Mexico weekly ledger., 1885-09-24
HOW TO OPEN STREETS.
Opinion of City Attorney Biekley.

TO the Honorable City Council. Mexico, Mo.
Agreeable to your request of Sept.
Sd l herewith submit for your consid-
Grafton my views as to the conse-
quences and effects, so far as the
rights of the city are concerned, Of
allowing persons to fence up and oc-
cupy for private purposes the streets
and alleys of this city.
In order that we may fully under
stand the public nature of streets in
incorporated towns, and the interest
and rights that each and every per-
son as an individual part of the pub
he may hav' IL such streets, 1 will
cite a few paragraphs from Judge
Dillon's work on "Municipal Corpo-
rations:' -
''Public streets, squares and COM
mons, unless there be some special
restriction when dedicated or ac-
qulred, are for the public use, and the
use is none the less for the public at
large as distinguished from the mu-
nlclpality, because they are situate
within the limits of the latter and be-
cause the legislature may have given
supervision and control of them to
the local authorities, The legisla-
ture of the state represents the public
at large and has full and paramount
authority over all public ways and
Places
1.-The king cannot license the erec-
ton or commission of a nuisance"
nor in this country can q municipal
corporation do SO by virtue of any
implied or general powers. A build
ing or other structure of like ma
ture erected upon a street without
the sanction of the legislature is a
nuisance, and the local corporate
authorities of a place cannot give a
valid permission thus to occupy
streets, without express power to
this end conferred upon them by
charter Or statutes
"The authority of municipalities
over streets they derive as they de-
rive all their other powers, from the
legislature-from charter or statute
The fundamental idea of street is
not only that it is public, but public
for all purposes, of free and unob
structed passage. DILLON on Mu
nicipal Corporations, Sections SIS
I520, 521 and 542.
The city having no right to us'
streets for any purpose other than al
public highways, (there being nom
other granted under the charter) {
lease or other form of contract O.
agreement permitting them to b.
used for any other purpose would b.
void, and recording an invalid con
tract in the office of the recorder o
deeds for Audrain county will no
impart to it validity. Hence, tn
contract being nullity, would it no
necessarily follow that as far as it
being a protection to the city is con
cerned,, it might just as well hav
never been written or recorded?
1 very much doubt whether tn
city would be allowed to set up tn
negligence of it's own officers as de
fense to the plea, that by non-usag
for certain length of time the cit,
had lost its rights to the streets ant
highways; especially so after valuabl
private interests had attached.
When public officers become indii
ferent to the public's interest tn
= people are of necessity bound to sui
fer. The negligence of the cit
would be invoked against it just a
readily and effectually as in the cas-
, of an individual.
There are few of US who do nc
appreciate the great advantage on
person enjoys over another. Espe
cially is this true in reference to res
property. Every person is vigilar
: and jealous regarding his or her ow
: interest, taking advantage of Other
when their rights are slept on.
How, then, can the interest of th
city of Mexico be best subserved
this matter? Only by ordering a
street Instructions removed, theret
placing the city upon ground that
:. absolutely safe and unquestionabl
Looking at the public interest onl
y why should the city be asked to stan
=, upon debatable ground when it is S
. much easier to occupy where MOI
. will question your right to stand!
. The public as q whole and each il
dividual thereof has the absolu
right to travel and enjoy the fir
- use of any and all streets and higl
- =, ways, either for business or pleasur
the streets that are fenced up as We
, as those that remain open and uno
=: structed; and neither the city NJ
any other agency Or person, exec
the legislature, has the power in al
way to abridge the rights of the pu
lie. No matter how convenient ar
= profitable it may be to individua
;, who reap the benefits that arise
reason of the maintenance of SUI
obstructions, or how little, seemingl
the public convenience may be inte
d fered with. These are questions th
r. are not to be entertained. That 81
j. of the case is not under consider
.. s.4, - ba