Indianapolis Journal, Indianapolis, Marion County, 11 November 1894 — Page 6

6

1EE lyriAKATOIlS- JOURNAL, SUNDAY, NOVEMBER 11, 1891.

CITY C0MPA8Y LOSES

JUDGES WOODS AXD BAKER IUXB IN TIIC STIIEET-CAR CASES. The Former Holds that the LfgUlntnre Alone II n Tower Over the Citizen Company' Charter. JUDGE BAKER DISSENTING DECISION OF THE RAMvISG JUDGE, HOWEVER, WILL PREVAIL. The District Judge Thought the CHIsens' Charter Expires in 10O1 Appeal to the Supreme Coart. The Citizens' street-railroad won a signal victory ' yesterday in the federal Circuit Court. Judge Wooi3 handed down an opinion In which the franchise of the company Is held to be subject to limitation only by the Legislature. Judge Baker, who also sat In the case, dissents from this view, but both agree that in any case the seven years' extension was valid and that the company's franchise holds good until 1301. Tb? decision of Judge Woods prevails, he being the ranking Judge. The opinions are masterpieces of reasoning, and indicate a broad understanding and appreciation of the rights of the municipality and the public as well as of such semi-public corporate property. Judge Woods, while denying the power of the Council to terminate the life of the Citizens company, even for what advantages there may be In the City company's franchise, says that it is not a question of perpetuity of charter, but of amend ment, alteration or repeal by the Legislature, which alone has sovereign power. The Council has only the powers of an agent of the State. Its acts could not bind the State, and therefore the other party to its contract could not be bound by any contractual arrangement. The opinion Is as follows: In respect to the question of Jurisdiction, I am content with the decision heretofore made In this case and reported in 5$ Fed. Itep. 750. The corporate existence and the franchise of a street-railway company organized under the law of 1MJ1. Indiana R. S. 1SS1, Section 4143 et seq., are derived directly from the State, but are subject to the condition that the consent of the Common Council shall be obtained "to the location, survey and construction of any street railroad through or across the public streets of any city before the construction of the same shall be commenced." CONSENT OF COUNCIL." The consent of the Common Council being required, it is in a sense true that the franchise Is granted by the city, .since the ultimate right is acquired or becomes effective dnly upon the giving of that consent. (Andrews vs. National, etc., Company, U. S. Circuit Court of Appeals, Seventh Circuit) The power to construct tracks, switches, sidetracks or turnouts upon the streets, and by implication the right to run cars therein, is conferred by the statute, or, in other words, is derived directly from the State, so that, strictly speaking, the city does not grant the franchise, but simply consents to its exercise. (Detroit Citizens' Street-railway Company vs. Tfl City of Detroit, U. S. Circuit Court of Appeals, Sixth Circuit, decided Oct. 2, 1S3L) The right to give or refuse consent Implies the right to prescribe terms, and the terms need not, as I conceive, have direct relation to the specified subjects of "location, survey and construction." They raay embrace any reasonable requirements, concerning the operation as well as the construction of the road, consistent with the statute. Carefully read, the first and fifteenth sections of the ordinance of Jan. 18, 1SG4, shpw the unqualified or absolute consent of the Common Council given to the Citizens' company "to lay" its trad: upon the strets named, but its consent to the use of cars on the tracks, or to the operation of a railway, was extended only to the term of thirty years. Is that restriction valid aud "binding? I am inclined ta the view that it is not. Subject to the reserved power of the Legislature to amend or repeal the act, perpetual corporate existence was given in explicit terms, and, in the absence of express or implied limitation thereon, the necessary presumption . 13 that the franchise granted wa3 intended to be of like duration subject only to legislative revocation. It 'is not to be supposed that the Legislature Intended that tnere should be corporate existence without a franchise the only reason for such existence. It is not a question of perpetuity or of Irrevocable right. If It were different rules of construction would prevail. No presumption or Inference could be allowed in favor of a perpetual right, and every reasonable intendment against It should be indulged. But danger In that direction lurks rather In the supposed power of the Common Council. If it had authority to agree to a franchise for thirty years it might, with equal conclusiveness, have stipulated for one of sixty or ninety years, or any longer term, imposing upon the city, it might be for generations, the evils of a monopolistic perpetuity. Thirty years are too many for a. burdensome or unjust grant. As was said In Taylor vs. Bay City Company, 80 Mich., 77, It is highly Important that the Legislature should retain the power " to pass enactments for the control of these quasipublic corporations suitable to the changed conditions of affairs. The village or small city cannot well provide regulations and ordinances applicable to a large city. If agreements by common councils, like the one in question, are authorized and binding" they must when made operate to suspend pro tanto the reserved power of the Legislature by repealing the act to terminate the life of companies organized under' it. They are inconsistent with that power. On the contrary, if when made the agreements created no vested rights because made subject to the power or the Legislature to revoke or modify them, then in legal contemplation they are without force, and the power of city councils to make them la a mere pretense. It Is a delegated power to make an agreement which cannot bind or ought not to bind one party, the corporation, because It does not bind the other party, the State. In respect to such powers the city Is the agent of the State, and, besides being anomalous, the proposition that the city and company will be bound by such contracts and the State not bound Is manifestly unjust and unfavorable to the public interests. LEGISLATURE'S TOWER. ; The.statute Is a general one, designed for uniform application to all cities, but by the proposed construction uniformity 13 impossible. An amendatory act could not affect all cities alike, and even In the Fame city one company might be amenable to legislative action from which another company would be exempt. It was well to proVide, as was done In the twelfth section of the act of 18C1, that the exclusive powers of the cities over their streets should remain unimpaired, except as necessarily affected by the presence and operation of the railways authorized to be there. Those powers. It was held In Eichels vs. Evansville. 7S Ind.. C71. did not include the iower to grant the use of streets for street railways, end they can be regarded, since the passage of the act of ISol. as having relation not to the duration or termination of street railway franchise?, but rather to the manner of their excrci?. If it could be said that the city had authority in the exercise of local self-government and by virtue of its general control over street, to grant such franchises or to concert to their enjoyment, it might follow that a grant for a term of ye:rs would be valid and would confer a vested property ri?ht which could rot be destroyed by a rt-ital of the charter of the company to wmcn it was granted. For instance. In New York, the title to streets is vejtcHl in the city, and by reason of that It was held in People vs. O'Brien. Ill N. Y. 1, that an easement granted by the city to a street-railway company for a limited tin constituted an indefeasible title in the land, which wa rot terminated by a repeal of the railway charter; but that could not be so in Indiana, where the city lias no title to the streets, and has not . authority by virtue of Its general powers, and ojisfJe of the street-railway act.?, to grant the u.-te of streets to etreet-raUway companies. The general powers of control, as defined In the city charter, are the same from one day to another, and must be of constant application whether the street railways are operated and the franchises owned by one company or another. The power to limit r to terminate such franrhles is a part of the power to grant them, and, upon reaton, as well as upon authority, belongs to and remains In the sovereign, or Legislature, unless expressly or by clear Inference fce&lowtd elsewhere. Tht question or local

ffiff5vernTne.nt' manifestly, Is not essentially Involved. ..,Th,.ylew involves no fraud or hardship of!?.?. . PtpIe o' the city because it is n.uhe. t'Ower of the Legislature to J . ?Ji.ie . Position upon any company .f1 restrictions, productive of revJJ? QJ?r advantage to the public. The At Ji0u City Railway Company vs. mJ?x Ptyi 128 u- S.. 9. affords an illustraVl' lhe nature of things a street railway, onco established where needed, will be o - perpetual and increasing utility, and there setma to be no good reason why the franchise should cease while the utility lasts, though there may arise from time to ILme.' anJ within periods much shorter than thirty years, necessity for changing the rrw vS limitations or conditions under which the franchise shall be employed. How rar the power to make such changes shall be commuted to local authorities is a matI r,?L6lsiative discretion. Under the act tv . v Ll 18 retained by the Legislature, inat ody may amend, or. if it chooses, it n?JT repeal the statute, and so end all franchises and corporate life granted under it. According to somo authorities, when a charter is repealed provision must be made fr disposition of the corporate property, without connscatlon. In People vs. Boston, etc., Ity. Co., 70 N. Y., 570. speaking of the reserved power to alter, amend or repeal T? authrlzmg corporations, th. court wyd: "Under this reserved power the Legislature may impofe upon railroad corporations such additional restrictions and burdens as 'the public good requires. It may not confiscate property." In Dash vs. Van Meek. 7 Johns, 477, it was said: "It .'s repugnant to the first principles of Justice and the equal and permanent security of rights to take by law the property of an individual without his consent and give it to another." These expressions are reiterated and approved ir. People vs. O'Brien, supra. See also, Detroit vs. Detroit & II. P. R. R. Co., 43 Mich., IK). 5 N. W. Rep., 273. But in Green9xl vs. Freight Co., U5 U. S.. 13. 19. Justice sillier,, speaking for the court of the effect of the repeal of the charter of a corporation, said: "If the ess-mee of the grant of the charter be to operate a railroad, and to use the streets of the city for that purpose, it can no longer so use the streets of the city, and no longer exercise the franchise

or running a railroad in the city. In short, whatever power is dependent solely upon the grant of the charter, and which could rot be exercised by unincorporated private persons under the general laws of the State, is abrogated by the repeal of the law which granted these special rights. Personal and real property acquired by the corporation during its lawful existence. rlght3 of contract, or choses in action so acquired, and which do not In their nature depend upon the general powers conferred by the charter, are not destroyed by such repeal; . and the courts may. if the Leirislature does not provide some special remedy, enforce such rights by the means within their power. ,The rights of the shareholders of such a corporation, to their interest in its property are not annihilated by such a repeal, and there must remain in the courts the power to protect those rights." In that case, which concerned a street-railway franchise, the repealing act contained express provision for compensation to be made by the corporation which was authorized to "enter upon and use any part of the tracks of any other street railroad,' if the corporations interested could not agree upon "the compensation to be paid therefor;" so that the effect of the repeal without provision for such compensation was not before the court. Nevertheless, the principle declared, I think, must be accepted as sound. The unrestricted right of repeal being reserved by the Legislature, a repeal must be regarded as valid and effec.ve, whether or not accompanied with provisions for the just disposition of the coiorate property rights. If such provision is rot made, "there must be in the courts the power to protect those rights." But without statutory provisions to that effect, it is not perceived 1kw a court could compel a new company to take the tracks and equipment of the company whose franchise had been terminated. RIGHT TO STREET. If, therefore, the right of the Citizens Street-railroad Company to occupy the streets of the city and run its cars upon existing lines has ceased, and, under its contract the City Railroad Company has a right not, of course, to take possession of arid use the tracks of the other company but to put Its own tracks in the place thereof, then we are confronted with a case either of indirect confiscation, or of the destruction of property. The Citizens' company must either remove its tracks, destroying their value, or it must accept sucn price as the- City company shall choose to give and that is equivalent to confiscation. While an enactment to that effect would perhaps not be Invalid, a construction which leads to such results should not prevail wnen a reasonable interpretation is possible which involves no wrong or hardship either to the parties or to the public. The decision In Louisville Natural-gas Co. vs. State ex rel. 1 Reynolds, 133 Ind., 43, overruling city of Rushvllle ' v. Rushvllle Natural-gas Company,. 122 Ind., 575, is. 1 think, not without significance in respect to the Interpretation of the statue now under consideraion. The power given street railway companies by the statute to mortgage their property and franchises Indicates a purpose that the franchise should be a continuing one. Of what value is a mortgage on a franchise which Is to expire before or near the time when the mortgage will be enforceable? The doctrine that parties may, by their conduct, put an interpretation upon their contracts Is not applicable where adverse public Interests are involved. The public is not bound by the acts of ofilcers contrary to law, no matter how long maintained and acquiesced In. According to Reiner vs. Oxley, fcO Ind., 5S0, to which reference has been made, parties may Interpret their own contracts "so long as their interpretation does not result in a contract which for some reason is in itself unlawful." . ACT OF 1531. The act of 1S91, which affect3 the city of Evansville alone, cannot be regarded as a legislative construction which should operate to give the act of 1861 a meaning which 'otherwise, in the judgment of the court, It did not have. That act prohibited the Common Council and other authorities of that city from extending any franchise or franchises affecting the streets of the city "during the term for which they were originally granted by the city councils or other authorities." This presupposes but doe3 i.ot sanction the original grant for a term, nor does it confer a new power to make such term grants after the expiration of existing terms. It simply forbids what In this argument has been claimed to have been unlawful without such Inhibition, namely, agreements for extending terrr.3 before they had expired. If such agreements had been theretofore unlawful that statute should not be regarded as a legislative declaration of their legality. If the Common Council had authority to impose the original limitation of thirty years, then, in my opinion, the seven years extension was valid. The ordinance of April 7, 18&", granting that extension, if otherwise valid, as I think it is, was not without consideration In the mutual obligations and Interests of the parties and, granted as it was at the request of the company. Its acceptance should be inferred. Upon either view of the Council's power, therefore, the complainant has an unexpired franchise, for the protection of which it was entitled to Invoke the action of the court; and that, too, I think, without being driven to an election between the two theories. The remedy sought is the same In character, whether obtainable upon one proposition or the other. The same public interest Which forbids an interpretation of the contract by reference to the conduct of the parties excluding the Idea of estoppel hears upon this question, and entitles the plaintiff upon a proper presentation of the facts to a decree according to the law as determined by the court. And, even if no public right were Involved, it seems to me that an election would not be necessary. This brings us to a consideration of the rights of the defendant, the City Railway Company, and its alleged doino in derogation of the rights of the complainant, tiy the act cf March 6, lSl, constituting a new charter for Indianapolis, there was created a Board of Public Works, which was given power "to authorize and empower by con tract telegraph, telephone, electric light. ira3. water, steam, street car or railroad companies to usa alley or public place in euch city, and to erect necessary structures therein, and to prescribe the term3 and conditions of such use, to fix by contract the prices to be charged to patrons, provided that such contract Hhall in all cases oe suDmmea ty said board to the Common Council of such city. am approved by them by ordinance before tht same shall take enect. (Acts or 1&31, p. ICS.) Under this power the contract of April 21. 1S93, as set out In the ordinance of approval, passed the next day. which is made an exhibit In complainant's bill, was executed. In terms it granted to the defendant company "the right to lay and maintain" Its proposed lines of street railway, to be operated by electricity or other improved power, upon certain streets named, many of which are already occupied by the tracks of the complainant, and required he lines to be so located, It is claimed, as neces sarlly to Interfere with the ruaintllTs lines and obstruct the running of its cars. The proviso in the fourth section of this contract Is noteworthy. It reads: "Provided, however, that In addition to the lines herein specllled the party of the second part will be granted the right to build a line ex tpndinsr from Washington street to the city ' limits, both north and south, on uch streets as may be designated by the Board ' of Public Works and approved by ordlnance passed by the Common Council of said city." There is here no stipulation, nor as I think fair implication, that the additional line so proposed to be granted snail come under or be In any particular governed by the agreement made la respect to other

lines, and it does not appear that the board J made any further agreement on that sub- J Ject. It simply designated the streets upon which the additional lines should be laid, and, for the apparent purpose of supplying

tne aerect, tne common council auaeu 10 Its ordinance of approval, passed May, 189V a clause to the effect that the right so conferred should be subject to the terms, provisions and condition of the contract of April 24 and the ordinance approving that contract. By the act of 1& distinct powers are conferred upon tne Board of Public Works and upon the Common Council, respectively, and a Ju3t regard for the rights of the public requires that the distinction should be respected. The power of the Council in this matter was simply to approve or refuse to approve the contract of the board. If the mere designation by the board of the additional lines amounted to a contract it was the province of the Council to approve it In that shape or disapprove it. There is nothing to show that the board intended, and it certainly did not stipulate, either expressly or by necessary implication, that the lines so designated should be held and operated under the previous agreement. The rule is elementary "that when the mode of contracting is especially and plainly prescribed and limited, that mode is exclusive and must be pursued." Dillon Munic. Corp. Sec. 440. City of Superior vs. Norton, U. S. C. C. A., Seventh Circuit, June 7, 1S94. Terre Haute vs. Lake, 43 Ind., 4S0. Francl3 vs. Troy, 74 U. S. 33S. In Hedd vs. Providence Insurance Company, 2 Cranch, 127, 169. Chief Justice Marshall said: "The act of incorporation is to them an enabling act. It gives them all the power they possess. It enables them to contract, and when it prescribed to them a mode of contracting they must observe that mode, or the instrument no more creates a contract than if the body had never been incorporated." Approved Merrill vs. Montlcello. 138 U. S.,.673. 67. While It is not a question which need be decided, I incline strongly to the opinion, upon the showing made, that the CUy Railway Company acquired no right to lay Us so-called north-and-south lines. EQUITABLE RELIEF. On the other hand, I am of opinion that the complainant Is not entitled to equitable relief in respect to Its alleged rights In the streets so designated for theuse of the defendant. Prior to that designation the complaint had no lines upon those streets, except a fragment on Penn sylvania street, which had been practically. if not legally, abandoned. By its own charter, as I construe it indeed, according to the plalr. letter it has no rlsht to commence construction on a particular line without having first obtained the consent of the Council to the "location, survey and construction" proposed. The necessity for this consent was not affected, as I think, by anything contained in the ordinance of Jan. 18, 1864, or in the supplemental ordinance of Sept. 18, 1SG5. Besides, the entry of the complainant upon those streets: was in violation r.z the ordinances or li&'J and" 1803, and If rights were thereby acquired, the complainant, in view of all the circumstances, should rely upon the courts of law for their defense, rather than look to equity for their establishment. The question whether the last named ordinances are valid or not need not be considered, because by its own charter the complainant had no right to enter upon a street without the consent of the city, and the city was free, with or without reason, to give or withhold is consent. In respect to other streets, the defendant has denied, by its answer, the assertion of any claim to the present occupancy of the part of any street upon which the tracks of the complainant are laid, or that it is desired to lay and operate electric lines on any street upon which the complainant was, when its original bill vas filed, operating any such electric line "intll after the expiration of its right thereto, if any it has." But from the terms of the contract and ordinance under which the rights of the defendant are asserted, from the notice which it served upon the complainant, from all the evidence upon the point, as well as from the arguments of counsel, it Is evident that the defendant has been acting upon the assumption that the complainant's franchise and its right of possession of the streets have ended, and that, under its contract, the defendant may take the possession which the complainant has held of the streets. If not indeed of the complainant's tracks. The power given by the act of 1S91, to authorize and empower by contract com--panles cf various kinds named to use any street of the city, I think, it clear, was not Intended as a repeal of the franchises of existing companies no more so of street railway companies than of the various railroad companies whose roads occupy streets of the city. In so far, therefore, as the contract of April 21, 1SS3. by its terms confers or attempts to confer upon the defendant company the right to lay its tracks in the place of the track3 of the Citizens companyj or to appropriate those tracks. It Is an invasion of the rights of the latter company and whould be enjoined. I am not to be underwood as meaning thfLt under '-.the act of Ift'l. the city may not authorize tht defendant or any other- com pan w to.Uyts , 111- rjnic . nu ci't Kill vviliun. Wlf complainant's tracks are laid, but, without additional legislation, the cars of one company may not without consent run 'upon the rails of another company, nor may the rails of one be ko laid as to prevent or needlessly impede the running of the other's cars. Decree may go accordingly. JUDGE BAKER'S OPINIO. He Thinks the Citizens Franchise Expire in 11)01. Judge Baker's opinion differs as to the right of the city to terminate the life of the Citizens company. He holds that the city's consent granting use of the streets constitutes a franchise, wholly distinct from that granted by the Legislature. His opinion is as follows: The franceia? to be a corporation with the rignt or perpetual succession is derived by tne complainant directly from the State. (It. S. Ind. issl. bee. 4143 et eq.) Tne statute vvhicn imparts 10 it its corporate faculties confers upon it no right to enter upon the 3treets of any city to construct and operate a street raiiroau therein. It is expresiiy enacted' tnt "all street-railroad companies suail tirst ootaiu the consent 01 the Common Council to tne locatljn. survey, and construction of any eirect railroad tnrougn or across the public streets of any city beiore tne construction of tne s&me shall be commenced." it is plain that tne tate ha3 not undertaken directly to confer upon the complainant the rignt to occupy and use tne streets of tne cay for street ranroad purposes. Cnder the jfrancmses and ioers granted to it by the S:ute it is without autnonty to enter lipou the streets of tne city to construct andopeiate a railroad, 'tins right is aenvaoie irom the coiiseiu of the city aione. U'netner consent snail be granted or refused is exciueiveiy wtihin tne control of tne city. Tne rignt to occupy and ue tne streets of a cuy for rauioad-purpoaes is a tranchise, and is Wholly distinct Irom tne Irancnise'to be a corporation, wnich is derived oirectly irom the State. The latter lranciuse cannot be sold or conveyed unless express statutory authority is granted ior that purpose. Tne trancnise to use tlie streets tor railroad purposestne rignt of way on w.iicn to build and operate a railroad ior proiit-is tne subject of sale and conveanje. (New Orleans, Spanish Kort & LaKe Kail road Co. v. Delamore, 114 U. fc. 5ul). Tne consent of the city imparted to tne complainant a valuaoie lrancmjo wnicn, without sucn consent, it would not iiave posedsed. Tne btate tjave it tne capacity 10 receive and enjoy this right or iranchise, provided the city saw lit to grant it. 'I tie power to grant or refuse resided in ti:c city alone, and it carried with it the right to impose any terms not . loroidaen by law. If tne city may refuse permission to uae the streets at ali, it rauat nave a right to fix a limit to tne term of their use. lhe greater power must include the less. He wuo can give the wnoie can give a part, lie wo can grant absolutely can grant with a condition, reservation or limitation. Whether street railroads Khali be permitted to occupy tne streets at ail is left wholly with the city to determine upon its own judgment of tne public convenience and weltare. Tne ordinance of l&til was an entirety, to bi accepted or refused Just aa it was, and its acceptance was a condition precedent to the occupancy of the streets Xoining, therefore, could make the ordinance a consent but the performance of the condition the acceptance of the ordinance as a whole. (City of Alleghany v. Mlllrate, Aetna & Sharpsburg St. iy. Co. IS Atl. Uep. 2o2). The power to determine whether, and how long, street railroads may occupy the streets 01 a city primarily resides in the State; but It is a power whose exercise nas been wisely delegated to thobo who are directly interested in these questions. There is less danger of wrong and injustice in committing tneir determination to the city than there would be if the Legislature should deiermine them directly. The authorities of the city, acting upon matters of local concern diree'ly aifecting themselves and their fellow-citizens, are r.ot more likely to abuse their trusts ia fixing the terms ujon widen a street railroad may occupy the streets of the city ttan the Legislature would be. Local sellgovernment and home rule in matters of municipal concern are of the essence of a republican form of government. Abuses of these delegated powers are securely guarded against by the superintending power of the State to correct them. It seems to me that the Common Council had ample power to grant to the complainant the riht to use the streets for thirty years, subject to the paramount power of the State to alter the term. The fact that the complainant is invested with perpetual corporate existence does not, in my opinion, in any ca?e auee; the lower of the city to limit the use of the streets for railway purposes to a deJlnite term of years. A corporation having a limited term of existence may acaulre a ! title to property 'extend ine bvonl rp, of Its corporate lire, so, on xne otner hand, I a corporation bavin perpetual existence

may acquire property for corporate use for a term of years or in fee to be determined by the terms of the grant under which its title Is acquired. Nor does the power of the State to alter the term, in my Judgment, affect the binding force of the contract between the city and the street-railroad company. The obligation of a contract or a law is not affected or impaired by the mere fact that It may be determined by the happening of some uncertain event la the future. Until the contingency arises upon the happening of which their existence Is to be determined they are as binding and obligatory as though they were never to terminate. While the power of the State to alter or repeal remains unaffected, neither the city nor the railroad company retains any rightful power to impair or defeat the binding force of the contract evidenced by the ordinance and its acceptance. Neither does this view result In the confiscation of corporate property, nor in injustice to either the city or the railroad company. Each enjoys exactly what was mutually and understanding agreed upon. Consensus faclt jus. The denial of this right, on the contrary, would operate as a fraud upon the inhabitants of the city. It cannot be doubted if it had been understood at tte time the ordinance was adopted that the complainant would thereby acquire the rignt to use the streets in perpetuity it would there have been required to yield greater returns to the city than were exacted, or It would have been denied the right to use them at all. AS TO PERPETUITY. If it be conceded that the necessity and utility of street railroads will increase with the growth of the city's population, still the supply of such need may be, as it has been, safely committed tp those charged with the conduct of. its municipal affairs. Courts ought- not to construe the statute, unless such construction is imperatively demanded, so as to deny to the city the power to determine upon its view of the needs of the public, when and how long, and by whom Its streets shall be occupied "by railroad, tracks. Since the parties by mutual"contract have agreed on the measure of their, respective rights, no question can arise .as to what ought to be done with the property of complainant when its contract rights expire by efflux of time, further than to protect the rights of each a3 fixed by the contract. Nor does the fact that power was given to mortgage Its property and franchises enlarge the right of the complainant to occupy the streets. The mortgagees and bondholders were bound to Inquire into the title of the mortgageor, and they will be presumed to have made their investment on the faith of the title as disclosed by the statute of the State and the ordinances of the city. No injustice Is done them, for they get precisely what they contracted for. If it should be held that the complainant acquired under the ordinance a right to the use of the streets in perpetuity it would obtain a franchise of Inestimable value, contrary to the terms of the ordinance, and in violation of the rights and Just expectations of the Inhabitants of the city. In my opinion the Common Council had the power to agree with the complainant, as a condition of its consent to Its occupancy of the streets upon the term of such occupancy. Having the right to agree upon the term, it follows that it had the right to agree upon an enlargement of the term. In my Judgment the enlarged term wa validly granted upon a sufficient considf , tlon, and it has been accepted, so that th' .ghts of the parties have become fixed eyond the power of change by them except by mutual consent. It follows that the complainant has an unexpired franchise, for the protection of which against wrongful, impairment it has the right to invoke the aid of the courts. Nor do I think the complalntant is remediless because it relies upon inconsistent positions for relief. The theory upon which it seeks to maintain its right to relief is the same whether its franchise to use the streets is perpetual or whether it expires in seven years. The relief obtainable in the present suit is the same in kind whether its rights in the streets are limited or perpetual. A court will not refuse appropriate relief simply because the complalntant has asked for greater relief than the facts of the case will warrant. This brings us to consider the rights of the City Hallway Company and Its acts in derogation of the rights of the complalntant. The act of March 6, 1831, which constitutes the charter of the city of Indianapolis, confers upon the Board of Public Works, which was thereby created, the power "to authorize and empower by contract, telegraph, telephone, electric light.'' gas, water, steam or street car or railroad companies to use any street, alley or public place in such city and to erect necessary structures therein, and to prescribe the terms and conditions of such use, to fix by contract the prices to be charged to pUrons: provided, that - such contract shall in all cases bo submitted by said board to the Council of such city, and approved by them by ordinance before the same shall take effect." Acts of IStfl, p. 169, Sec. 59. Under this power the contract of April lSitf,- which is set out in the ordinance' of approval passed the next day, ind which Is made a part of the bill of complaint' was executed. The contract granted to the defendant company the

right to lay and maintain its lines of street railway to 'be operated by electricity or other improved power, upon certain designated streets, man - of which are already occupied by tracks of complalntant and required the lines of the defendant company to be so located. It is alleged, as necessarily to interfere with the complaintant's linea and to obstruct the running of Is cars. The contract further provided "that In addition to the lines herein specified the party of the second part will be granted the right to build a line extending from Washington street to the city limits, both north and south, on such streets as may ne designated oy tne uoard of Public Works ind approved by ordinance passed by the common Council of said city.' UNDER ORDINANCE. In May, 1S93, the Board of Public Works designated certain streets extending from Washington street to the city limits, both north and south, as the streets on which the defendant company was to be granted the right to lay and maintain a line of street railway. The Common Council by ordinance enacted "that the action of said Board of Public Works in designating said line to be and the same is hereby approved, and said the City Railway Comranv is here by granted saia line and the right to the same in accordance with the terms, provisions and conditions of the contract and ordinance approving the same." Where there is no express stipulation that the additional line should be governed by the contract of April 24, 1SW, which governs the other lines, still it seems to me. even without regard to the explicit language of tne oroinance 01 .May, ijrm, it must he held that such additional line falls within and is to be governed by that contract. Such manifestly was the purpose and under standing of the contracting parties, and I do not think their obvious Intention can or ought to be defeated by the application of rigid and technical rules of construction. Here are two parties, the city, by its Board or mimic works and common Council. and the defendant company, capable of contracting, it is too clear for debate that ail these parties nave agreed to the desig nation of the north-and-south line, that such designation has oeen approved bv or dlnan.ee and accepted by the defendant company. It Is a fundamental rule in the construction of contracts that it is the duty of the court to ascertain and give effect to the intention of the parties, if lawful, whenever it can be done, ut res maela valeat quam pereat. It seems to me, while the contract m regard to the north-and south line Is not technically formal, that taken as a whole, in connection with the ordinance of April 24. 1S93. It contains enough to be binding on both contracting parties. But If I am in error as to the right of the defendant company as to the north-and-pouth line, it would not aid the comDlainant. Prior to the designation of the additional north-and-south street for the use of the defendants,- the complainant had no lines upon these streets, except a frar ment on South Pennsylvania street, which had been practically, ir not legally abandoned. I do not think the comnlainant. under the ordinance of 18G4 or 1SC3, had any vested right to commence the construction of a particular line without flrsL' obtaining the consent of the Common Council to "the location, survey and construction" of such proposed line. Therefore, the complainant having obtained no consent from the city to occupy the streets in question, has no right to complain of their occupation by the defendant company. Other questions are presented In respect to the streets occupied by the complaint with the consent of the city. The defendant, by its answer, denies that It sets up any claim to the present occupancy of that part of any street upon which the tracks of complainant's railway are laid, or that It Intends or threatens to lay and operate lines of electric railway on any street on which the complainant was operating an irr4-lc line at the time suit was brought "until after the expiration of its right thereto, if any it has." But from the terms of thA contract and ordinance under which the defendant company has acquired tha streets which It assert?, from the notice served upon the complainant, from the acts of defendant, as disclosed In the record, as well as from tne ciaims or us counsel, It peems apparent that the defendant company has been acting on the theorj' that the complainant's right to occupy the streets has ceased, and that, under Us contract. It may rightfully take possesion of them, and expel the complainant therefrom. Jn my opinion the defendant has no such right. In so far as the defendant company claims the right to Interfere with the complainant's free and unobstructed use of Its fins of rlrric rallwav on all the streets irr rightfully occupied by It. Its claim Is wrongtul ana injurious. To the extent neci essary to protect Its quiet and undisturbed

use of these lines against Invasion by the defendant company, the complainant is entitled to the aid of the court. I entertain no doubt that the amended bill presents a federal question which gives the court Jurisdiction. I have heretofore expressed my views on the question, and I do not think it needful to add anything to what I have already said on the subject.

HOW 3IR. MASOX VIEWS IT. Company Can oir Get 31 ore 3Ioney for Improvements. Mr. Augustus L. Mason, president of the Citizens' Street-railroad Company, was seen by a reporter and asked his views con cerning the opinions filed In the federal court. Concerning the law of the case." said Mr. Mason, "there is little to say. The decision vindicates the opinions of the counsel of McKee & Verner at the time they pur chased the property: at the time the Board of Public Works undertook to auction off our street railway rights to the City Railway Company and subsequently. The average man will feel, I think, that in this case moral Justice to the purchasers of the street railroad required the present decision rot less than the law itseir. in air. aicKee's absence I feel at liberty to say that no one except those of us who are closely associated with him can probably appre ciate his courage, his intellectual resources, and his unbounded faith in the opinion of his lawyers. The City railway scheme was sprung within two weeks alter tne purchasers took possession of the property. A timid man would have canceled the enormous contracts newly made for giving the entire city a first-class electric street railroad; not so with Mr. McKee. He said: We will fight out our own quarreis, out the people shall not suffer. Indianapolis has wretched street railroadsu It is our duty and our business to give It the best possible system.' Week after week our great expenditures continued. Then came the bank panic. Mr. McKee, ably supported by Mr. , verner and Mr. uiay, orougut, his personal credit . to the assistance of the company. Then came an enormous loss of receipts owing to the hard times. This Mr. McKee met by giving his personal attention to every form of our operating expenses. For months he gave two days of even week to this property. He came here and personally directed the conduct of the company during the labor troubles at and subsequent to the encampment. His capacity for detail is unDounaea. a. copy of every pay roll is sent to him, with its hundreds of names, and he personally rhPfW it off. Tn these resDects the present owners are in marked contrast with the former Chicago owners, who were not street railroad men. and gave nttie per sonal attention to the property. "The practical bearing or tne aecision is that It puts the company in a position to get the money needed fo? new improvements. Many miles of track need to be reiaid. Some suburbs have been urgent for extended lines; more cars are needed. These thing- take cash counted by the hundreds of thousands 01 aoiiars ana x oeueve tne decision of the court brings them nearer. This is the trust reposed in the company to give the people complete and adequate facilities, and the decision or me zeaerai court now makes It easier for this public trust to be faithfully discharged." HOW THE ATTORNEY'S FEEL. 3Ir. Winter Thinks the Citizen' Com pany Position Sustained Entirely. Ferdinand Winter, of the counsel for the Citizens' company, was highly pleased with the decision. He considers it a decided victory for his client. He looks upon the decision of Judge Woods as giving the Citizens' company all they, asked for In that it declares the seven years' extension to be valid, and declares that the city Council had no power to place a limit upon the time of the charter. "In short," he said, ha riaMeinn uhs t an t Lall v sustains the Citizens' company in the position which it m has assumea. . The members or the city company ao not ,,rvnn tho daletnn with the kb mp nleasure. They claim that, on the same points of law, tne aecision is contrary to .mat recently rendered in Cincinnati in the Toledo case. That decision, one of the City company says, held that the city had the right to limit tne lime ui me cimi icr giauieu. Other attorneys In speaking of the matter said that under the. decision the only relief the city can get Is through an act of the Legislature amending the charter and limiting the time. . A n An appeal will be taken to the Supreme Court. AT MR. WATSON'S HOME DETAILS OP EXCURSIONS TO RUSH. VILLE NEXT WEDNESDAY. New Congressman from Fourth Dlstrlct Cnlln on Gen. Harrison and Akfl Him to Attend. Hon. James E. Watson, Col.' Ed Wolf,' Chairman Gowdy and several others called on ex-President Harrison yesterday and Invited him to attend the ratification at Rushvllle next Wednesday night. General Harrison declined, saying that the fact of victory pleased him greatly, but that he could not participate In ratification meetings. He congratulated Mr. Watson sincerely upon his election, and said he was glad if hlr. trip and speech through the Fourth district had been of any assistance to him. The arrangements for an excursion to Rushvllle next Wednesday night for the ratification were completed yesterday by Mayor Denny. The C, H. & D. will run a special train to Rushvllle, leaving here at 6 o'clock. The fare for the round trip will be 60 cents. It is believed that a thousand persons will go at this rate. The Knights of Pythias or Mooresville wrote to Mayor Denny yesterday asking what the rate would be. The members Intend going as a body without regard to politics, Mr. Watson being the last chancellor commander of the Grand Lodge. LETTIX OFF STEAM. Traveling Men Republican Club 1 Han n Jollification. The Traveling Men's Republican Club met in their rooms last night to "let off. surplus steam." The exhaust pipe was thrown wide open and the amount of surplus steam found to be on hand was surprising- In view of the large amount that had been turned on by the club during the campaign. The night was cold, damp and altogether miserable, yet a large crowd of enthusiastic Republicans attended the meeting and felicitated one another upon the gigantic victory achieved by their party in the election. With the proverbial acumen of their profession, the traveling men did not forget. In the hour of their victory, that they must prepare for future battles and other campaigns. This was in fact taksn up from the outstart of the meeting, and mentioned by the first person who addressed the club. The club was organized two years ago. Just after the Republican party had euITered an overwhelming defeat. It was organized by seven faithful "drummers." who had confidence in the ability of the traveling men of the State to exert a large Influence for the party. The seven kept up the organization for a time by themselves. It was hard work to get new members at the outstart, after such a defeat by the party, but the men made use of the wrae energy that they put Into their business and were finally successful In getting the organization en to Its feet, and it became one of the most effective political organizations In the Slate. At last night's meeting Messrs. Charles Schmidt, Cart;y Mcl'herson. T. I, tfwaln, Charles Ltifler and others all spoke of the necessity of keeping the organization alive, and active as It ever had been and preparing for the campaign of 1806. Mr. Mcpherson, In speaking of the organization of the club, said it had been its purpose then to never relent In the war till it had placed the city, county, State and Nation under Republican rule. It had been a valuable factor In securing the success of the Republican party In the first city election after its organization, and now it had seen the country pass out of the control of the Democratic ring. To continue its purpose, he said, it must begin early to prepare for the national campaign In Ptftf and assist in again putting a Republican President in the White Rouse. Mr. Schmidt cautioned the members against letting the Immensity of the pluralities make them too confident of their ability In future campaigns. It does not take the traveling men long-to devise ways and means of executing their plans, and they found last night a very effective way to keep up interest in political matters for several month3 to conic All of the Congresamcn-elect In ths State were elected honorary members of tne club, and en invitation . was extended to each of them to address the club. The club meets every two weeks, and the plan Is to have a Con-gressman-elect address it at each succeeding xstlng for thirteen consecutive nights.

The secretary was Instructed to address each of the Congressmen-elect and r.ot'fv them of their election to honorary membership and ask them to address tne ciao. The order of their appearance will be arranged later. It Is probable that James Watson, who defeated Holman in th Fourth district, will be the first to address the club. William C. VanArsdel. Representativeelect, spoke briefly and pledged himself to a fair apportionment of the State and any other legislation that was foi the interests of the city, county or State. He also sail he believed the commercial travelers did more for the success of the Republicaa tickets than any other ten organizations la the Staae. Thaddeus S. Rollins, who was called on to speak, also spoke tn favor of a fair apportionment, saying that if the Republicans could not win under a fair apportionment they did not deserve to win. During the meetirg a telegram from Sheriffelect Womack was received from Shelbyvllle. He sent his regrets that he was unable to be present at the meeting and thanked the club for the asi stance rendered him In the canvas. Auditor-elect Harry Smith was aI?o called on and spoke briefly, returning thanks to the club for it work in the campaign. A vote of thanks was given the Journal and to the Baldheaded Glee Club. JfEW JUSTICES QUALIFY,

Xlckcrson Succeeds Walpole and Lockmnn Follow Hablch. William NIckersoa and William Lock- ' man, the candidates for justice of the peace on the Republican ticket receiving the highest vote, take their offices immediately. Both qualified yesterday. Mr. Nlckersoa. succeeds Luke Walpole and Mr. Lockmaa succeeds Carl Hablch. The deputy prosecutors for these courts have not yet been announced. Arthur Whitesell wUl be Justice Nickerson's constable and Harvey Huston will be Lockman's constable. John Herig, ' of West Indianapolis, and Joha Sears, of Bright wood, will move to th city, open offices and bring their constables with them. Justices Daniels and Johnson do not go out of office for more than a year. New Legislative Bills. There are a number of bills to be pre sented to the next Legislature, some of which will be of particular Interest to Indianapolis. One will give the city some of the powers now delegated to the County Commissioners, and will prevent the extravagance and rottenness which has scandalized the Board of Commissioners In this county during" the last few years. Another bill will put the School Board under tha control of the Mayor, and this will wip out Frenzelism. An attempt will be made ta put coroners and justices of the peace on salaries. Novel Editorial Mention. ' The Paoll News, of Paoll. Orange couitr, announces the result of the election in an original way. On the editorial page tha three columns usuallv devoted to edltorUl matter Is taken up with the announcement. In large letters running the full length of the columns: "Landslldel Tha Republicans appear to have carried tha earth, moon ana stars." Engineering Club Meeting;. The Indianapolis Engineering Club helj a regular meeting last evening In the Commercial Club rooms. On account of other important business the paper by Rolllrt Defrees on "A Regenerative Power Plant, was postponed until the next meeting. Tha club has secured permanent rooms in tha Lorraine Block, at Washington and Tennessee streets, which will be fitted up as library and reading rooms and be the permanent home of the society. Incorporated Yesterday. Articles of association of the Climax Baking Powder Company were filed yesterday with the Secretary of State, showing a capital stock of $100,000. The Incorporators are Alfred B. Gat, Henry B. Gates and William N. Gates. An establishment for tha manufacture of baking powders will ba opened in Indianapolis. Tha Peru Eleotrio Light andi Power Company, of Peru. Ind.. was incorporated yesterday with a capital stock Of JbO.000. Flekt on Indiana Avenne. John Butts, an Indiana-avenue plumber, and Frank Hughes got Into a fight yesterday, which resulted in Hughes getting a deep scalp wound on the top of his head. Hughes claims that Butts owed him for work performed and refused to pay when he called for the money, but instead ordered him out of the place. The fight followed. Hughes was arrested and the police wera looking for Butts last night. City's Parle Committee. . Mayor Denny yesterday appointed a park committee from the City Council to act la conjunction with the Commercial Club commission In relation to the subject of parks. It consists of W. H. Cooper, George Merritt and P. J. Ryan. He also appointed an advisory committee consisting of Oran Perry, Samuel 11. Shearer and George J. Tanner, who have given the subject much attention in the past. Counterfeit Ilnlf Dollars. A very poor counterfeit half dollar is la circulation in this city. Two of them wers passed at the box office In Tomllnson Hall during the chrysanthemum show and one was passed yesterday at the Monarch grocery, on East Washington street. They are almost one-fourth light in weight and the workmanship is of the poorest quality. They bear the date 1SD1. Arrested in His Victim's Home. Frank Walton, the negro who shot William Burkman in a saloon fight on Prospect street a few weeks ago, was arrested yesterday. He returned to the city and called on his victim at his home on Fletcher avenue. The police were notified and arrested him before he left the house. "TilAEiCE CLflinVOYfctiT" 8end bo ctoU, with full mi and stamp and mr-lrboroccop ot future lif. Mrs. It- Mxrr. ctdst. irad tranr inadiuia. errnlh daughter, born vub red and wontlrrf al trlftot wtnd tight :wllDat.DrmnnS II in vand fuiurtt fall nsa of wyu will 'J ''UA m wrJ aanrrr. &dric on buinsa. lor a. marria. fjwulatloa, rhanirva, loues. divorce, miaiinr friend. rations, sicknew, -wll is. pensions, etc., fhaUcnr tha world. It Is well-known throughout t)i world thai mediums are the only reliable eeers, and tolr chinas cause lore, speed marriages aad success in business. SECURE A CHARM tyrT AND IIT YEAR DIAnGUDS M p.:r l'ur Future ltercalcdiB a dead traacc fnltet the Fparated nd cans speedy and happy majw rlare with tli one r on love; cnuw rod luck in ail thing by proper 1tc. Kto1s erervt hmr- fr"oitiTelr no imposition. Mrs. Ir. Meere, Ilex 405, cWrtsKj Xacky Charm YklLL (Cepyrlciled.) RAILWAY TI3IH-TAIILKS. PENNSYLVANIA LIKE TO Chicago and the northwest The only line from Indianapolis running Into the Union Station at Chicago, thus saving a very tiresome and tedious transfer through that city. TIME. Leave 11:15 a. m. Arrive Chicago ,5: P. ra. Leave ni. Arrive Chicago 7:S0 a. rn. Pullman Buffet parlor car on day train and Iullman sleeper on night train which starts from here, and is open to receive raBsengers every night at 5:30 p. m. Call on agents. 4? West Washington street, 46 Jackson place or Union Station, or address O. E. ROCKWELL. D. r. A., Indianapolis. VANDALIA LINE THE OFFICIAL ROUTE FO t THE MUsUsippl Valley 3Ied!cal Association, Hot Spring, Ark., Xovrtaber lSth to 20th. fjrONE FARE RATE.1 Four through trains to St. Louis, leaving 7:20 a. m.. 11:I0 a. m., 12:40 p. m. and 11:20 p. m. Local sleeping car on night train. GEORGE E. ROCKWELL, D. l A. Best Lino to Cincinnati For anr Information fall t Clt Tcfcwt O.Rcts No. 'J West Wasuiuj. ton street, corner MrrMtau: Tr&Ui" arrive suit iii.trt iron Jnl'JU StiUoU. list llOWs: Trave. Jtrrtre. Cincinnati Exp ess t luatn i:15 Ciu. Toledo bt Detroit UttMlam 11:43: Ctn-Iyton and Lima....... V ii in t7.:Ofaa Ctn-VeailUn. Uunivd 4 Kiyru lO .C3 m Ca.,Tcie.Voant lx;iro)t .... t&:5i3i Pe'.iJUua D4UJ. 1 Daily, etcept fcuuiliur.

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