City of Indianapolis v. Navin

• Decision Date: 11 June 1897
• Docket Number: 18,246
• Citation: 47 N.E. 525,151 Ind. 139
• Parties: City of Indianapolis v. Navin
• Court: Indiana Supreme Court

47 N.E. 525

151 Ind. 139

City of Indianapolis v. Navin

No. 18,246

Supreme Court of Indiana

June 11, 1897

Rehearing Denied July 1, 1898, Reported at: 151 Ind. 139 at 156.

From the Marion Circuit Court.

Affirmed.

John W Kern and James B. Curtis, for appellant.

W. A Ketcham, Attorney-General, and Frederick E. Matson, for appellee.

OPINION

Monks, J.

This action was brought by appellant to collect the penalty provided for the violation of an ordinance, in refusing to pay the fare of five cents prescribed by said ordinance for riding upon a car of the Citizens' Street Railway Company. Appellee filed an answer admitting the passing of the ordinance, and its validity, and that he had ridden as alleged, and had refused to pay the fare of five cents demanded, but justified such refusal under the act approved March 6, 1897 (Acts 1897, p. 201), amending section 9 of the law providing for the incorporation of street railways, and adding supplemental sections thereto, alleging that he had tendered the full fare of three cents as provided by said act, but the conductor in charge of the car refused to receive the same, appellee claiming that after the passage of said act, the ordinance was of no validity, except so far as it required the payment of three cents in place of five as prescribed by said ordinance. To this answer appellants replied, denying the validity of the act in question, for the reason that the legislation was purely local and special, and therefore invalid, because in violation of the constitutional provision on that subject. Appellee's demurrer to this reply was sustained. Appellant refusing to plead further, judgment was rendered in favor of appellee. The only error assigned calls in question the action of the court in sustaining the demurrer to said reply. If said act of March 6, 1897, is unconstitutional, the judgment of the court below must be reversed; but, if constitutional, the judgment must be affirmed.

The act authorizing the incorporation of street railway companies was approved Jan. 4, 1861. Acts Spec. Sess. 1861, p. 75. Section 5450, et seq., Burns' R. S. 1894 (4143, et seq., R. S. 1881). Section 9 of said act being section 5458, Burns' R. S. 1894 (4151, R. S. 1881), provides that "The directors of such company shall have power to make by-laws * * * for regulating the fare of said road or roads." In this act the legislature made no provision for the regulation of the fares, but left the same to the discretion of the board of directors until the legislature should see fit to make other provisions. The act of 1897 re-enacts said section, with a proviso "that in cities in this State having a population of 100,000 or more, according to the United States census of 1890, the cash fare shall not exceed three cents for any one trip or passage upon the street railroad or roads," with transfer. It is insisted by appellant that the act of 1897 is unconstitutional because it impairs the obligation of a contract. Counsel for appellant do not point out any contract, the obligation of which is impaired by said act. If it is the contract under which the street railway company took possession of the streets of Indianapolis and constructed its tracks, it is sufficient to say that the city was not authorized to enter into any contract which would prevent the legislature from legislating upon the subject of fares. It is settled law that the legislature has the power to reasonably regulate the rates of fare for the transportation of passengers within the State on street railways. Hockett v. State, 105 Ind. 250, 258, 259, 5 N.E. 178; Central Union Telephone Co. v. Bradbury, 106 Ind. 1, 5 N.E. 721; Central Union Telephone Co. v. Falley, 118 Ind. 194, 19 N.E. 604; Ruggles v. Illinois, 108 U.S. 526, 531, 27 L.Ed. 812, 2 S.Ct. 832; Stone v. Farmers' Loan and Trust Co., 116 U.S. 307, 325, 29 L.Ed. 636, 6 S.Ct. 334; Dow v. Beidelman, 125 U.S. 680, 688, 31 L.Ed. 841, 8 S.Ct. 1028; Covington, etc., Bridge Co. v. Kentucky, 154 U.S. 204, 213-215, 38 L.Ed. 962, 14 S.Ct. 1087; Covington, etc., Turnpike Road Co. v. Sandford, 164 U.S. 578, 17 S.Ct. 198, 41 L.Ed. 560; Wellman v. Chicago, etc., R. W. Co., 83 Mich. 592, 47 N.W. 489; St. Louis, etc., R. W. Co. v. Gill, 54 Ark. 101, 15 S.W. 18, 11 L.R.A. 452, and note. Besides, section 11 of said act of 1861, being section 5463, Burns' R. S. 1894 (4153, R. S. 1881), expressly reserves to the legislature the right to amend or repeal said act at its discretion. The right of the legislature, however, to regulate the fare upon street railroads organized under the act of 1861, does not depend upon the reservation in section 11 of the right to amend or repeal said act. That power would exist even if the right to amend or repeal the act had not been reserved. In order to exempt a common carrier from legislative control over its rates of fare, it must appear that the exemption was made in its charter by clear and unmistakable language, inconsistent with the exercise of such power by the legislature. Covington, etc., Turnpike Road Co. v. Sandford, supra; Georgia Banking Co. v. Smith, 128 U.S. 174, 32 L.Ed. 377, 9 S.Ct. 47; Chicago, etc., R. R. Co. v. Iowa, 94 U.S. 155, 24 L.Ed. 94.

Appellant had the power to prescribe the terms upon which, and the time for which, a street railroad company organized under said act of 1861 should occupy the streets of said city; but such contract, when made, was subject to the right of the legislature to amend or repeal said act at its discretion, and no contract made by the city with a street railroad company could prevent the exercise of such power by the legislature. It is clear, therefore, that said act of 1897 does not impair the obligation of any valid contract of either the State or appellant. The right to regulate the fares on street railroads, however, does not include the power to require said companies to carry passengers without reward, or for such sum as would amount to confiscation or the taking of property without compensation or due process of law. A statute containing such requirements would be in violation of the provisions of the constitution of the State, as well as the provisions of the constitution of the United States. Chicago, etc., R. R. Co. v. Iowa, supra; Munn v. Illinois, 94 U.S. 113, 24 L.Ed. 77; Stone v. Farmers' Loan and Trust Co., supra; Georgia Banking Co. v. Smith, supra; Chicago, etc., R. W. Co. v. Minnesota, 134 U.S. 418, 33 L.Ed. 970, 10 S.Ct. 462; Budd v. New York, 143 U.S. 517, 36 L.Ed. 247, 12 S.Ct. 468; Brass v. North Dakota, 153 U.S. 391, 38 L.Ed. 757, 14 S.Ct. 857; Covington, etc., Bridge Co. v. Kentucky, 154 U.S. 204, 213, 214, 38 L.Ed. 962, 14 S.Ct. 1087; Covington, etc., Turnpike Road Co. v. Sandford, supra; Attorney General v. Old Colony R. R. Co., 160 Mass. 62, 86-91, 96, 97, 35 N.E. 252, and cases cited; State v. Fremont, etc., R. R. Co., 23 Neb. 117, 36 N.W. 305; Note to Cleveland, etc., R. W. Co. v. Closser, 9 L. R. A. 754. No facts alleged in either the complaint or reply show that the act of 1897 fixing the fare at three cents, by its necessary operation deprives any street railway company of its property without compensation or due process of law. Therefore that question is not presented for our determination. Dow v. Beidelman, supra; Covington, etc., Turnpike Road Co. v. Sandford, supra.

It is next insisted by counsel for appellant that although the right to amend or repeal said act was reserved by the legislature, said amendment is a local and special act, and is therefore in conflict with section 13 of article 11 of the constitution, which provides that "corporations, other than banking, shall not be created by special act, but may be formed under general laws." The power to declare a statute unconstitutional is one of the highest intrusted to a judicial tribunal, and is only to be exercised with the greatest care, and only when there is no doubt of the unconstitutionality of the law. If there is any doubt in the mind of the court as to the constitutionality of a law, it must be resolved in favor of its validity. To doubt is to resolve in favor of the constitutionality of the law. Citizens Street R. R. Co. v. Haugh, 142 Ind. 254, 41 N.E. 533, and cases cited; State, ex rel., v. Roby, 142 Ind. 168, 41 N.E. 145. It is not necessary, under the provisions of section 23 of article 4, declaring that all laws shall be general and uniform throughout the State, that legislation concerning cities should operate uniformly on all the cities in the State, to make it general. A law which applies to cities having a population of 100,000 or more, when there is but one such city, and is so framed as to operate on all other cities in the State as they acquire the necessary population, is a general law, because it operates upon all cities alike, under the same circumstances. Pennsylvania Co. v. State, 142 Ind. 428, 41 N.E. 937. Neither is it necessary that a law concerning the fares to be collected by street railroad companies shall operate uniformly on all street railroads in the State. It is sufficient if it operates alike upon all such companies under the same circumstances and conditions. Such a law is general, within the meaning of the constitution. Pennsylvania Co. v. State, supra, and cases cited; Bell v. Maish, 137 Ind. 226, 36 N.E. 358; Young v. Board, etc., 137 Ind. 323, 36 N.E. 1118; Gilson v. Board, etc., 128 Ind. 65, 69, 27 N.E. 235 and cases cited; Elder v. State, 96 Ind. 162; Heanley v. State, 74 Ind. 99; State, ex rel., v. Reitz, 62 Ind. 159; Hanlon v. Board, etc., 53 Ind. 123; Groesch v. State, 42 Ind. 547; Note to State v. Ellet, 47 Ohio St. 90, 21 Am. St. 780-789, 23 N.E. 931.

Counsel for appellant seem to understand that this court held in Mode v. Beasley, 143 Ind. 306, 42 N.E. 727 that the words...