The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1902-05-01

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any fare in excess of the provisions OF the
act, also indicates that IL was not intended
10 limit the city under Section 3 70 an au-
thOrity that was circumscribed EXCEPT by
the act of which said section is part We
think that Section is TO be considered in
connection with Sections and OF the act
Any number of corporations might have
been organized under the general law for
the Incorporation of street-railroad COM
panles after the act OF 1899 was passed, ana
While the federal census OF 1880 was the last
census, and thereby been in a position un-
der Sections l and of the statute 10 bid
for a franchise that would have enabled
the company obtaining ii To occupy other
STREETS or to parallel the lines of the occupy
ing company. where the width of the street
permitted. II was not necessary that the
company competing for the franchise with
the occupying company should be In pos
session of an unexpired franchise, but If II
had such a franchise ii was required to
surrender it, part of the consideration
OF the new contract. The occupying COM
pany had no advantage whatever over
company organized 10 compete with 1t. eX-
cept that II had possession Tor limited
time Of the space in the streets that its
tracks occupied, and IL that circumstance
gave IL such advantage over other corpora
tons that might bid for the franchise, that
it was enabled to make bid that the city
saw fit To accept as against other bids. that
was an advantage that would naturally be-
long to it.
Does such a statute amount to a grant
by the General Assembly of a privilege or
immunity in violation of Section % OF Ar
any matter of technical construction with
reference to this provision, we hold that II
does not. The city was merely empowered,
In its discretion to extend appellee'S fran
chise or il might. at a particular period
before the expiration of the time that such
franchise would expire, let contract or
franchise upon public competition, or II
might during any of said time have eXer-
c1sed the authority that the General AS
semby expressly reserved to IL TO grant
franchise if il could take effect I'm praesenti
Sec
ton 9. There is nothing in the claim that
no other company but appellee could make
contract by which it could charge in ex-
cess OF cents as fare; the act was intended
as a readjustment of the whole street-car
situation in Indianapolis at least as ap-
piled TO any company entering into con-
tract with the city by virtue of said act. y
| careful study of the act has convinced US
that Its sole effect, in so far as il relates
tn the relations of the city to street-railway
companies. was to make II possible, under
specified limitations TO make a contract
for street-railrOad franchise that was not
hampered by the provisions of the so-called
scent fare law of 1897. In this view it is
quite plain that the act was not a grant to
the appellee, but was merely a restoration
to the city of its former power TO enter into
contracts for the grant of street-railroad
franchises.
DOES NOT CREATE MONOPOLY.
Because law merely authorizes a munic-
! ipality TO make a particular contract leav-
ing it authority. under other sections of the
law, TO make other contracts, does not
create a monopoly, even if there is a con-
/ tract let without advertising or competition.
If it was the desire of said city, as such
desire found expression through its au-
! thoriZed representatives, to eXtinguish the
remaining portion of appelees rights I'M
/ der its former franchise, by entering into
/ a new contract with il that would super
/ sede the one that before existed. there
L 10 IN 81 n In n .
competition for that purpose, because no
/ one but appellee could offer that which the
l city desired to acquire 1t would doubtless
/ nave been a wiser law, and more In keeping
with the modern view that efforts should be
/ made to obtain the best price for the right
/ 10 use the public streets, II the act had pro-
Nided that before contracting the city
should be required to invite competition,
! but even without that limitation the city
/ had full authority TO do so, and II II is now
/ perceived that it made an unwise contract
/ with appellee-a matter concerning which
we are, of course, not 1udiClally advised
! the blame properly rests upon the repre-
/ sentatives of the city who made the con-
| tract
Even if we were to grant that Section 9
/ of the act has been construed by too
/ broadly. still appellant must fail i'm this
particular ground of attack, for beyond
question the city authorized To refuse
/ to negotiate with appellee alone and could
wait until the period fixed in Section s,
/ nine months before the expiration Of ap-
i pellee's franchise, and then let a contract
/ upon public competition. As a mere bust
| ness proposition, the city, If 1t could not
/ obtain satisfactory terms from appellee at
/ the outset could have much better AFFORDED
1 TO bide its time than appellee, for ultimate
| ly the latter would have been compelled
! TO sue for terms.
The act represents the legislative judg-
ment that aDpellee's then existing fran
chise should be merged into a new fran
! chise, If 1t could be acquired on sufficient
| ly advantageous terms. The General AS
! sembly, therefore, merely gave the city
! permission to treat with appellee, for some
| thing that no one but appellee possessed,
on any terms upon which the contracting
! parties might agree, provided that they
| were not more burdensOme than those fixed
as maximum of terms by the act. AS we
| have stated the act IS not a grant to a
private corporation, but it is mere dele
cation of business powers to a govern
| mental corporation. IF the act ex propriC
chise. or If 1t had directed the city to do
| so, a different question would have been
| presented out the attack OF appellant IN
| so far as II is based on the claim that the
| act is a grant of privilege immunity.
| must fail, since it must be admitted that
the act is only permissive. The powers
| conferred might be abused by the agent,
| but in honest and capable hands there was
no reason, so far as the provisions of the
act were concerned why there should have
been such abuse. if any there was
| 1t is next claimed that the act in question
violates the following section of the State
Constitution: Corporations other than
| act, but may be formed under general
| laws" Section Is, Article H.
| ORGANIZED UNDER GENERAL ACT.
If the appellee is a corporation organized
under the laws of Indiana, the COM
plant alleges, it must be presumed that
it was organized under the general act for
the Incorporation of street railroads that
became a law Sept. I. 1861 (Sec. 4143, ct seq
r. S. 1SS1) Section of that act provides
that the organization shall be a body
polite and corporate in perpetuity." Tn
der that act appellee's- corporate continuity
| is only dependent upon Section IL of the act
mentioned. that provides that the 'act may
of the Legislature. street-railroad cor
poTatiOn is none the less a corporation be-
cause ii does not possess a franchise. 1t is
its right 10 be a corporation that gives ii
| the capacity to acquire a franchise. In
this case the General Assembly as such
did not grant appellee anything. Whatever
was granted was powers TO the city. I'm
der the act of 1899 il was within the au-
thority of the city 10 have granted this
corporation or any other street-railroad
corporation a new franchise. The grant
applied to the city not only i'm it's rela
ton to appellee, but in it's relations to al
/ such corporations as might contract with
il. The act amounted to no more than a
regulating of the right and a granting of a
more ample and definite power. Our cases
OF City of Indiana polls Navin Isl Ind
139 and Bank OF Commerce VS.. Wiltsie, IS
Ind, 400 conciusively settle the question
Under consideration against appellant. IN
the Navin case ii was said: when the
| present Constitution of 1851 went into effect