City of Vincennes v. Vincennes Traction Company

• Decision Date: 27 June 1918
• Docket Number: 23,241
• Citation: 120 N.E. 27,187 Ind. 498
• Parties: City of Vincennes v. Vincennes Traction Company
• Court: Indiana Supreme Court

120 N.E. 27

187 Ind. 498

City of Vincennes v. Vincennes Traction Company

No. 23,241

Supreme Court of Indiana

June 27, 1918

From Clay Circuit Court; John M. Rawley, Judge.

Suit by the city of Vincennes against the Vincennes Traction Company. From a judgment sustaining a demurrer to the complaint, the plaintiff appeals.

Affirmed.

William H. Hill and Charles E. Henderson, for appellant.

James Wade Emison, Wade & Padgett, William S. Hoover and Ewing R Emison, for appellees.

OPINION

Myers, C. J.

Appellant brought this suit against appellee to enjoin the latter from replacing its double track of street railroad now maintained by it on Seventh street, in the city of Vincennes, with a single track. The complaint, in one paragraph, was tested by a demurrer on the grounds: (1) That the court had no jurisdiction of the subject-matter; and (2) for want of facts. This demurrer was sustained and judgment thereon followed. That ruling is assigned as error.

From the complaint we learn that in October, 1881, the city of Vincennes, by ordinance, granted to appellees' remote assignors, their successors and assigns, for the term of fifty years the right to construct, maintain and operate a single-track street railroad over its streets. Thereafter, in July, 1891, appellee's predecessor, by an ordinance amending the original, was given the right, for the balance of the fifty-year term, to construct, operate and maintain an overhead or some other improved system for the propulsion of its cars. At first the company established, constructed and operated a single track, and later a double track on Seventh street and was maintaining and operating double tracks at the time appellee took over the plant. Since that time appellee has operated, and now is operating, double tracks on Seventh street, but will, unless enjoined, and without the consent of appellant, immediately remove one track and continue to maintain and operate a single track only, which is inadequate to furnish reasonable service to the public and residents of appellant residing on and tributary to this particular street line, in violation of its contract, for the redress of which appellant has no legal remedy as practical, complete and efficient as that afforded in equity.

Appellant's contention is grounded upon § 3 of the ordinance of 1891, which reads as follows:

"Section 3. Be it further ordained that the right and privilege is hereby granted to the said Vincennes Citizens Street Railway Company to construct, operate and maintain single or double tracks, with all convenient turnouts and sidings, under this ordinance for the unexpired term of the above named ordinance, namely forty (40) years from the 24th day of October, 1891, upon condition that said street cars be propelled by electricity exclusively, or some other approved mode of propulsion, other than animal power on or before July 1, 1892; otherwise this ordinance to be null and void."

This ordinance was passed pursuant to general powers conferred upon municipalities by the legislature and, on its acceptance by appellee's grantor, it became in its nature a contract right, alike binding upon the state, municipality and the utility. Williams v. Citizens' R. Co. (1891), 130 Ind. 71, 73, 29 N.E. 408, 15 L. R. A. 64, 30 Am. St. 201; Grand Trunk, etc., R. Co. v. City of South Bend (1912), 227 U.S. 544, 556, 33 S.Ct. 303, 57 L.Ed. 633, 44 L. R. A. (N. S.) 405; Chouquette v. Southern Electric R. Co. (1899), 152 Mo. 257, 53 S.W. 897; Baumgartner v. City of Mankato (1895), 60 Minn. 244, 62 N.W. 127.

Appellant takes the position that, when appellee or its predecessors affirmed its option to construct and operate double tracks, it became bound thereby to continue their operation unless the city consented to their discontinuance.

The general assembly of this state, in 1861, at a special session, enacted a law for the incorporation of street railway companies. Acts 1861 p. 75, § 4143 et seq. R. S. 1881. Section 5 of that act, authorizing the use of streets by such companies was amended in 1891, Acts 1891 p. 109, § 5454 Burns 1894, and was in force June 3 of that year. This section, as amended, provided that "Such company may construct its track, switches, sidetracks or turn-outs upon the streets of said cities or towns under the following conditions and restrictions." Then follows a direction as to the part of the street to be occupied and other provisions for the construction of such road with reference to the street grade, etc. Section 12 of the act, supra (§ 5464 Burns 1894), and in force at the time this ordinance was passed, provided that: "Nothing in this act contained shall be so construed as to take away from the common councils of incorporated cities the exclusive powers now exercised over the streets, highways, alleys and bridges within the corporate limits of such cities; and all street railroad companies which...