The Birmingham age-herald., 1911-05-07

ing cash fares of cents within those
 limits. There was a distinct and un-
 equivocal bargain, whereby definite 5-cent
 fare limits were established for the com
 pany, in return for which free trans
 fers were given by the company for the
 benefit of the public At that time, you
 will recall, that no transfers were is-
 sued except on the lines operated by the
 Birmingham Traction company. Within
 the time agreed we began to issue trans fers, as agreed on our part, and have | faithfully kept our part of the bargain 1 then made. We have issued altogether | in and since 1902 up to December 31,
 last, 36, 192, ,96S transfers, which have been | used and which at cents each repre- 1 sent a cash loss to us of 1,S09, ,64S. 40 or an average of about $225,00O per annum for the S-year-period. We are, therefore,
 entitled in good conscience to insist on the enjoyment of the provisions of the con-
 tract which are beneficial to us.
 The 5-cent fare limits fixed by the con- tract with the city extended at that time to East Thomas, on the North Ensley line and to Hamilton station, a short distance from Fairview. on the Bessemer line The South Ensley line was subsequently, built in order to give an express service to Ensley, and we adopted Fairview as the 5-cent limit on that line, that being the point where the South Ensley line leaves the Bessemer line and proceeds to Ensley
 Within these 5-cent fare limits we are l entitled. as a matter of right, by the ex- press terms of an inviolable contract. to cash fare of cents or transfer from | each passenger, and we are unquestion- | ably entitled to a reasonable fare for the | carriage of passengers beyond those D. | cent fare limits, which we have fixed at | 5 cents, in accordance with the univer- | sal custom.
 | If the resolution pending before you
 should be adopted, then the city would 1 thereby violate it's obligations under the contract, notwithstanding that we have | fully performed our obligations.
 | It will be interesting to note how a con- | tract of this character is regarded by the | supreme court of the United States. We quote from the opinion in the leading l case of Detroit vs. Detroit Citizens Street Railway company, 1S4 United States, 3eS: "The rate of fare is among the most
 material and important of the terms and conditions which might be imposed by | the city in exchange for its consent to the laying of railroad tracks and the running of cars thereon through it's | streets. It would be subject for grave consideration and conference between the parties. and when determined by mutual | agreement the rate would naturally be | adopted by a like agreement. Can it be | possible that under this language permit | ting consent upon such terms and condi- | tions as the city might from time to time | prescribe, the power was reserved to | make a rate of fare which might ruin | the whole enterprise? That rate once | deliberately and mutually agreed upon
 might be thereafter and from time to | time altered at the pleasure of the city
 alone? Will it be believed the parties thus understood the meaning of that pro- vision? It would hardly be credible that | capitalists about to invest money in what | was then a somewhat uncertain venture. while procuring the consent of the city | to lay its rails and operate its road 1 through the streets In language which | as to the rate of fare amounted to a contract and gave the company a right
 to charge a rate then deemed essential | for the financial success of the enter | prise, would at the same time consent that such rate then agreed upon should be | subject to change from time to time by | the sole decision of the common coun- | cil"
 "The fixing of rates is, as we have already said. among the most vital DOT tions of the agreement between the parties contained in the ordinances. 1t cannot be supposed for one moment, with regard to a right so fundamental
 in it's nature, that there was any in tention to permit the common council in its discretion to thereafter make an alteration which might be fatal to the pecuniary success of the company" If we should acquiesce in the viola tion of our contract by the city by submitting to the pending resolution. we would thereby make it possible for the courts to hold that we had waived | the benefits of the 5-cent fare limits | in their entirety, and be subject there after to have our rates of fare regu- | lated by the legislature of the state or such subordinate body as may be | clothed with the authority.
 | We are asked, nevertheless, to waive l that provision of the contract which | formed the major, if not the sole, in- | ducement to the company for the con- | solidation of the various properties
 and the major, if not the sole, induce ment to the company for the expendf-