, 1875-06-22
SUPREME COURT DECISION.

REVIEW OF TIE INDIANA AVENUE ltuasE-nArr-
WAY DECISION.
TO The Editor of The Chicago Trtatne:
CHICAGO, Juno 21.-.fho Supreme Court Las
decided that tho South Bdo HolBe-Ilallway
Company Ind tic right to construct aud operate
lts railroad on Indians avenue. Tho tacts aro :
That the Common Council granted tho right ia
tho occupancy Of tho etroat upon two oonll-
hons.
FirsEThas tho consent OF two-shIrds Of tho
propcrty.oHners should bo obtained.
Secona-That tho work should ba doao within
1fteen months.
. Tho Council extended tho time, but no now
consent was obtained
Tho Court decides. frat, Tint tho proof shows
Tho proper conEeut waa obtained, aud, SECOND,
that tho Council waived tho second co,lltion.
Viz. Tue limitation aA TO tho Hmo. Three OF
tho Judges, viz: Chef-Juatice Walkex and
Justices Dreose and Bheltlon, dlssen..
Tho reasoning Of tho Court ta, that the por-
mission 70 % Occupy the , ssroet b. the Company
that the Council Ind tho right and power 10
waive tho Eccoud condition; that tho Council
tannot-lndeed no municipal authority cau--
grant franchise, and hrnco, tho Council could
satvo condition attached to tho granting Of a
tconHe.
upou what theory does tho Court dccldo that
municipal body cannon Krant lrauchieo7 7 THO
splntoo SAYS It is not franchise, because mu-
hdpal authority cannot grant . franchiso-
.encc the necessity Or callIng tt llesnso. A
franchise, as defined by Houyior, and the author.
.FYrsi-A special privilege conferred bv f,oy-
,rnment on indvlnaly, and Which does not Lo-
oug to tho satizsAs of tho country geuerally by
lonmon right
Scoad-A particular privilege couisrred by
grant from Goyosnmont and Yosted iu iudiyId-
nails.
Lot ua ace wha. the Company 40, in tho pres.
ent esso.. Tho foe Of tho stseots ot Chicago is
;he saMe for : public purposo. Tho 0snetal
Assembly granted To tho Council the slght aud
powcr TO pcrmit tha occupancy Of 1uliana ave.
nua by the Company on certain conditions,
which, being complied with: tho Company has
- Rpecfal privilege, Which dooa not boIpng TO
tho citizens Of tho country generally by CONF
mon right" clearly coming within tho
definition Of a frauchiso. by means Of thEs per-
tn!t or grant tho Company ac4nire what Is termed
BY the sscond dehuiti1n IN Bouvief, ~ particular
priy'laRen 1t il particular because u il rpeoins,
ana vested !n 10 QUE but the railroad company.
H. \ y il. sueh grant that It eauu0t 10 revoked by
"A hcones IA defined a. IN permission. A
right given by sono competent authority 10 DO
~ Act which without such authority would ba
Illegal Au authority to do particular act OF
eeIsoa OF acts op auotLet's land without possess.
ing any catats thetutn."
- ~ tAlo HistAHIu " 10 upk q EF&HEIlb0 uut ID
simply permit oonferslug no eatats, thon 1t CATS
not 10 taxed Tor : loopso Is not propesty,
and II may be interesting 10 know that
the Assessor hns nothing to do with tAeao ya!u-
abs privileges but that the logic OF 1t Is that
only tho Iron and rollipg stock eau DO taxed just
thn asua ~ II 1t wsTo not In use, fur no Que
Will claim that livenso can be taxed for 4
more !lccnsa conyaya nu property iu right.
Undoubtedly It Ii truo that municllIal corRo-
Iatlons csnnoE grant trsnohises. but tho 1.eeis-
lAtQF4 may kUpQlDt RrADCte8 In II a ia II
90 municipal bodles Rrs agsut4 Of tho state TO
ENFORCE Law. An ordinance Of tho city u reilly
htate law. Il has ali the folca Vt law, xutl
Aathoae tho prior authority OF the General Az.
ASSEMBLY authorized the city 10 grant fran
seise Leaving to tho city, a sLe agent sinp!y 10
sstesmins the time, place, apd conditions
~ eal license Or CAL 1t Kraat Of krhu-