The Manitowoc pilot. [volume] (Manitowoc, Wis.) 1859-1932, 1909-06-03
VOLUME L.
JUDGE KIRWAN HANDS
DOWN DECISION.


suit of the City against the Railway
Company restraining it from charging q
fare of more than ten cents for travel
between Manitowoc and Two Rivers.
The decision contains forty pages and is
an exhaustive discussion Of the statutes
and the decisions bearing upon the ones
tions in the case. The Court holds that
the ordinance fixing the rate for inter
urban travel of ten cents is legal and
that rate is still in force and therefore
the Court refuses to dissolve the injunc-
tional order. However, the supreme
court of this state has not yet passed
precisely on the question at issue In this
case and therefore the rights of the par.
ties will not be definitely and finally
settled until passed upon by the supreme
court The Judge directs that the City
execute an additional bond in the sum
of one thousand dollars to protect the
street car company against damage in
case the injunctional order is finally dis
solved.
The Judge finds and rules:
l. That the City at the time of the
passage of the ordinance had lawful
power to impose the condition that the
fare each way over the interurban rail.
way between Manitowoc and Two Riv.
ers should be ten cents. The Court says,
Upon the authority of the decisions
made by our Supreme Court relating to
the power conferred on cities by sec.
1862, and my own understanding of that
statute, and the decisions in the Massa-
chusetts, Michigan and New York cases
hereinbefore cited the ruling of this
court, for the purposes of this pending
motion, will be that the city had law.
full authority to insert in the ordinance
the provision which is found therein on
the subject of fare between Manitowoc
and Two Rivers"
2. That even if the City had no pow
er to insert that provision in the ordin-
ance, the defendant is estopped to claim
that the ordinance provision relating to
the interurban fares is void.
3. That the circuit court has jurisdic
ton to prevent u breach Of its obliga-
ton by the Interurban Railway Com
pany. The Court says my conclusion
is that on this motion tba ruling must
be that while the ordinance remains in
full force and effect the contract therein
and thereby existing, and which has
been accepted in writing by defendant
as required by the ordinance, is con.
tract whose obligations in relation to
rates of fare this court has authority and
jurisdiction to enforce against defend
ant by enjoining it from increasing such
rates until it shall have first lawfully
obtained relief from such obligations.
The Court says: IF, under existing stat
utes, the Commission has the power to
change the rates fixed by the ordinance
in question here, the Commission has
not yet done 80. The defendant, unless
it surrenders it's franchise from the city
cannot by its own sole act relieve itself
from the obligations of its contract with
the city and continue to enjoy the ad
vantages which that contract confers.
The burden must go with the benefit,
until in some legal way defendant OBJ
tains leave to increase its rates. No
lawful right to do so can be derived by
defendant merely from its own an
nouncement to the public that the rates
have been increased. And until such
leave or right has been acquired by de.
fendant, l think it must be the law
that the court has authority to entertain
an action brought to enforce the per-
formance by defendant of its obligations
under the contract contained in the ord
nance"
4. That the City, as municipality,
may maintain an action to prevent the
Railway Company from charging ex.
cessive fares, although the City is not
irreparsbly or pecuniarily damaged, and
that the City has authority to maintain
an action.
s. The Court says; "On appeal, the
Supreme Court may hold that the order
of this court on this motion is erroneous,
and that it should have dissolved the
temporary injunction. In such event,
the undertaking given by the city should
afford reasonable security to the defend
ant for the recovery of any damages
which it may suffer by reason of the re-
straint imposed by the injunction. AS
a condition Of the continuance. Of the
temporary injunction, the city must ex
ecute and file, within fifteen days after
this decision shall have been filed with
the clerk, an additional or further 'un.
dertaking in the sum of one thousand
dollars $1,000 with two sureties to be
approved by the court or its presiding
Judge, conditioned as required by law"
The position of the City in the matter
is sustained by the court. However az
a condition for the continuance of the
injunction, an additional bond must be
furnished in the sum of one thousand
dollars and the council will determine
at the next meeting whether or not such
bond shall be given. 1t ia said the
street car company will appeal from
this order entered In the case. II it does
80 the appeal can be heard some time