Municipal City of South Bend v. Blue Lines

• Decision Date: 11 February 1942
• Docket Number: 27604.
• Citation: Municipal City of South Bend v. Blue Lines, 219 Ind. 462, 39 N.E.2d 439 (Ind. 1942)
• Parties: MUNICIPAL CITY OF SOUTH BEND v. BLUE LINES, Inc.
• Court: Indiana Supreme Court

39 N.E.2d 439

219 Ind. 462

MUNICIPAL CITY OF SOUTH BEND v. BLUE LINES, Inc.

No. 27604.

Supreme Court of Indiana

February 11, 1942

Nathan Levy and Jos. A. Roper, Asst. City Atty., both of South Bend for appellant.

Jones Obenchain & Butler, of South Bend, for appellee.

SHAKE Chief Justice.

The appellee has pressed us to consider and apply the rules stated in the following cases: Toronto Ry. Co. v. City of Toronto, 1906, 37 Can.S.C. 430, affirmed Privy Council, Law Reports Appeal Cases [1907], p. 315 (Eng.); Turners Falls Fire Dist. v. Millers Falls, etc., 1905, 189 Mass. 263 75 N.E. 630; Georgia Ry. & Power Co. v. Town of Decatur 1923, 262 U.S. 432, 43 S.Ct. 613, 67 L.Ed. 1065; and Georgia Ry. & Power Co. v. City of College Park, 1923, 262 U.S. 441, 43 S.Ct. 617, 67 L.Ed. 1074. The above cases involve rights and obligations arising out of franchises, which are in the nature of special privileges conferred by the government, while the contract with which we are concerned is one entered into by the city in its proprietary capacity.

In its petition for a rehearing the appellee presents two propositions. It is first asserted that 'As construed by this court, the annexation ordinances add to appellee's burden of performance and thereby substantially impair the obligation of appellee's contract'. We did not construe the annexation ordinances; we construed the contract. An ambiguous contract is not impaired by a construction which gives effect to the intentions of the parties.

It is next asserted that 'If the true theory upon which the case ought to be tried is whether the areas annexed were only the 'city's reasonable growth', the case should be remanded for further proceedings'. In support of the latter p...