, 1859-01-05

ture Of franchise; ri9hts sxclqsiye in thar
nature, and for period which may become per-
petua', without the consideration of dollar,
ana Which IT valid amount 70 N absolute e1tiu-
guishment OF the power Of legishAon and con.
troll vested BY the charter in the Common Coun-
Gil over 30 much Of said Streets a. Is embraced
within the terms Of said ordnance, That if Va
lid no power henceiorth e1ists in tho Common
Council to adopt or enforce any regulation with
respect to such streeta, which shail in any d.
gree shect, control or prejudice the rights grant
ed to this Company. That hereafter auy auch
regulation over subject presumed to be within
the supreme legislative control Of the Council.
would in itself be illegal aud void AZ against the
defendants.-15 B1rb. Svp. ct. &. 2l0, l. Rid
49,; D4tr 119, $50; Eernon.
3. That the ordinance in question Assumes to
create and confer nghts and privileges consti.
tutiug franchise That franchise ia an ex.
elusive privilege or right OF public nature,
vested in m individual for the enjoyment Of
some liberty or privilege no: common to the
whole people. aud can only be conferred by the
government itself, or By its e1press authority,
That no power is given to the Common Council
either expressly or By implication 70 create or
grant such privileges, BY contract or otherwise,
except In the single case Of Ferries and per.
haps "bridgea"-l7 Bdrb. Sup. 6. H. 435: 8
Du,r 1l9; I Etrnon; Anytzon corp. Sec 4. 737;
Is Ju.a. So 5 Eea: 555; 2 Back 81.
4. Tha: SAID Ordinance is also illegal. AZ in
ing respect:
The Charter provides that the Common Coua-
Gil shall have power to lieen1e, regulate aud svp.
prfs' hackmsn, draJmen, carriers, porters, omni.
bus drlrers, caomen, packers, carmen, and all
oth<7s acho may purlue hie occupations, tcith Or
E1!Aout rtAscLes and prescribe ttir eompt1sd!ton.
-Cause 2, Sec. 4, Cnao. 4.
The cara or carriages authorised By the Ordl-
nnnce IN question, are within the provisions of
his clause: Ii Barb, Sup c, R. 2l0: II Ibid
435: 5 Daer. 10; hu; BY thia .0rd1nance this
Lower to regulate, license or suppretB Is extiu-
gu'saed SO tar ~ thus company il Affected; for
" the terms of the Ordinance no power IL re-
served. to change, modify or repeal tho same.
If the Common Council should hereafter deem IT
advisable to exercise the power to regulate or
auppress.
And By the 9Th Section Of tbs Ordinance the
rate OF fare upon the cars is permanently fixed,
nud the power hereafter to further prescribe OF
Regulate the rate of compensation, q contem.
plated by this clause, not reserved, and 30 far
as this company ls concerned, is legslated away.
Ind. The Charter provides that the Common
Co4hcll shall have power to authorize the Mayor
or oter proper officer Of tue city, TO grant and is.
sue Licenses, and direct the manner OF issung and
registering thereof, and the lees TO he paid there
f"r No license shall be s7antei for more than one
year. Clause u, SECTION 10, Chapter L.
The licensing power contained in this clause
embraces tue subject mltter ualler consideration
0at ~ 1nIs Ululn1hce tile Common Council sub
vert this entire provision by assuming n effect TO
grant and Issue tile license Itself, aud Tor period
greatly exceeding that authorised by the cha.,er.
VIZ tor period Of twenty five years. in manifest
di-rcglrd vi the expless words Of tile Charter
limiting tie Hcense to one, and prescribing tie
manu:r in which licenses shal1 he granted aud i.
saed, Viz: ly lhe Mayor or othsr proper officer of
The city, Nhere power Is given TO 4 corpora
tim, aud particular meLlsoL Is prescribed in
"hcl. it shall be exercised, tie power c1unot be
legally exercised in auy other way.
5th. Thut whether rhe fee in ths
streets is in the city or not is q question
wholly immaterial; that in either case the pow
er granted to the Common Council is the same;
theT ore the mere trustees Of public easement
and their power over it is o3e of control and
government for the use Of the public at large,
and authority to farm out the same to contrac.
tors and companies is not implied within the
power. Such power can only be obtained
through express grant Of the Legislature: but
whether II may be exercised without the con.
sent OF the owneFs Of property a1ong the street,
Is mixed question Of law and fact which the
Court is not called upon 10 consider or de-
ttrmlne.-l5 Bur1 Sup. Cf. Il, aio;; II ElrI.
zS5 % DUR liz, lc0: i Htt5aon.
luIuncilon allowed.