The Richmond palladium and sun-telegram. [volume] (Richmond, Ind.) 1907-1939, 1911-07-08

That the demand of the board of
Wayne county commissioners was "un.
reasonable" in ordering the Terre
Haute Indianapolis and Eastern Trac-
off the portion of the National road
from the city corporate limit to the
Wayne Center township line, which is
to be improved and converted into a
boulevard, is the opinion OF. Judge H.
c. Fox of the Wayne circuit court in
his ruling on the demurrer. filed by
the defendant corporation to the action
for mandate. instituted in the court
by the state of Indiana on relation OF
the board of commissioners of the
, county of Wayne.
The demurrer Is sustained and thus
ends the first step in most import
ant fight between the board OF COM
missioners. representing the people of
Wayne township and the traction COM
pany. The complaint is declared faulty
and in case the commissioners deter
mine to carry on the night, the com.
plant must be amended and the fight
practlcally Degun again.
Decision in Brief
In brief the decision of the court.
rendered this morning. is that suffici.
ent police power is not vested in the
| county commissioners to force the
! company on of the improvement. since
lit has a broad and most liberal fran
lAhise. which xayes 1t the Eight to use
Ithe kighWay sos 1nxf its nearcSt f1i.
shall not be more than twelve feet
from the center Of the highway How
ever. he does hold that the commits
sioners and the county surveyor have
he authority to designate where the
company's tracks shall be located on
the improvement. ..-..
The future action of the commits.
sioners remains to be determined at a
conference to be held by the commits
sioners and their attorneys, T. J. Stu.
! dy, j. F. Robbins and H. U. Johnson
a week from today. However the pub.
lie may rest assured the fight is not
ended. Chairman Beeson Of the com
missioners' board. said. "Of course, we
are not going to give up" Attorney
Study said, "the fight will be carried
through"
- A Prominent Clause.
! "An act which the law specifically
enjoins," which is a clause in the sec
ond section of the state statute on
mandate figures largely in the deci
/ sion. This section is as follows: "The
action of mandate may be prosecuted
against any inferior tribunal, corpora
! ton, public or corporate officer, OF
person to compel the performance OF
any act which the law specifically en-
joins or any duty resulting from any
Office, trust or station" In outlining
his decision the Court says 90"
there must be some act which the Law
specifically enjoins, that the defend
ant has refused to do and which the
court can enforce by mandate The
court found that such did not figure II
this case
| The Court is especially clear tina,
lax business methods on the part oil
the commissioners is partially respon
sible for the present difficulty. In tbs
l utSC pace uS ItdL IHc DOdIu O
commissioners which granted the fran
cihse to Perry J. Freeman and Johr
/ NJ Lontz. who secured il for a specu
lative purpose. made grave mistake
in not refusing the franchise to then
and instead granting it to some parties
| who would be responsible for the con
struction. Furthermore. though he ex
cuses the present board from all res
possibility in the afore mentioned cri
ticism, he declares that no effort wal
made to correct the abuses of the con
tract between the county and the com
pany until time for bringing the suit
On Public Utility.
In regard to the public utility of re
moving the tracks from the road thu
court says that the reason cited ii
the complaint is a conclusion withou
a premise and one which is arbitraril,
reached by the complaints
In regard to the alleged violation o.
the franchise the court says that ii
respect to the location of the track ant
the condition of the grade, these fact,
for eleven years were open and noto
rious and apparently the commission
lers acquiesced In the situation withou
objection until time for bringing th1
suit. He holds the commissioners hav,
been equally guilty in respect to con
tract violations
Further on In referring TO the reso
lutiOn Of the commissioners that i
was necessary. expedient and propel
f<ss fhx. r,sshMxs vrA1fn - - fntv ard oov,
venience" TO improve the highway TO
two and hall miles with the track
Iat least twenty three feet fro NTH,
4 center Of the highway. and 80 orderet
itAe defendant to do without its con