, 1875-06-20


b.nd h. n the subject, and oeing derived from the
crowp must arse from the Rings grant, Blsckstons,
i, Corporate franchises in tho AneftcAn States
ern,nata from the Goyernmant or tho sovereign
nover owe their existence to grant, or IL at common
INV. to prescription which ptesupposes grant. and
arc vested IN natrlduals Of noay M ponsf, rSf. os.
within no definition Of franchise. Besides munich
pel body 1t il underssood possesses no power to con-
BEING MERE LICENSE
,caar tha franchises conferred by the 6tate to the
Railway Company to construct its road within given
period ground over wntce ne cy nsa 81 etgu M
condition. M to tine. The license granted by the
ORDINANCES is no more \ franchise than would BE-
grant o tho ssa. o1 " bis snao - snd
is al competent for the city as for the private to
extend the t1ne OF performance or to amend. modify,
II a said ths ordinance Of Nov. 49, 1871 purports to
crant special privileges" or "frsnchises," and Ia
yo1p rspER TIE CONSTITUTION.
Ia mn have before SEEM there Ia Suthorty for tho
as.unaption the uoense TO the Railway Company to
construct ita road Indiana avenue Is franchise
Herein consists the vice Of the whole argument on this
hranch Of the case 1t most it was but nera license.
and comes within no definition Of franch18e, nor
does It e1nanatero any source competent to grant
franchise But more thsn .his # t doea no5 PurpeTt to
pany That would czeiude lks grant to any
other Company that esaed competent authority to
cnnRtruct railH1y upon that street.
AZ w. Sec a. OF tho Constitution Of 1870, cited,
ia limitation upon tho power of the Generl Assem-
bly, grant any corpoEshon association, or indIsid-
uai the Hght to ~ Gown t H. a
ton can 1t be said to be limitation upon municipal
corporation to designate certain streets and ~ the
under special charter previously gsnnte1, OF under
general law since the adoption Of the Consultation.
might iay it, track II 10 In1suocepoa VI sns NV
to suppose tho Halfway company Getsee at po"et 10
construct railroad trom aa5 otan5ace os sas s1,.
All its authority is from the State and 10 conferred by
Its chartez ms ty M ~ @ 10
say in what manner ana upot naa' eo:!ats'o1a ta
Company may exercise tae Goa1efreo y ae
State, bnt nothing nose ane M as sne ea!y IN
ths ssgt es %g5 anS the ersnnx I The GEN.
eTa1 Assembly o1 my sEee'ot ot etaustte
privileges Immunity or 1raneeass Is N
tue Of tae sats 70 M esoo and
which We refrain from expressing sny opinion. 1t is
sufficient It has not neen aone oy ny tae
IeasIstnre. Accordingly vs. are Of opinion the Or
dinance Of Nov 49, 1871, araendatory of the former
o'd'qsnee, ~ Se,rn Avn . WAIVER or THE CONDITION
as to the completion Of tho road to the city limits
within the period i1ed By the arst ordinance courts
proceed Win gfest II ,echaa
Itf 70 sns1r Of tho couo u,
tha 1T Of incorporation or every misuser h.t win tor
to the intent o1 the chnrter il ali that reqnirei Pee
pic vs.. Kingston Middleton T. r., p Wendell ~ "
People Fa Bristol TnEnpaae company. - "elae' -
nos ets ~ r. - ,ha n,itwav Cau,s
p4ny misuser that would forfeit its
The non;pertozmance insisted upon Is as 70
ne sonaon s 4a tiIns IN %Pfe tns
r.iIraad ~, indian, aTenno should BE- constructed
to tho cttg umits. There w1.s 4 part perfor1nance
The city reserved the rght In the public inter-
required any of the lines to be constructed, to
compel the completion 81 tue same w1tnn ninety aays
4 sid no saen n}oncuon nRo9 H. ao .s 3:y n
IN Ine ~ ~ ~, nrtua4cs ~ crntiv. n i'm cb,rac
tar nn1arrrd {hs rfohts oY ths Company On fndiana
ayanue during the time provided In the ordinance.
For The reasons tndicated the demurrer to the
ond rejoinder setting up tho ordinance Of Nov. l3,
1871. should have oeen oyerfated' and Judgment ,
snaulo nave 9Hns .oe arG -.rsa "
2uasaaeat TGss.as.,t .~1a..o5 W. "o0 00 ~'1~0 ~s'@'
'.1.,, ,,,,,4,.,r,+.
~ o40'A' 4.1'-,1e'
.Cne1-Jusrfce Ha1ke1 aoo JUDGES oseeze ond
Sheldon dssentod, and the latter filed dissent
ing oo,rion. in which the other two concurred,
ta,d:. 49, tha r~,;;n.,.o ~ ~, co,,n,cr f1oc,.
n,'o5 11,. - = ,,l,.1 ~ 49, 49, - ,o.+
ch OF the c'tJ OF onicaEo' Passeo Sof' 1o' 4o'A'
WAS Invalid This act extended the time
limited for the construction OF the rail-
road On Indiana avenue: for two years
from Nov. l9, 1871. After restating the
facts Of the case. Judge Sheldon said tl,at the
ordinance OF No7, IS, 1871 purportod to be
a.aeudatory to that OF Aug 21, 1864, and az
tended the time Of the completion OF the road
on Indiana avenue for the term Of two years
from the passage Of the ordinance. But, since
the adoption Of the Constitution Of 1870, the
Common Council. tho Judge held, had no