The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1901-09-12
BRIEF HISTORY OF BOTH CASES
HE ARRAIGNs RAILROAD COMPANIES
FOR THEIR ATTITUDE.
What He Has to Say of the Indianapo-
lis Gas Compapy-Brief i'm the
Harmon Murder Case.

of the Supreme Court yesterday afternoon.
Two of the cases are appeals from the
Marion Superior Court and are OF unusual
interest to the people of indianapolis. one
is the case brought by the State OF In
diana, on the relation of the city OF In
dianapols, against the Indianapolis Gas
Company to compel that company to take
steps necessary to furnish the people OF TINS
city with adequate supply of natural
gas for fuel by sinking additional wells
and laying an additional pipe line from
such wells to the city.
The other local case is the action instl-
tuted by the State of Indiana on the rela-
ton OF the city OF Indianapolis against
the Indianapolis Union Railway Company
to compel the latter corporation 10 elevate
it's railroad tracks at certain public cross
ings so as not to interfere with travel on
such streets and imperil the safety of the
travelling public at such crossings. The
briefs in these two cases were prepared by
City Attorney John w. Kern and represent
the citys side of the contentious. With Mr..
Kern on the brief is Joseph f. Bell. his
assistant
TRACK ELEVATION CASE.
In his brief in the track elevation case,
Company is popularity known. Mr.. Kern
sets forth the provisions of the city charter
which he contends are ample TO permit the
Council of Indianapolis TO order elevation
of railroad tracks within the city limits.
First the general power is conferred Ito
secure the safety Of citizens and others in
the running of trains through the city and
then the charter becomes specific and au-
n h-.ia no oi M
thorties to require every rod of railroad
track in the city to be fenced. to require a
hagman at every crossing or to require the
companies TO build viaduct over, or con-
struct a tunnel under, every street or alley
crossed by their respective tracks"
Mr.. Kern declares that under this grant
of power by the charter the City Council
could have put the railroad company to the
trouble and enormous expense of con-
structing a hundred viaducts and hun
dred tunnels at streets and alley crossings,
but cit was not desired to take a step
which would occasion such Inconvenience
and expense to the railroad companies in
terested, and so the ordinance in question
was enacted which = provides that in
a certain district the tracks in question
shall be removed by the 1st of September,
1901, and that permission shall be and is
given to the railroad companies to con-
struct on their present rights of way
elevated roads on certain conditions
named"
Mr.. Kern insists that even if the City
Council of Indianapolis had not enacted
the track elevation ordinance the railroads
could still have been compelled 10 elevate
their tracks at dangerous crossings by
a suit based upon the statute which au-
thOrizes their incorporation. This statute
requires railroad companies, among other
things, Ito construct its road upon or
across any stream OF water, watercourse,
road. highway or canal not to in
terfere with the free use of the same,
which the route of ii shall intersect, in
such manner as to afford security for life
and property, but shall restore the stream,
or watercourse, road or highway thus in
tersected to its former state etc
The track elevation brief concludes with
the following significant observations by
1t is enough that railroad companies
ignore properly rights 1t is too much
when for the sake of their own conven-
lence they disregard public safety and in
the violation OF duty needlessly sacrifice
human life If it be decided that the facts
stated do not constitute cause OF action,
then the doctrine is established that the
rights of the people in their highways are
secondary TO those of the railroad COM
panies which have been granted permission
TO lay their tracks across them We are
loath to believe that the court is prepared
TO so decide.
GAS CASE BRIEF.
In the gas case brief Mr.. Kern discusses
and cites numerous authorities in support
Of the following four propositions:
- quasi public corporation, such as a
natural gas company. owes to the public
the duty to render adequate service to all
persons entitled thereto, and the perform
ance OF such duty will be enforced by man
damuS.
such corporations cannot retain their
franchises and refuse to perform the duties
owed by them to the public"
The passage OF. an ordinance by a duly
authorized municipal body granting fran
chise to quasi public corporate for the
use of streets on certain stipulated condi-
TONS and the written acceptance of the
terms ana conditions of such ordinance by
the duly authorized officers of such cor
poratlOn constitute a contract binding alike
upon such city and quasi public corpora
ton, and neither body to such contract will
be permitted TO shirk or evade its provi-
Sions"
"A city, by it's proper officers, may sue
out writ of mandate TO compel the per-
Iormance or such duties by quasi public
corporation, even though the contract eX-
lists between such city and corporation re-
quiring the performance of such duties"
Mr.. Kern declares boldly that the gas
company is fully able 10 furnish an ade-
quate supply of natural gas 10 consumers
IN this city If it would lay additional pipes
company in effect, say, according TO the
brief:
we concede the duty and the contract
ing distressed by our failure to perform
the obligations of our company; that sick
ness and death have been and will be oc-
casloned thereby: we also admit that we
nave the gas, which might be supplied by
laying an additional pipe line, but we pro-
pose 10 contest the power of the courts to
compel us 10 take a single step in the di-
rection of discharsing our obligations, con-
Jractural or otherwise
Mr.. Kern says that if the gas company
cannot be compelled 10 furnish gas. neither
COR man he 1a1 70,
furnish water If IL refuses 10 do so. nor
can the lighting company be compelled 10
furnish light
The brief deals rather summariIy with
the gas companys contention in the ST.
perlor Court that the private consumer who
feels himself aggfieved is the proper party
20 ask writ of mandate TO compel the
company TO furnish more gas. 1t is said
that the average consumer pays TO the
gas company each year only about $25. and
for this small sum he cannot well afford to
through all the courts. The brief insists
that the city. being party TO the contract
or franchise of the gas company. is clothed
with ample p0we~ 20 bring a suit TO COM
pei its obligations under such contract.
HARMON MURDER CASE.
The third brief referred to was filed by
Attorneys George A. and a. w. knight. OF
Brazil, in behalf OF their client. Samuel
Harmon. who was sentenced 10 the state
prison for life June q. 1901. by the Clay Cir
cult Court. Harmon was convicted of the
murder Of Charles Reynolds. a boy about
nineteen years OF age, on the night of
oct q. 1900 According TO the brief, Har-
mon is an old. feeble ex-soldier. who has