The Richmond palladium and sun-telegram. [volume] (Richmond, Ind.) 1907-1939, 1915-05-22

ty condemning can take the property
sought, and that even after confirma-
ton or judgment the purpose OF TAX
ing the property may be abandoned
without mourning any liability to pay
the damages"
The authority in support OF this
proposition, cities more than fifty au-
thorities
Some stress, understand. has been
laid upon that portion of the public
service commission law declaring the
effect of surrendering a grant or fran
chise by public utility and receiv-
ing in lieu thereof an indeterminate
permit, and | therefore deem it proper
to discuss briefly this question.
A public utility operating under an
indeterminate permit is deemed to
have consented to a future purchase
of its property by the municipality
etc; and it shall thereby be deemed
to have waived the right of requiring
the necessity of such taking to be es-
tablished by the verdict of jury:
and to have waived all other RENE
dies and rights relative to condemna-
ton, except such rights and remedies
as are provided in this act This
utility, then, by it's acts has placed
itself under the provisions of this law.
But nowhere in this law is there
any statement or provision that the
city shall by any act or failure to act.
thereby become a purchaser, and 1t
would be a very extraordinary PROPOSE
ton to hold that city is bound by
contract which it has not made and
without the price, terms and condi-
tions being first determined. To con-
clude that under the circumstances the
city is now irrevocably bound in this
matter, is contrary to the most ele-
mentary principles applicable to con-
tracts. A city can only contract in
the manner provided by statute, and it
would be an exceedingly bold asser
ton to say that city can make, even
if it should so endeavvor. a valid and
binding contract without the price.
terms and conditions being known and
without any appropriation having been
made therefor, and in the absence of
available funds to meet such contract.
/ These propositions, it seems to me.
are so we'll settled as not to need the
citation of any authorities.
Under the statute, when city seeks
to acquire a public utility operating
under an indeterminate permit by
condemnation, it files a petition be-
fore the public service commission,
and thereupon the commission sets a
time and place for a public hearing
upon the matters of the just compen-
sation to be paid for the taking of
the property of such public utility,
and of all other terms and
conditions of the purchase and sale,
and gives notice as the law provides
A hearing is had and the commission
by order fixes and determines Just
] compensation to be paid for the taking
of the property of such utility and all
other terms and conditions of sale
and purchase which it shall ascertain
to be reasonable, allowing not exceed
ing one hundred and twenty days for
the payment Of such compensation.
| This utility by its acts under the law
has agreed in advance that the city
may purchase at the value and under
the terms and conditions thus fixed.
but the law does not say, either di-
rectly or by implication, that the city
has agreed to purchase. The title.
ownership and possession of the prop
erty of the utility still remains vested
in it. There is no principle of the
law Of contracts with which / am
even permits city to make blind
contract, and the law has not placed
it in a position whereby it has. in
consideration of receiving some spe-
| cial benefit. consented or agreed in
advance so to do: while on the other
hand the utility in consideration of re-
ceiving such a valuable thing as an
indeterminate permit has. in consider
alton thereof, agreed to sell its prop
erty under the conditions set forth in
the statute. Thus. the parties are
placed. under the law, in different sit
uations and the reasons therefor as
above stated, as we'll as others which
might be given, fully justifies such
distinction The phrase in the law,
ALLOWING not exceeding one hundred
and twenty days for the payment OF
such compensation seems TO be the
main proposition, as | am informed
upon which the opposition bases its
contention. Suppose we analyze this
expression in the light Of the author
titles cited and see what conclusion is
naturally reached. The principle an,
nounced in all these cases is the same
and is clearly and positively stated in
one of them as follows:
3 The public authorities in the alb
sence of any statutory provision to the
contrary have a reasona BILE time given
them after the entertainment of the
expense of the scheme to decided
whether TO accept or refuse the land al
the price fixed"
If, however, the statute fixes such
time. or the commission fixes it within
the latitude which the statute names
then the public authorities" must
accept or refuse" on or before the
date fixed or they are forever debarred
from so doing, so far as this proceed
ing is concerned. This is the only con
struction which can be given this
phrase, and make it harmonic with
the great weight of authority, only
some of which are above given Be
sides, the word ALLOW" means "to
grant" Ito permit" not 10 hinder
! 1t therefore, must mean that the city
is granted permission or allowed a
certain time in which Ito accept OF
refuse" the property at the price fixed
and under the terms and conditions
named.
The latter portions of this section
of the statute under consideration
also, when reasonably construed, sup