrate: Suppose that the plaintlfis
| or some other combination OF individuals
would organize corporation TO operate
street railroads. and should propose to the
city TO enter into contract on the basis
| of straight 3-cent fares. with universal
transfers. and in addition should propose To
! pay into the city treasury in payments the
sum OF 100000. and TO comply with the
other provisions of the statute in regard TO
| bond, paving streets, etc, the city would
be at perfect liberty TO accept such pro-
posal.
LAS we have already said. the city is under
no compulsion to accept any companys pro-
| posal. ii seems To us. under the terms or
this statute. that the city is master OF the
situation and holds the whip handle, so 10
: speak. II has the right, within the limits
found in the statute. TO fix absolutely the
and if no satisfactory offer shall be made
II may hold off and make no contract until
the period arrives when the right OF occu-
paEcy must be open TO free competition
CITY TO DO AS IT PLEASES.
1.-THE supposed benefits which would ac-
; | crue to the city from surrender Of eN-
? listing rights, in our judgment, are not so
great that they ought TO nor does the
| statute place any compulsion whatever upon
the city TO grant a franchise 10 a company
which proposes surrender. The statute
makes ample provision for condemnation
and appropriation in case of nonsurrender
= of all rights possessed by the occupying
| company except those ends OF lines which
were acquired by grant from County Com
missioneTs; and provision Is made at the
option of the owner for including them IN
the condemnation proceedings. But II the
owner should refuse the benefit OF such OPP
ton il might retain such dead ends OF lines,
but the possession of such property without
the right run into the center or the city
over the newly contracting companys lines.
, and with such dead ends paralleled by the
. operating company. as IL would have a
right to do, would be OF such small conse-
quence as TO be scarcely worthy OF con-
, slider alton.
we therefore conclude that the statute
in controversy is not open 10 the constitu-
tional objection urged against II, ana that
the temporary injunction should De refused,
and il Is ordered"