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Mabbott v. Illinois Cent. R. Co

But the posi

after the train stopped at the depot platform. tion of the car of an eastbound train was such that an approach to it at this place was difficult, especially in wet weather; and about three weeks prior to his accident plaintiff began putting mail on and off the car when the engine stopped to take water at a tank a short distance west of the depot. It was at this last-mentioned place he was hurt. The engine had pulled up to the tank and stopped. Plaintiff wheeled his cart in close to the train. For some reason (doubtless because the engine was not in position to take water where it was first halted) it was moved forward a few feet, and it was this last movement of the train which caused the accident. The change in the place of delivering and receiving the mail was made at plaintiff's own instance, and for his convenience. The only reason he gives for making it is the difficulty of approach to the car at its usual place. He could get to it there, but not so easily or so readily as at the new place he selected. It does not appear that any one in charge of the train, or who had control of its movement, knew that plaintiff was availing himself of the stop at the water tank to deliver and receive mail. While plaintiff was not technically a trespasser, yet his rights, and the duty of defendant which arises from such rights, are not materially different from those which such a relation would confer or impose. McAllister v. Railway Co., 64 Iowa, 395, 20 N. W. 488. In all the cases where damages have been awarded for injuries caused by moving railway trains to persons in proximity to the track, the theory of liability has been predicated upon the knowledge of the situation by those who had control of the train. 2 Thomp. Neg. §§ 1841-1843. $8 It may be that the engineer and conductor of the train might have learned the use plaintiff was making of this stop, but that is not enough to impose liability on the company.

2. But aside from the matter of defendant's negligence, there is another ground of the motion to direct a verdict which we think is good, and that is that plaintiff's contributory negligence is conclusively shown. The engine had not got into position to take water when plaintiff was hurt. Plaintiff admits that he knew the engine was likely to stop sometimes in a place which would have to be changed before water could be taken. He knew, also, that the train did not stop longer than to enable the engine to get water. So he stood on this occasion with his cart near the track, ready to push in close to the train when it halted, and thus secure all the time possible for his work. As soon as the train stopped, he pushed his cart in so close that it went under the mail car. What he knew might sometimes happen occurred on this night. The engine had to be moved a few feet forward to use the tank. It was this move, as we have already said, that caused the accident. That plaintiff was negligent in placing his cart, as he did, under the edge of the car, is too

Smith v. Indianapolis St. Ry. Co

plain to invite discussion. And the proposition is equally plain that those in charge of the train were not called upon to anticipate any such situation. Even if they knew he was in the habit of delivering and receiving mail while the train stopped for water, they would have had no reason to think he would begin his operations before it had got into position. Appellant's counsel argue that the question of contributory negligence was for the jury, but that is not so unless the facts are such as would authorize different conclusions to be drawn from them. Vreeland v. Railway Co., 92 Iowa, 279, 60 N. W. 542; Sala v. Railway Co., 85 Iowa, 68, 52 N. W. 664.

The trial court was justified in directing a verdict, and the judgment is affirmed.

WEAVER, J., takes no part.

SMITH V. INDIANAPOLIS ST. RY. Co.

(Supreme Court of Indiana, April 30, 1902.)

[63 N. E. Rep. 849.]

Ejection of Passenger-Nonpayment of Street Railway Fare-Presumption That Requirement of Conductor Was Legal.

Where the complaint in an action against a street railroad company, in a city of over 100,000 population, for the ejection of a passenger for the nonpayment of fare, does not allege that the company was not acting under a contract with the city, made in pursuance of 2 Burns' Rev. St. 1901, 5458c et seq., authorizing and relating to such contracts, which would authorize the charge of an increased fare, it will be presumed that the requirement of the conductor as to the payment of the increased fare was lawful.

Fixing Street Railway Fares-Franchises-Constitutional Law-Special Privileges.

Acts 1899, p. 260 (2 Burns' Rev. St. 1901, 5458c et seq.), authorizes cities of over 100,000 to contract with an existing or future street railroad corporation, and to grant such corporation a franchise not exceeding 34 years; one of the conditions of such contract being the company's surrender of all franchises or rights to use the streets. Section 8 provides that, if no extension of the franchise of existing street railroad corporations is granted between the enactment of the statute and nine months of the expiration of the franchise, the company may remove its tracks, but that the board of public works shall open to free competition the right to so occupy the streets not less than nine months before the expiration of such franchise, and authorizes the successful bidder, if not the former occupant of the streets, to condemn the property. Section 9 provides that the contractual powers of the board of public works with reference to the use of streets are not taken away by the statute, except by contracts under it. Section 10 requires companies operating under the statute to charge certain fixed rates, which are higher than those fixed by former statutes. 2 Burns' Rev. St. 1901, 3830, gives the Indianapolis board of public works power to grant franchises to street railroads for such terms and on such conditions as it sees fit: held, that the act of 1899 is not a grant of a right to an existing Indianapolis street railway company, denied to others, by which it may charge a higher fare than other companies, in violation of Const. art. 1, 23, prohibiting the granting of special privileges or immunities, as the benefits of the act are not confined to existing corporations.

Smith v. Indianapolis St. Ry. Co

Corporations-Statute.

The statute is not in violation of Const. art. 11, 13, requiring corporations other than banking corporations to be formed under general laws, as it does not relate to the creation of corporations, but to the granting of franchises.

Same Presumptions.

It will be presumed, in an action against a street railroad corporation, that it was incorporated under Rev. St. 1881, 4143 et seq., constituting a general law for the incorporation of such companies. Street Railways-Franchises-Special Law.

Acts 1899, p. 260 (2 Burns' Rev. St. 1901, 5458c et seq.), relating to the granting of franchises to street railroad companies in cities of over 100,000, is not a local or special law, where a general law may be made applicable, in violation of Const. art. 4, % 22, requiring general laws in all cases where they are applicable, as the determination of the legislature that a general law is not applicable cannot be reviewed.

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 appel

Smith v. Indianapolis St. Ry. Co

lant's counsel. The section of the state constitution that they especially claim the act violates is the twenty-third section of article I. 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.

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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. 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 character is 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

Smith v. Indianapolis St. Ry. Co

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.

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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 conditon 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.

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