The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1902-03-13
Case of the LOgansport Street-Rail-
way Company Against the
City of LoganspOrt.
BEARS ON LOCAL SITUATION
OF MANY ATTORNEY 5
THROUGHOUT STATE ATTRACTED.
There Can Be No Perpetual Rights to
Streets, Especially Without
Occupancy.

Judge John II. Baker, of the United
States Circuit Courts has written his opin-
ion in the case of the Logansport Rail-
way Company against the city of Logans-
port and others. which was decided a few
days ago, at which time mere mention
was made of the decision. Since the writ
ten opinion has been read by attorneys
they say ii is the most far-reaching opin-
ion ever handed down in a street-railway
case in the United States. and is of spe-
cial interest to Indianapolis just at the
present time because of the efforts of the
interurban companies to obtain a terminal
in this city Attorney General Taylor be-
lieVes the decision of Judge Baker will
be recognized by judicial officials through
out t.the country to be more concise and
at tfe same time cover more latitude, than
any decision that has ever been rendered in
a similar case.
The city of Logansport in 1882 granted a
franchise to the Logansport Railway Com
pany covering all streets in perpetuty the
company to use such streets as it saw fit
In October, 1901, the Logansport City Coun-
Gil passed an ordinance repeating the orig
inal franchise ordinance except as to
streets in which the company had already
laid tracks and was operating cars Then
the street-railway company brought ac-
ton in the Federal Court to enjoin the
city of Logansport and officers from en-
forcing the repeating ordinance. Judge
Baker sustained the demurrer TO the COM
plant, holding that the latter ordinance
was valid and the city had the right to
repeal the franchise except on streets
where lines were already constructed
FEE OF THE STREETS.
In writing his opinion Judge Baker said
in part
"The fee of the streets in cities in this
State resides in the abutting lot owners
and the city possesses only an easement
of way in the streets. 1t does not hold title
to the easement as private property right
which IL may ALLEVIATE at pleasure as il
might ALLEVIATE property belonging to the
city by title unimpressed with a trust
The city holds the easement in the streets
in trust not simply for the city alone but
for the benefit and use of all the people
of the State In Interpreting the statutes
the court ought never to lose sight Of the
fact that in dealing with the use of the
streets the common council of a city is act
ing as a trustee for the benefit and adYan-
tage of the public.
1T is manifest that the Legislature has
not conferred in explicit and express words
on the city of Logansport the power to
grant TO street-railway company either
an exclusive or perpetual use of its streets
for railway purposes. The act of 1861 sim
ply provides that the street-railway com
pany shall first obtain the consent OF such
common council TO the location. survey and
construction Of its railroad before the con-
struction of the same shall be commenced
No words Of perpetuity are expressly en-
pIoyed. The same is true of the act of 1891
There being no express words of perpetuity
i'm the legislative grant, is such power
necessarily to be implied from the lam
guage employed?
TT must be held here that similar and
no broader language employed in the acts
of 1861 and 1891 above mentioned does not
explicitly and directly confer the power
on the Common Council of the city of I.o-
gansport to grant either an exclusive or a
perpetual privilege to occupy its streets for
railway purposes. In a similar case in De-
troit the court says: There are many rea-
sons which urged to this-reasons which
flow from the nature of municipal trust
even from the nature of the legislative
trust and those which, without the clearest
intention explicitly declared. insistently for.
bid that the future should be committed
and bound BY the conditions Of the present
time and functions delegated for public
purposes be paralyzed In their exercise by
the existence OF exclusive privileges And
how much stronger are the reasons which
insistently forbid that the future should be
committed and bound in perpetuity by the
conditions of the present time, and that
functions delegated for public purposes
should be forever paralyzed in their exer-
else? That such powers must be given IN