172 Ind. 279 | Ind. | 1909
Appellants brought this suit to have certain franchise ordinances decreed null and void, and to enjoin the carrying out of their provisions and the levying of taxes for such purposes. The complaint was held insufficient upon demurrer, and appellants declining to amend, final judgment was rendered in favor of appellees. Errors have been properly assigned on the sustaining of appellees’ demurrers.
The complaint alleged, in substance, that appellants are resident taxpayers of the incorporated town of Greenwood; that on September 4, 1905, the board of trustees of said town duly adopted an ordinance, No. 92, granting to James A. Craig and John W. Henderson, for a term of fifty years, the right and privilege of erecting poles, wires and appliances
It is further alleged that on September 13, 1905, the grantees, Craig and Henderson, duly filed in the office of the clerk their written acceptances of the provisions of said ordinances, and on September 27, 1905, said grantees filed in the clerk’s office an assignment in writing, whereby they transferred all their right, title and interest in and to said franchise and ordinances to appellee Citizens Water and Light Company; that on March 4, 1907, said board of trustees passed ordinance No. 100, contracting with said water and light company for certain electric street lights for the term of twenty years, and for certain fire hydrants for the term of twenty-five years, and providing for the collection of taxes for the purpose of paying the stipulated light and water rentals, which ordinance was duly accepted by said appellee company. It was specifically alleged: (1) That the board of town trustees had no power or authority to grant franchises for the purposes named, for a term exceeding twenty-five years, and that the ordinances purporting to grant such franchises for fifty years are ultra vires and void;
The franchise ordinances attacked were passed in pursuance of the authority conferred by §253 of the act of 1905
Section 8938, supra, deals with a different phase of the subject. Its provisions do not involve the public treasury, but merely authorize the town to grant the use of its public, highways and places for the public purposes specified upon such terms and conditions as it may see fit to prescribe. The formal acceptance by the grantee of the grant upon the terms affixed constitutes a contract, having in view on the one hand the promotion of public convenience and welfare, and on the other the profitable investment of private capital. In enacting ordinances under §8938, supra, the freedom of the town from obligation to render financial assistance may be compensated by granting a longer term franchise. At all events the legislature has not imposed any definite limit upon the term of the franchise to use the public ways and places which the city or town is authorized to grant. This was the province of the legislature, and that department not having deemed it necessary to limit the term of such franchises, we are not warranted in inserting such limitation by mere construction, when the statute is so clear as not to be open to construction, The complaint is grounded upon the proposi
The judgment is affirmed.