Smith v. Indianapolis St. Ry. Co.

• Decision Date: 30 April 1902
• Citation: 158 Ind. 425,63 N.E. 849
• Parties: SMITH v. INDIANAPOLIS ST. RY. CO.
• Court: Indiana Supreme Court

158 Ind. 425

63 N.E. 849

SMITH

v.INDIANAPOLIS ST. RY. CO.

Supreme Court of Indiana.

April 30, 1902.

Appeal from superior court, Marion county; James M. Leathers, Judge.

Action by Charles F. Smith against the Indianapolis Street Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.Burk & Warrum and Albert Schoonover, for appellant. F. Winter and S. A. Pickens, for appellee

GILLETT, J.

The appellant filed a complaint in the court below, charging, in substance, that on the 5th day of May, 1899, the appellee was a street railroad corporation, organized under the laws of this state, and was then engaged in operating an electric street railroad upon the streets of the city of Indianapolis; that on said day appellant entered one of appellee's street cars so operated, for the purpose of being conveyed therein as a passenger; that appellee tendered 3 cents, as his fare, to the conductor of said car, but that the latter refused to receive the same, and demanded that appellant should pay a fare of 5 cents, or surrender a ticket that the company sold at the rate of 6 tickets for 25 cents, or 25 tickets for $1; that appellant refused so to do, and was ejected by the conductor from said car, to appellant's damage, etc. Appellee demurred to this complaint. Its demurrer was sustained. Appellant excepted to the ruling, and assigns error thereon in this court.

Appellant's counsel state in their brief: “The real question-the entire question before the court-may be said to be the constitutionality of the act of 1899, under which appellee claims the right to charge more than 3 cents for a fare. If this act is constitutional, we do not and cannot claim any right of recovery against appellee.” As the complaint in this case does not allege that the appellee was not acting under a contract made with such city pursuant to Acts 1899, p. 260 (section 5458c et seq. 2 Burns' Rev. St. 1901), it must be presumed that the requirement of appellee's conductor was lawful, unless said act is unconstitutional, as claimed by appellant's counsel. The section of the state constitution that they especially claim the act violates is the twenty-third section of article 1. That section is as follows: “The general assembly shall not grant to any citizen, or class of citizens, privileges and immunities which, upon the same terms, shall not equally belong to all citizens.”

Before further discussing the law applicable to this particular case, we announce certain propositions, upon which the authorities do not divide: (1) Every ultimate, reasonable doubt as to the validity of a statute is to be solved in its favor. “It is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts considered as void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.” Marshall, C. J., in Fletcher v. Peck, 6 Cranch, 87, 128, 3 L. Ed. 162. (2) If a statute is within the legislative power, the court cannot set up its judgment as to whether the power has been wisely or unwisely exercised. It is its duty in such cases not to obstruct, but to enforce, the legislative will. (3) If an act admits of two interpretations, one of which will bring it within, and the other presses it beyond, the constitutional authority of the general assembly, that interpretation will be adopted which will make it possible to uphold the act, because a presumption will not be indulged that the lawmaking power intended to violate the fundamental law, unless that conclusion is forced upon the court by unambiguous language. As said by Harris, J., speaking for the court, in People v. Supervisors of Orange Co., 17 N. Y. 235, 241, “Before proceeding to annul by judicial sentence what has been enacted by the lawmaking power, it should clearly appear that the act cannot be supported by any reasonable intendment or allowable presumption.”

Counsel for appellant say: “We do not deny the power of the legislature to authorize a grant that must of necessity be monopolistic in its nature; otherwise railway franchises could not be granted at all.” It is, of course, competent for the general assembly to make provision by law whereby, in the grant of a street railroad franchise, there may pass with the grant the exclusive right of the grantee to operate cars over the particular space occupied by its tracks during the existence of the franchise; otherwise the grant might be of little or no value. But the conclusion of counsel for appellant that the law in question is of a monopolistic characteris based on the assumption that it was so framed that only the appellee company could obtain the franchise that the act purported to authorize the city to grant. Appellant's counsel state that the appellee was incorporated subsequent to the year 1890, and that, at the time of the enactment of the act of 1899, appellee was operating under a franchise that it had been held by the supreme court of the United States would expire on January 18, 1901. Of course, we are not judicially advised of this; but as the act in question, in its earlier sections, seems to assume the existence of a street car franchise, held under said city, that was soon to expire, we are content, for the purposes of this opinion, to assume the existence of the facts so stated.

The act is a very long one, and it would greatly prolong this opinion to state all of the provisions in detail. In substance, the act provides that it “may be lawful” for any city having a population in excess of 100,000 persons by the last federal census preceding the incorporation of “any street railroad company, now or hereafter organized,” to enter into a contract with said company for the granting to said company of a franchise for a term not exceeding 34 years, subject to many conditions, relative to compensation, fares, paving, the use of its lines by suburban and interurban railroad companies, the right of control of the city, etc. One condition that should be mentioned is as follows: “As a part of any contract entered into pursuant to the provisions of this act, and as a part of the consideration therefor, the company entering into said contract shall first make an absolute surrender to such city of all franchises and rights to the use and occupancy of the streets, alleys and public places of such city owned, held or claimed by such company within the corporate limits of such city at the time of the making of such contract pursuant to the provisions of this act, or theretofore owned, held or claimed by such company.” Section 8 of the act provides that where the use or occupancy of any streets shall be had by any street railroad company under any ordinance or contract fixing or limiting, or attempting to fix or limit, the time of such occupancy, then, if no extension has been granted between the date of the enactment of the statute and a date nine months before the date of the termination of said right, and if no other company has acquired the franchise and property by contract with said company and the city, the right of said company to occupy the streets shall, at the expiration of the time so fixed or attempted to be fixed, absolutely expire, and the company is then authorized to remove its tracks, etc. It is further provided by said section that, not later than nine months before said time expires, such city, through its board of public works, shall “open to free competition the further occupancy for a period not exceeding thirty years of the streets of such city,” subject to the conditions and limitations of section 2 of the act, and that “in such competition no company now or hereafter organized for such purpose shall be excluded.” If the occupying company is not the successful bidder, and elects not to remove its tracks, etc., then provision is made that the company that is successful in the competition may institute proceedings to condemn such property. Section 9 is especially important, and therefore we quote it in full: “Nothing contained in this act shall be so construed as to take away from the board of public works and common council of any such city the exclusive powers now exercised over the streets, highways, alleys and bridges within such city, or the rights and powers now possessed by such board of public works and common council to enter into contract with reference to the use of the streets, alleys and public places in such city for street railroad purposes, except in so far as such powers and rights shall be affected by contracts entered into pursuant to the provisions of this act, and except as such powers are reserved to such city by the provisions of this act.” Section 10 of the act is as follows: “It shall be unlawful for any railroad company operating under a contract secured under the provisions of this act or an employé of the same, to charge or receive any greater amount for fares than that provided for in this act, and it shall be unlawful to fail or refuse to keep on sale tickets as provided in this act, and anyone violating any of the provisions of this section, shall be fined in any sum not to exceed one hundred dollars.” Section 59 of the Indianapolis charter (2 Burns' Rev. St. 1901, § 3830) provides, among other things, that the board of public works of said city is granted the right, subject to the approval of the common council, “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 patrons.”

Section 9 (Act 1899), that we have quoted above, when subjected to proper interpretation and construction, is broad enough to authorize the statement that it gave...