The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1902-03-13
JUDGE BAKERS OPINION.

CONCLUDED FROM FIRST PAGE0
time to time elect. The right TO determine
for itself from time to time what streets
could be used and occupied for street-rail-
way purposes consistently with the pub
lie safety and welfare is a power incapa-
BILE of absolute alienation by the Common
Council. BY these ordinances the Common
Council has undertaken to surrender this
power and TO remit 1t 10 the uncontrolled
power reserved is the power, If the Common
Council wishes the railways 10 be extend
ed along a particular street, to notify the
complainant of such desire, and II 1t fails
within one year to construct and operate its
road on such street then the use of such
street may be granted to another railway
company. But no right or power Is re-
served 10 prevent the railway company, at
its election from using. with a double or
single track, any and all the streets of the
city however injurious il may be to the
public convenience safety or welfare. The
public convenience, safety and welfare in
this regard are surrendered to the COM
plainant. BY these ordinances. If valid,
TO the complainants election is relegated
the question whether or not a street can,
with due regard TO the comfort and safety
OF the people, be occupied by a single or a
double-track railway. Such a surrender
of corporate power in perpetuity to a
street-railway company cannot and ought
not TO be upheld. 1t canot be supported as
a reasonable exercise of the power of a
trustee over trust estate committed to
it's charge to be administered in the in
terest of the public and not for the pri-
vate advantage and gain of railway or
other corporations.
BILL CANNOT BE GRANTED.
"But If the granting ordinances are not
invalid and unenforceGble so far as the
repeating ordinance affects them, still the
bill cannot be maintained for another rea-
son. 1t was ruled in the opinions OF Judge
Woods and myself, both cOncurring In this
particular in Citizens Street-raiIroad Com
ny Etad
647 that under ordinances similar 10 those
granted to the complainant. the Citizens
Street-railroad Company acquired no vested
right TO commence the construction of q
particular line of street railway on an un-
occupied street without first obtaining the
consent of the Common Council TO the loca-
ton. survey and construction of such pro-
I'm 1889 the Common Council and Board
of Aldermen of the city OF Indianapolis
adOpted an ordinance prohibiting the rail-
way company from entering upon or con-
structing its railway on any unocCupied
street until il had first obtained the con-
sent of the city street commissioner. In
1898 the city granted 10 the City RAILWAY
Company the right To enter upon and con-
struct q street-rallway system on and
along twenty-nine specified routes. en-
bracing . great proportion of the most i'm
portant streets OF the city and including
many OF the streets on which the Citizens
its railroad and had IL In operation. IL was
claimed by the Citizens Street-railroad
Company that the two later ordinances in
fringed the contract rights secured 10 IL
by the earlier ordinances of 1864 and 1860
1
The consent conferred upon the Logans-
port company by the ordinance of 1882 and
1901 so far as the ordinance of Oct 81. 1901
affects them, Is not so clear and explicit
i'm giving consent and granting authority
10 enter upon the streets of the city OF
Logansport as were the ordinances OF 1856
and 1865 adopted by the Common Council
of the city OF Indianapolis. Judges Wood
| and Baker in the above cited cases held
! that the general consent conferred by the
original ordinances 10 occupy and use al
of the streets of the city for railway pur-
/ poses did not satisfy the statute. nor take
/ away from the Common Council the right
before the railway company should con
struct a street railway upon an unoccupied
street 90 require IL 10 obtain the consent
OF the Common Council To its location, sur
Vey or construction.