AN ACT to amend section five (5) of an act entitled "An act to provide for the incorporation of street railroad companies," approved June 4, 1861, being section four thousand one hundred and fortyseven (4147) of the Revised Statutes of 1881. [Became a law, by lapse of time, without the governor's signature, March 5, 1891; S., 1891, p. 109.

7593. [4147] Construction of track. SEC. 1. Be it enacted by the General Assembly of the State of Indiana, That section five (5) of an act entitled "An act to provide for the incorporation of street railroad companies," approved June 4, 1861, being section four thousand one hundred and forty-seven (4147) of the Revised Statutes of 1881, of the state of Indiana, be amended to read as follows: Section 5. Such company may construct its track, switches, side tracks or turn-outs upon the streets of said cities or towns under the following conditions and restrictions: The said track shall be constructed upon the center or side of said streets, and shall conform exactly to the established grade of such street. The free passage of the streets of such city or town, occupied or used by said company, shall be impeded or obstructed by such company, only to the extent necessary for the purposes for which said company was organized. The points where such track shall intersect and cross the streets of such city or town shall be so arranged by said company as to render the crossing as passable and in as good condition as any other portion of the street. The track shall be from four to five feet in width. Every company organized under the provisions of this act and owning and operating a street railroad within any city having a population of one hundred thousand and upwards according to the last preceding United States census, shall permit the use of its track or tracks by any incorporated suburban passenger railway company, from the corporate limits of such city or town to some central point in such city or town, for the purpose of receiving and discharging passen-, gers, whenever the common council and board of aldermen, or the common council or board of trustees of any such city or town shall, by ordinance, fix such central point and grant a right of way thereto to such suburban passenger railway company upon or over any street, alley, road, bridge or public highway of such city or town now or then occupied in whole or in part by any street railway company with one or more tracks: Provided, that such use shall be upon such conditions as the common council and board of aldermen, or the common council or board of trustees of such city or town may prescribe, and upon such terms as to compensation, as

such companies may mutually agree. And, in case such companies can not agree as to such compensation within thirty days from the passage of such ordinance, then such use shall be permitted upon such terms, as to compensation, as may be fixed and determined by an action instituted by either of such companies, in the circuit court of the county in which such city or town may be situate. And, no appeal shall operate to stay the use of such track or tracks as fixed and determined in said action: And, provided, further, that the provisions of this act, shall not apply to any suburban passenger railway company whose line extends more than ten miles beyond the corporate limits of such city or town.

AN ACT concerning street railroads and the use of electricity as a motive power thereon, authorizing them to issue bonds and secure the same by mortgage, and to secure manufacturers and owners of electrical equipment in making conditional sales and certain contracts for the lease thereof and de claring an emergency. [Approved and in force March 3, 1891; S., 1891, p. 68.

7594. Electric motor, use of, when - Consent of city - County. SEC. 1. Be it enacted by the General Assembly of the State of Indiana, That any street or horse railroad [company] heretofore or hereafter organized in this state may, with the consent of the common council of the city in which such railroad or any part thereof is located and operated, and with the consent of the board of commissioners of the county where such railroad or any part thereof is operated beyond the limits of such city, use electricity for motive power: 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 such street railroad companies shall first obtain the consent of such common council for the operation by electricity of their cars along, through or across the public streets or alleys of any city before the operation by electricity of their cars shall be commenced: Provided, that in giving such consent such common council, or board of county commissioners, may do so upon such terms and conditions as they may see fit to impose.

7595. Money-Power to borrow. § 2. Any such company may, from time to time, borrow money for completing, operating or equipping its railroad, may issue and dispose of its bonds for any amount so borrowed, and may mortgage its corporate property and franchises to secure such bonds or any contract by such company.

7596. Equipment-Contract-Title in vendor, until. § 3. That in any written contract of or for the sale of electrical equipment for such street railroad, by the terms of which the purchase money, in whole or in . part, is to be paid in the future, it may be agreed that the title to the property so sold or contracted to be sold shall not pass to or vest in the vendee until the purchase money shall have been fully paid, or that the vendor shall have and retain a lien thereon for the unpaid purchase money, notwithstanding delivery thereof to and possession by the vendee.

7597. Contract of lease-Rent apply on purchase. § 4. In any written contract for the leasing or renting of such electrical equipment it shall be lawful to stipulate for a conditional sale thereof at the termination of such lease, and to stipulate that the rental received may, as paid or when paid in full, be applied and treated as purchase money, and that the title to such property shall not vest in such lessee or vendee until the purchase money shall have been paid in full, notwithstanding delivery to and possession by such lessee or vendee.

7598. Contracts-Acknowledgment-Record. § 5. Every such contract specified in sections three and four shall be good, valid and effectual, both in law and equity, against all purchasers and creditors: Provided, first, the same shall be acknowledged by the vendee or lessee before some officer authorized by law to take acknowledgments of deeds; second, such estimate shall be recorded in thirty days after such execution, in the miscellaneous record in the office of the recorder of the county in which such street railroad is located and operated.

7599. Emergency. § 6. Whereas, an emergency exists for the immediate taking effect of this act, the same shall be in force from and after its passage.

NOTES TO CHAPTER 41.

CORPORATIONS-STREET RAILWAY COMPANIES.

ARTICLE 1-IN CITIES AND TOWNS.

4154. Consent of common council. If the sovereign authority shall grant a special charter to a corporate body, to conduct a particular business, without granting any exclusive privilege over that business, the same authority may in the like manner grant other special charters to other corporations to carry on the same business; and, where there is a conflict of profits between them the first grantee has no remedy. A city, having control over its streets (§ 3161), may prescribe the motive power to be used in operating railway cars upon them. When it prescribes one kind of power the grantee of the right of use of the streets can not use another. So, in a contest between two rival companies for the possession of a street, the use of which is granted, one of which is using a motive power not authorized by its grant, the other company may assail its right to the street by showing its violation of its franchise; Ind. etc. RR. Co. v. Cit. S. RR. Co., 127-391.

A city can not give an exclusive right to a railroad company to occupy all its streets, to the exclusion of all other companies and so prevent itself from afterward giving similar grants to other companies. If, however, it makes such a grant and afterward makes a like grant to another company, that grantee which first occupies a street within the terms of the grant or which first enters on the construction of a particular line of street railway and has expended its money in the prosecution of the work, is entitled to the possession of such street, or to the streets over which such particular line passes, although the effect is that such company thus acquires the exclusive possession of such street or streets for the purposes of a street railway; Ind. etc. RR. Co. v. Cit. S. RR. Co., 127-386.

A common council has authority to license a street railway company to use a street and is not liable for the negligence of its licensee (Warsaw v. Dunlap, 112-576). Nor is the city liable for a failure to enforce its ordinances - - as where having licensed a railway user upon a street by an ordinance which specifies the manner of the use the licensee fails to conform to the ordinance (Wheeler v. Plymouth, 116-158; Dooley v. Sullivan, 112-451). Nor does a municipal corporation warrant the safety of its streets; its legal obligation is to exercise ordinary care and skill in making and keeping its streets in a reasonably safe condition for travel by persons who exercise ordinary care. Where, however, a city authorizes a railway track to be laid on a street which has been covered by planks, for the use of a street railway company, and the iron rails of the track project four inches above the planked surface, and permits it to remain in that condition, to the injury of persons using the street for travel, it is liable for its own negligence in failing to exercise the ordinary care and skill required to make and keep its streets in a reasonably safe condition for travelers; Michigan City v. Broeckling, 122-40.

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4176. Duty as to dispatches. The section as it existed prior to the passage of the statute of 1885 having been repealed by the act of 1885, telegraph companies are no longer liable to a fixed penalty of $100 for a merely negligent breach of duty either in the transmission of, or in the failure to transmit message by telegraph. Such companies are, however, liable under section 4177, which remains in force, as well as on the general principles of the common law, for special damages for failure or negligence in receiving, copying, transmitting or delivering dispatches. The primary object of this section, of 1885, was to protect the interests of the patrons of telegraph companies by preventing, so far as is reasonable, any discrimination among them. It is only those who give business to and send dispatches over the wires of a telegraph company that can rightly be called its patrons, within the meaning of the statute. In this view it is only those entitled to be considered as the patrons of such a company who are authorized to enforce the statutory penalty, when it has been incurred; Hadley v. W. U. Tel. Co., 115-199.

Where a contract for the transmitting and delivery of a message by telegraph to a point in this state is made in another state, there can be no recovery in this state of the statutory penalty, for a failure to deliver the message after it has been transmitted; Rogers v. W. Ú. Tel. Co., 122–396.

4176a. Penalty. Under this statute (1885) a telegraph company is not liable for the penalty herein prescribed, where the only wrong proved is a negligent wrong; W. U. Tel. Co. v. Jones, 116-362.

A contract is essential to create a duty. So, in order that a person may recover the statutory penalty for a breach of duty in the transmission of a telegram, a valid contract must be shown, as the contract is the foundation of the action. A telegraph company may not transact ordinary business on a Sunday. It may, however, keep its offices open for the receipt and transmission of messages where a reasonable necessity exists, such as communications designed to relieve suffering, avert harm or prevent serious loss. It follows that a contract by a telegraph company to transmit a message on Sunday is valid or invalid, owing to the reasonable necessity, or the want of it, for the transmission of the message on that day. No such necessity is shown in the case of a message which may as well be sent on any other day as on Sunday, without causing loss, harm or suffering, and a contract to transmit such a message, regarding ordinary business, which can be transacted as well on any day as on Sunday, is not within the exception to the general rule that ordinary business shall not be transacted on Sunday. Wherefore, when a complaint against a telegraph company to recover the statutory penalty, prescribed by this section, shows that the contract was made on Sunday, such complaint is fatally bad, unless the contract is shown to be valid by reason of the existence of a necessity for the making of the contract on that day and that the defendant knew of that necessity; W. U. Tel. Co. v. Yopst, 118-250.

4177. Negligence and disclosure. This section, which creates a liability on the part of telegraph companies for special damages occasioned by a neglect of duty in respect of messages delivered to them for transmission, is neither repealed or affected by the statute of 1885 (4176a), relating to telegraph and telephone companies. Wherefore, a person to whom a telegram has been sent may maintain an action under this section for the recovery of special damages resulting from a failure of a telegraph company to deliver the message. The person to whom the message is sent is not bound by the contract between the person who sends and the telegraph company, so that his failure to present his claim for damages within a given number of days limited by the contract of the sender, is no defense to such an action; W. U. Tel. Co. v. Kibben, 114-518. 4178. Delivery of dispatches. A paragraph of complaint in an action for the recovery of the statutory penalty ( 4176) for the failure of a telegraph company to deliver a message, must-in order to be good—aver, in accordance with this section,