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

use OF the streets could be granted upon
| much more advantageous terms and be
made TO realize a much larger sum 70 me
| city treasury as compensation Tor such use
| than can be done under the act IN discus
| sion. IL is cOntended that. TO the extent
| that the city could realize larger sum, II
such competition for a contract could be
| had. than IL could otherwise realize, then,
| TO that extent. the taxpayers would oe re-
| ieVed from some portion or the burden OF
taxation: and that plaintiffs, being taApay-
ers. would not be subjected 10 so great
burden they would be If the competition
were limited TO certain companies, as al
| legged in the complaint.
| CONTENTION AS TO COMPETITION.
| While there is considerable force in this
contention of plaintiffs counsel yet, under
the authorities already cited. it is doubtful
whether plaintiffs position is so different
| from that of the community in general as
to give them a standing TO maintain this
/ action; but, conceding. without deciding.
| that plaintiffs show an interest in the sub
ject matter in controversy peculiar 10 them
selves and sufficiently different from that
! of the community in general 10 give them
such standing. still we are Of opinion that
! the act under consideration is not open 10
/ the objections urged against il by the plain
| tins, as We shall endeavor 10 show here
after IN this opinion.
THE CENSUS RESTRICTION.
The first section of the act in controversy
provides:
That it shall and may be lawful for
| any street-railroad company now or here
| after organized under the laws of the
| State of Indiana for the purpose of oper-
| ating a street railroad in any city, the popu-
lation OF which. by the federal census i'm
mediately preceding the Incorporation of
| such railroad company, exceeded 10000 per-
| sons. and for such city 10 enter into con-
| tract defining the terms upon which such
| railroad shall pNarpiSp
| chise within such city, subject TO all the
| provisions of this act
The court takes judicial knowledge that
no city in the State had population Of
10000, as disclosed by any federal census
prior TO that of 1880. 1t must be conceded
| although il has not been argued, that no
census of 1880 could compete for contract
and grant from the city of Indianapolis. for
| purposes. under the terms of said section.
The effect Of the language, as will be seen.
| is that the federal census Immediately pre-
ceding the incorporation of such company
must show population exceeding 10000.
n ,b fat G tb In Of the
Citizens Street-railroad Company show
that 1t was organized long before any fed
eral census dSclGsed ;n i on, fha ,
fore, 1t is plain that said company IS barred
by the terms Of said sections and bf If IT SSn
out, very different situation from that
under consideration would be presented
| ANY other company however, whose IN
| corporation poSt-dateS the federal census OF
$780, would be free. under said section. to
! enter into a contract with. and obtain a
grant from said city for the use OF its
streets for street-railWay purposes, and II
similarly situated. does not fit to com
plain, We do not see how any one else can
complain for them.
| Section of said act provides that the
contract and ordinances granting the fran
chise shall contain certain limitations and
fCT inr pTflh r afefn E he
limitations as to fares paving regulations.
the terms and conditions on which the
suburban and interurban roads, how and
when the city may become the owner of the
property of such company, and operate the
road on its own account. II IL so desire, etc.
SURRENDER OF OLD FRANCHISES.
And said Section 2 contains a further
provision, as follows: AS a part of any
contract entered into pursuant to the pro-
visions of the act, and a part of the
consideration therefor. the company en-
tering into said contract shall first make
an absolute surrender TO such city Of all
franchises and rights to the use and occu-
pancy of the streets, alleys and public
places Of such city owned. held or claimed
by such company within the corporate
limits of such city at the time of the max
ing of such contract pursuant to the pro-
visions OF this act, or heretofore owned,
held or claimed by such company Stress
is laid on this provision by plaintiffs coun-
sci, their contention being that any COM
pany is foreclosed from making a contract
that does not possess the rights of the
occupying company. We regard this posi-
ton untenable The true construction, We
take it, is that If any company has any
such rights, then as a condition precedent
TO entering into d contract with the city
it must surrender such rights, but il is not
made condition precedent TO entering into
| a contract that such company shall have
such rights. 1t needs but a statement OF
the two propositions TO show the distnc
| ton.
Sections 4. 5 and of said act provide thai
street-railroad company contracting will
such city may acquire by purchase lease OIL
whole or in part, of any other company OPP
Grating a street railroad in such city oil
connecting Herewith in territory adjacent
thereto and that said operating company
may sell, lease or otherwise transfer it:
property, etc, TO such contracting company
Section of said act provides that: Nc
street-railroad company shall hereafter have
the right TO use or occupy for street-railway
! purposes the streets, alleys, highways Of
other public places of any such city. excep
under and in pursuance of an ordinance o.
contract specifically stating the period o
such use or occupancy. Where such use o.
| occupancy is now or shall hereafter be haG
| by any street-railrOad COMPANY under an,
! ordinance or ordinances. contracts or agree
. ments, in which is fixed or limited or at
tempted to be fixed or limited, the period o
time OF such occupancy or in which an ex
tension of time ginally fixed limited
; has been made, and the right and franchise
of such use or occupancy shall not. nine o
more months prior TO the final expiration o
the period of time so limited or extende,
, | have been granted for a further definite
time TO said company, some compan,
which has acquired the property and fran
2 chise of said company. by contract en-
under the provisions of this act, then an
in all such cases, upon the final expiration
of the time originally limited or extended
the right to such use or occupancy by sal
company, its successors, or any other com
pany claiming under such ordinance con
tracts or agreements, shall immediatel
terminate and cease forever.
FREE AND OPEN COMPETITION.
Then, after providing for the removal o
the tracks, etc, in case said company doe
not elect to have them appropriated by it
successor as specified. said section contain
; this proviso: Provided. however, that no
, later than nine months before the expiration
! of the period of time originally limited o.
! extended, in the event that no contract 70
! the further use and occupancy of sucl
streets, alleys and public places has beel
entered into under the provisions of thi
act between such city and said company
its successors or assigns, such city, through
its Board of Public Works, shall open Il
free competition the further occupancy 70
I a period not exceeding thirty years OF tn
, streets, alleys and public places or such city
for the purpose of operating therein an cleo
trio or other street railroad, and such city
Dbl. IL -.