1906-1908 Ind. Op. Att'y Gen. p. 180b

EPILEPTICS, VILLAGE FOR-TRUSTEES HOLD OFFICE. May 14, 1907. Hon. Enoch G. Hogate, Secretary Board of Trustees Indiana Vil- lage for Epileptics, Newcastle, Indiana: Dear Sir-Replying to yours of the 10th inst., in which you state that Mr. Charles L. Henry was appointed trustee of the Village for Epileptics on March 15, 1906, for a term of two years ; that his term expired in March, 1907, and no successor has been 4ippointed by the governor. You ask whether Mr. Henry holds his office as trustee under his former appointment until his suc- cessor is elected and qualified. My opinion is that he does. The constitution of the state pro- vides as follows (Burns' Stats. 1901, §225): "Whenever it is provided in this constitution, or in any law which may be hereafter passed, that any officer, other than a member of the general assembly, shall hold his of- fice for any given term, the same shall be construed to mean that such officer shall hold his office for such term and until his successor shall have been elected and qualified." RAILROADS-LAW OF 1907, LIMITING CHARGE MADE BY RAILROADS DOES NOT REFER TO ELECTRIC, IN- TERURBAN OR STREET RAILWAYS. May 14, 1907. Railroad Commission of the State of Indiana: Gentlemen-I am in receipt of inqLiries asking whether the act of the last general assembly, appearing on page 62 of the acts with reference to limiting the charge which may be made for the transportation of passengers by any corporation, firm or individual owning or operating a railroad in whole or in part within this state, and providing for the transportation of bag- gage, applies to interurban railways. These inquiries I referred to your Commission and they were again by your commission referred to me for my official opinion. I therefore take the liberty of addressing this official opinion to the commission, and, with your permission, I am forwarding copies of the same to the persons making these inquiries. The act authorizing the organization of interurban railway companies is an entirely different act from that under which steam railways are organized, and is complete within itself. In- terurban railways are not recognized by our supreme court as being in a strict sense railways within the meaning of the gen- eral railroad law of the state, whiCh authorizes the organization of steam railroads. In the case of Wabash Railroad Company v. Ft. Wayne & Southwestern Traction Company, reported in 161 Ind. 295, see page 310 for reasoning, the interurban or electric railway com- pany sought to cross the right of way of a steam railroad com- pany, and our supreme court, in discussing the rights of the parties thereto, said, on the last-named page: "Section 5158a Burns'1901, of the general railroad law, does not apply to street or interurban electric railroads, but the latter are governed in proceedings to acquire a right to cross another railroad by section 5468e Burns' 1901 (Acts 1901, p. 461, §5). By the later enactment, which applies expressly to interurban and street railroads., the manner of such crossing is to be determined by the commissioners appointed by the court upon the filing of the instrument of appropriation:" Our supreme court, in passing upon the rights of interurban and steam railroads, with reference to occupying streets of towns and cities, has taken the position that such, occupation by such interurban railroad is not an additional servitude; while exactly the contrary has been held with reference to steam railroads; and, while, in my opinion, the distinction made by our supreme court in this particular is of very doubtful propriety, at the same time it is evidence of the distinction made by our courts between the two classes of railroads. By section 5153a Burns' Annotated Indiana Statutes (Supple- ment of 1905), provision is made for any railroad company here- tofore or hereafter organized under the general railroad laws of the state of Indiana, operating or intending to operate as an inter- urban, electric or street railroad, which shall desire to avail itself of the privileges and powers, and subject itself to the duties, obli- gations and liabilities of interurban, electric or street railway companies organized under the laws of the state of Indiana relat- ing thereto, to effect a change from a steam railroad to that of an interurban, electric or street railway company, and said section contains a proviso that nothing therein shall be construed so as to permit either company to operate as both a steam railroad and an interurban, electric or street railway. Thus, railroads are expressly prohibited from operating as both steam and interurban railroads, and there appears to be only one instance in which the same statute is made to apply to both classes of railroads, and that is the case of section 5340a, which relates to public aid to railroads and interurbans, and is an amendment of the original act relating to public aid to rail- roads, in such manner as to extend it in its operation to interur- ban railroads, and the very fact that the general assembly deemed it necessary to amend the original act to extend it to interurban railroads is evidence again that the interurban railroad belongs to another and different class from that of the ordinary steam railroad. The purpose of the act in question was to reduce passenger rates, and it is is a notorious fact that passenger rates on inter- urban railroads were, at the time of the passage of the act in question, almost without exception, below the passenger rate named in the act, to wit: two cents; and it is quite evident that the legislation was not enacted with reference to rates that were already below, or at least not in excess of, the maximum rate named, while, on the other hand, the steam railroads in the state of Indiana were universally charging a passenger rate of three cents per mile. Q It is a part of the history of this legislation that amendments to the bill were offered at the time when it was on its passage and under discussion in the general assembly, by which it was sought to extend the same to interurban railroads and limit the passen- ger rate of such interurban railroads to one cent per mile, and these amendments were defeated upon the theory that the act should not be made to extend to interurban railroads; and it is also a matter of common knowledge that interurban railroads are able to operate at a much less expense than steam railroads, and to carry passengers at a lower rate per mile than can steam railroads, and it is in view of these facts that the interurban rail- roads have been enabled to give the cheap passenger rate which has made them such popular thoroughfares for local travel. It is therefore my opinion that the act in question has no refer- ence to the interurban, electric or street railways of the state.