Idaho semi-weekly world. [volume] (Idaho City, Idaho Territory) 1875-1908, 1882-02-17


public lands Of the United States, but on
~ IN cases where the applicants have the
right of soil, the consent Of the owners
thereof, or the right of way; nor is such
intention manifested elsewhere in the ActI
unless it is to be implied from section 12,
which provides that "All grants of char
ters or franchises, by virtue OF this Act.
to individuals or companies, to construct
roads and trails, shall include the right of
way over the lands, water courses, or prem
lses, SO far as the same may be necessary
to enable the party or parties receiving
such charter, franchise, or grant, to carry
into effect the purposes and objects Of such
charter, franchise, or grant; provided, the
same shall in no case conflict with the
vested rights Of others.n
In subsequent supplementary Act, ap-
proved January II, 1866. the legislative
power seems to have removed any doubts
that might exist upon that point, for it is,
by the Act last mentioned, provided that
"The Boards of County Commissioners oil
the respective counties in this Territory
are authorized and empowered by this
Act, upon application made to them in
accordance with the provisions of the Act
to which this Act is supplementary, to
grant unto said applicant an exclusive
right OF way over Or across any part of
their respective counties; provided, said
right of way does not interfere with prior
vested rights of others; and said exclusive
light of way shall not exceed one mile on
each side of the line Of road or trail, EN-
braced in said right of way, aud said right
of way shall not be granted for longer
term than eight years"
Notwithstanding this grant or delega-
ton of power by the Legislative Assembly
of the Territory to the Boards of County
Commissioners of the several counties, it
will be seen from the statutes of the Terri
tory down to and including those of the
fourth session, that numerous charters
and privileges to keep aud maintain toll
roads, bridges, and ferries were granted
| by the Legislature directly; indeed, to
such extent was Il is power exercised that
Congress interposed, and by Act, approved
March 2, 1867, it provided THAT the Leg
ries shall not grant private charters, or es-
pecial privileges, but they may by general
incorporation Act permit persons to asso-
ciate themselves together as bodies corpo-
rate, for mining, manufacturing, and 9TH
er industrial pursuits, or the construction
or operation of railroads, wagon roads, IT.
risating bitches and the colonization and
improvement of lands in connection
Herewith, or for colleges, seminaries,
churches, libraries, or any benevolent,
charitable, or scientific association
In this Act of Congress the Legislature
of the Territory was divested of the power
to grant private charters or especial privi-
leges, TO build, keep, or maintain toll
roads, ferries, or bridges, or tor any other
purposes, and a new and different pro
ceeding to organize for such purposes was
prescribed, namely, under general incor
poration laws Since the passage OF the
Act of Congress above referred TO, the
Legislative Assembly of this Territory has
not attempted to pass any Act in contra
!, vention of its prohibition, that l am
aware of; nor will it be claimed that II
: might lawfully do so.
There can be no doubt that when the
authority of the Legislature to grant char
) ters and franchises by direct means ceased
all power in the Boards of County Com
: missioners to do the same things, indl
rectly and by virtue OF delegated author
ity ceased also, and the law of December
20. 1864, was, by implication, repealed.
, 1t is a familiar principle in law, tha
what person or body may not do I'll
, rectly it may not do indirectly, that what
may not be done by the principal may
, not be done by an agent, that when tilt
! authority of the principal ceases that o.
= the apent. attorney, or representative ends
Win such cessation This principle is
annlirable TO the question in this case
and applying it, we must hoia tha' nellhei
/ the LEGISLATURE or the Board OF County
Commissioners have had any lawful pow
er 10 grant charters or licenses 10 toil
roads since March 2, 1867. IL loiloWs
: that it is not the duty, nor IS II witilih III,
newer of the Board of Commissioners OF
Il. Owvhee county TO TX the amount Oh ooho
N effectuate the issuance OF license to
: the netitioner upon former order OF the
/; Board illegally granting the same.
I, ;s unnecessary 10 notice any Other