The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1881-07-14

The mayor after a careful consideration
of the subject and consulting with City Att
torney Johns, who rendered the following
official opinion, has signed the ordinance
granting privileges and right-of-way
through the streets of Austin to the Capt.
tai Gas Light company. The matter Will
now probably be carried into the courts.
but it is hoped by all it viii he settled
without resorting to expensive suits, and
both companies work harmonlously:
AUSTIN, TEXAS, July IL, 1881.
Hon L. NJ Crooker, Mayor of the CT Y of |
Austin:
DEAR SIR-In answer to your question I
rs to the validity and effect of the OrdI- |
nance passed by our city council, July 9, |
1881, granting 20 Francis B. Forster and |
his associates. the right to establish, OPP
crate and maintain gas works within this !
city and the use of the streets for the pur- |
pose of laying gas pipes. L beg leave 10
submit the following:
on November 8, 1878, the city council
passed an ordinance granting to sylvester
Watts, of st. Louis, Missouri, his asso-
ciates, assigns or successors, the eTetHslye
privilege to erect, operate or malntaln
gas works within the limits of the city OF
Austin and the additions thereto aHd the
4 eccIusire right and privilege for laying
\ gas pipes within the limits of said cay.
4 The city council having the power by Vie
i tue of the city charter ':to construct gas
4 works. the only question that arises is
this: Did the city by passing the ordi-
! nance of 1873 (which is still in fun
4 force and effect diyest itself of the
right and power to pass the ordinance
| now in question? In my opinion. the city
did not As the business of manufuctur-
ing and selling gas is an ordinary and
usu,i business, like the manufacture of
Z any other article of trade, in respect to
| which the government has no exclusive
| prerOSative, so far as the restrictions on
| other nefsons from using the streets FOR
the purpose of distributing gas by means
| OF pipes, can be fairly viewed, as in
| tended TO operate rs Il restriction upon its
free manufacture and sale, it comes d.
| rectly within the definition and descrip-
ton of monopoly and that portion OF
the ordinance of 1873, which undertakes
10 grant to any one the exclusive priv
ilege of using the streets for the purpose
of laying gas pipes as well as that portion
undertaking to give the exclusive right
"to erect, operate or maintain" gas
works within the city limits, is unconsti-
tutional, null and void. The constitution
then in force anG the present one, ex-
pressly states that "perpetuities and
monopolies are contrary to the
genius of free government and
shall never be allowed" Even in
some of the states where there was 10
direct constitutional provision against
mOnOpOlies, yet upon the idea that the
whole theory of every free government
is opposed to such grants. it has been de-
| cided, that neither the state Legislature
nor a municipality can contract TO create
monopoly. But had it been IN the
power of the legislature. land it was not),
to make such a grant, it certainly con-
ferred no such power upon the city OF
| Austin.
1t is true that the charter says ''the
| ma hoard of alHarnnan Gban have
the power to construct gas works ; to pro
vide the city with gas; to erect the nee
essary machinery, lamps, posts, etc., FOL
the lighting of the streets, and erecting
lamps thereon" But such general powers
while they carry with them by implica
ton all such powers as are clearly nee
, | essary for the proper and convenient
exclusive of the authority expressly con
ferred. do not authorize the city council
to grant to any person or corporation, tn
/, exclusive right to use the streets OF thu
, city for the purpose of laying down ga
/ pipes, or the exclusive right to operate
gas works for term of years.
a Under such provisions the eounci
: would be authorized to contract for gas
lamp posts, ETC., and to grant the con
tracing party the use of the streets, blu
: not the exclusive use.
| In fact, the act of the city council il
/ that respect, was only license which
! would protect the gas company against
= prosecution for public nuisance for dig
ging UP the streets in order to lay dow
/ its gas pipes.
When municipal government, which
is presumed to be created for the GOO
/, and convenience of society, is permitted
? to give or barter away its Legislative pow
I ers, so as to fasten upon the people sucl
I OnerOus burdens as au exclusive priv
= lege of this character will lnevitabl.
carry with it directly or indirectly, thel
+ it becomes an evil which would justif.
almost any act on the part of the citizens
. | for Redistribution.
There are several other reasons which
! might state going to show that the ordi
I nance passed July 6, 1881, was done b.
/. authority of law, but l do not deem i
, necessary to refer to them at this time.
Most respectfully your obd't serv't,
CD. JOHNS, City Attorney.