The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1899-04-06
NOEL LAW is SUSTAINED
MESSRS. SMITH AND WHITE DENIED
AN INJUNCTION BY COURT.
City May Now Proceed with Its Street,
Railroad NegOtiatiOns-The
Courts Opinion.


successful in securing temporary restrain
ing order. Yesterday opinion in the case
was read in Room 3 by Judge feathers. In
the opinion the court held that the objec-
tions urged against the street-car law
passed by the last Legislature could not
be sustained The three Superior Court
judges concurred in the opinion. The de-
cision does away with the temporary re-
straining order and declines to grant the in
junction asked for.
The opinion was read during the morning
and in the afternoon the three judges heard
further argument from the attorneys on
each side. This was for the purpose of get
ting the case in the proper shape TO go TO
the Supreme Court The action of the court
in denying the injunction is not final dis
position of the case. The plaintiffs were anx-
ious to take the case up at once and yes
terday afternoon asked the court of its own
motion to enter up a final judgment against
them. Had this been done the plaintiffs
could have then prayed for an appeal. The
court declined to take this action, holding
that it would be error TO enter up a judg-
ment at this time. The court sug-
gested that the plaintiffs enter a motion TO
have the city file an answer to the original
complaint. The plaintiffs did and the at
torneys for the city were instructed to have
their answer ready by tomorrow When the
answer is filed the case may then be set
down for trial on its merits. 1t is under
stood. of course, that final decision will
be along the same line as the one given yes
terday. These proceedings merely
formal. Pending a trial of the case the
city Is free 10 proceed with its negotiations
with the indianapolis Street-railway Com
pany or any other corporation il desires 10
deal with
The decision read yesterday morning first
reviewed the grounds on which the plaintiffs
based their action against the city. AT the
| threshold OF the case the court found IL
| self met with the question to whether
the plaintiffs, by the allegations of their
complaint had shown themselves competent
qualified maintain the action. If so.
the further question arose: rs the act chal-
! lenged as unconstitutional open to that OBJ
| jection?" The opinion then continued:
I'VE are of the opinion, however. that il
| the complaint clearly fails to show that
plaintiffs have a legal standing TO maintain
! the action, then ii is the duty of the court
| to refrain from entering upon the consid-
| Grafton of the conStitutiOnality Of the act
in question. No graver question, for the
consideration of a court, can arise than the
CCnStitutionality of an act of the Ieg1sla-
| ture, involving as Ii does a review OF the
| power of a coordinate branch of the gov
ernment and il is the duty of the court not
/ to enter upon such consideration unless II
! is absolutely essential to the decision of the
case.
PARTIES HARASSING OTHERS.
THE case of Henderson, auditor, VS.. the
State ex rel Stout, sheriff of Vigo county
1871 Ind, 552, was an action the purpose OF
which was to compel the appellant, state
| n no CT 4
treasurer in favor of the relator, as sheriff
| of Vigo county, as compensation for the de-
| livery of convicts at the southern state
prison. In it the constitutionality of the
fee and salary law was attacked one OF
/ the grounds of objection being that said law
| failed TO fix salaries for the auditor, treas
! Urer and recorder of Shelby county. The
| law did fix salaries for the clerk and sheriff
Of every county in the State, including
| Shelby county. The Supreme Court said
| Whether the appellee can be heard to com
| plain that the General Assembly failed t.
| fix a salary for the auditor, treasurer anc
recorder of that county depends upon tht
| preliminary question as TO whether the pro
| visions of the statute are so intcrlocked anC
| sc dependent upon each other that the ac
| must stand or fall as whole, for we viii
| not permit him to litigate a matter in which
| he has no interest. a party cannot be per
! mitted TO haraSS others and take the tim.
! of the courts in litigating matters in which
! he has no interest, and, for this reason, i
| the provisions OF the act under immediat,
| that il can stand 10 appellee while i
| might fail as to the auditors, treasurers anC
recorders, we Will not stop to inquire wheth
! IL is or is not valid as to the latter
THE CONSTITUTIONAL POINT.
"If the act sought to be overthrown in tn,
case at bar is constitutional, then it is clea
that plaintiffs have no right to injunctiv,
relief, for by the act the municipal officer
are invested with the judgment and oIscre
ton of determining what is for the best in
terestes of the city and its citizens, and tn
| terms and conditions, within the limitation
imposed by the law itself, which shall b
| contained in the contract, so that, II tn
| contract, which IL is alleged that the de
| PENDANTS are about to enter into, may no
| be the most advantageous one obtainable il
the Judgment of the plaintiffs, or even In tn
ford no ground nd for relief When the deter e
| animation of such matters is intrusted b,
| law to the Judgment and discretion of mum
cipal officers, or boards. no rule is bette
established than that equity will not revis
| or control the exercise of their discretion
or interfere with their action in the alb
| sence of fraud, and while they continue L
act within the scope of the powers con
ferred upon them. ~
IF. however, the act in discussion is un
| constitutional, IL follows that any contrac
based thereon would be a nullity. and
street railway constructed or operate'
hereunder. in the streets of said city. wOu
be a public nuisance, and in proper pro
ceeding might be abated or enjoined. Sucl
unauthorized occupation would constitute
! nuisance per sc.
'In such case the question arises who ma,
| maintain the action? Booth, in his worl
Just referred to- in speaking of such cases
| says: The general rule is that an injunc
| ton will issue a. the suit of private in
| dividual who sustains a special injury, blu
| where the nuisance is purely public one
| To injury being done or threatened 10 pri
| vate citizens or their property, such act
| can be restrained only by the public on i'm
| formation filed by duly authorized publ
| officer
RIGHT TO MAINTAIN AN ACTION.
1.-The case of MCGOWAN ct al. VS. White
sides, 81 Ind, 235, an action by plain
tffs against Whitesides 10 enjoin him fror
obstructing a highway by building a fenc
across the same. The plaintiffs connecte
themselves with the highway by averrin
that it is their usual, convenient and nee
essary route of travel from their houses
which are all on or in the vicinity of tn
road TO Wabash, their market town an
usual place of business, and that Withou
greater or less circuity when the road is :
INSTRUCTED they and each of them have n
other means nor have the public wiShin
TO use the road, of going TO and fro, as the
have a right TO do. for business, comfor
and pleasure.
Our Supreme Court said The questio
In the case is, can private person enJol
the obstructing of a public highway with
out showing special injury TO himself, no
| common TO the public? The rule laid dow
that for an injury common TO all, arisin
from pubic nuisance, the remedy is by a
| indictment or public prosecution; but II a
individual suffers a peculiar and specia
| have his private action is quoted with az
| prevail In holding that the Plaintiffs coul