The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1899-03-22
THE SMITH SIDE OF 1T
ARGUMENT IN STREET-CAR INJUNC-
TION CASE CONCLUDED.
Points as Made by Frank ID. Burke
and Henry Warrum
Yesterday.

by John T. White and Charles f. Smith TO
prevent the city from making a contract
with the Indianapolis Street-railway Com
pany
Mr.. Burke, in his argument, declared that
the law of 1899. by which the Indianapolis
Street-railway Company hopes to operate,
is assailed on the theory that 1t gives to
two artificial persons of the State of In
diana the right to make a contract. The at
torney said he did not care whether the
right existed few months or a few days.
1t is a violation of the limitation placed
on the legislative power Of the State by
the sovereign power of the State which ex
listed before the Legislature. 1t found ex-
preston. the attorney declared, in the Con-
stitution that created the Legislature. Con-
tinuing, he said:
"He who runs along the roadways may
read what have been for the past ten years
the constant and ceaseless efforts made by
a lot OF vampires to fasten themselves upon
and to suck sustenance and support from
a corporation that had rights and privileges
In the streets of indianapolis. Midnight or
dlnances and gum-shoe methods are not re-
sorted to 10 protect the rights of the people.
Il cannot but apprehend that the learned
city attorney should be standing In the
place that occupy in this litigation. The
chief executive of the city and the Board
OF Public Works crack no slave whip over
the backs OF those who own property and
have rights of citizenship within this cor
poration. He Is, and those associated with
him are servants of the sovereigns whom /
speak for in these proceedings, and to the
sovereign Is not to be denied the right to
apply to that department of the government
that he has created for redress and relief
where his servant fails in the discharge of
Mr. Burke asserted that the sovereign
power declared in the Constitution that this
legislative power should have complete SOW
N 01 rlrhA trc
creator limited 1t by placing limitation
In the Constitution. One of these limita-
tons was that 1t should grant no privileges
or immunities to one citizen or class of citi-
zens that should not be- under like crcum-
stances, enjoyed by all other citizens. The
attorney asserted that municipality in In
diana has only such power as the legisla-
tive authority gives 1t. 1t cannot contract
unless there is a legislative grant and it can
only. do so then within the terms fixed by
1.-The city of indianapolis" said the at
torney, lis the creature of the legislative
power of the State. So also is the Citizens
Street-railroad Company creature of the
State, and the City Company creature of
the State-three children of the legislative
power Of the State.
WHO THE STREET BELC NGS TO.
81 state now without fear of bona-fide
contradiction that this absurd and hypo-
critical claim that the streets of Indianap-
oils belong to the city or citizens of Indian
apolis Is untenable. They belong to the
travelling public. dedicated by the original
owners. The Legislature has not authorized
the city to make them a source of revenue.
I'm the absence of any legislative restric-
ton, street-railroad company being an
artificial person of the State, would have
the same right to go upon the streets of a
city as private citizen, either a-foOt or
in his carriage. The Legislature
has placed limitation upon the right of
railroad "A
street by saying that before 1t can do SO
II should obtain the consent of the City
Council.
May any one organize a street-rairoad
company? Yes. But who holds the key to
the situation? 1t may be said that the COM
pany of A, b or c has the same rights and
privileges under the law that the Indianapo-
lis Street-railway Company has. But If
they are to enjoy any privileges they must,
following this law. acquire the rights of the
two artificial persons who hold the key TO
the situation.
1.-The only claim of the City Company Is
based on an ordinance passed at / or 2
O'Clock in the morning when honest and
| virtuous men are at home; at time when
dark lanterns and burglars are abroad in
| ing the people from the depredations of such
pirates that limitations are placed upon leg
iSlative power by the Constitution
What was the city administration, the
| city attorney doing when this law of 1899
| passed the Legislature taking from the mu-
| nicipality the whip hand and placing the
| whip in the hands of these two corpora
| lions. Why are they not assailing this law
now? If no one can make a contract with
| its successors and assigns, is that a monop-
| oily? Is that granting TO these two COM
| panies rights and privileges ii denies to
| others? If 1t is. then the judgment of this
| court should be in favor of the people TO the
end that in 1901 they may be the masters of
| the situation, and not to the harnessed
| horses of a corporation operating within its
| limits All this question of per-
| petuity can be wiped out by one act of the
LEG isl n
Il challenge the large array of counsel
| that appear upon behalf OF respondents in
| this case to point TO this court a single line
| of legislative enactment in the interest of
| those who must patroniZe and use street.
railroads. except the Scent law; Point to
| pie from this burden of taxation except the
| 3-cent-fare law.
| ADMINISTRATION A CATS-PAw
| Had this Citizens Street-railroad Com
pany been left alone to solve the problem
! of its existence, with q city administration
| that was not the mere cats-paw of a selfish
and avaricious interest behind it-had the
Citizens Company not been harassed by adj
| verse legislation-not in the interest of the
| people. but in the interest of the few-it
| better than any other company that can be
| brought into existence, and 1t could make a
fair, just, equitable and reasonable contract
| for the use of our streets.
The court is called upon as the chan
| cellor TO modify and ameliorate the harsh
conditions of law, always keeping in mind
] the relationship of the parties to the suit
| and TO each other. The disappearing of
| my clients prompts me TO say that they
| have no corporation up their sleeve. They
| have no terms to make with any of the par
| ties 10 this contract. They simply state
| that their public servants do not take the
| same view of the situation that they do.
1 They appeal 10 you 10 construe the law, TO
| give force. and effect to the organic law of
| the State"
MIR. WARRUMS ARGUMENT.
| Mr.. Warrum, in the course OF his argu-
| ment, said: There are two fundamental
| propositions in this case-first, as TO the
| rights of these plaintiffs. taxpayers of this
| city, to seek an Injunction against the ille-
gal and unauthorized acts of its officers
and second. as to the validity of the act OF
March g. under which the street railway
| contract is to be made. Much has been said
| about a taxpayer having no legal remedy
| taking an Illegal contract or the unlawful
| disposal OF corporate property, but the tax
| payer in such a case bears the same rela-
| ton 10 the municipal corporation that a
| stakeholder does 10 a private corporation
| and in this State IL is uniformly held that
| ipal officers. In support OF this contention
| Mr.. Warrum read from numerous cases
| 1t may be said the taxpayer has no inter
| ests involved, but the right 10 grant a street
| railway franchise Is species of property, 8
| source of revenue, and he has as much
right TO complain of the unauthorized grant
of II as he would of the parks or city hall
No question OF discretion is involved anC
the court was not asked TO control the ex
ercise of an official discretion on the par