St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1889-07-20
A JUDICIAL OPINION.
The City Attorney Gives the Weak
Kneed q Boost.

Inc CITY attorney, whose opinion Hdu
been asked by the council on the legal
right of the council to pass the Ander-
son & Douglas ordinance, last night re-
ported as follows, giving them in his
opinion clear right to do SO.
Gentlemen: In response to request em+
bodied In motion passed by your body on
the 9th of July, 1888, have carefully exam
ined the ordinance granting MeSsrs. Ander-
son & Douglas the right to occupy certain
streets of this city with tracks for the running
of cable and electric cars thereon, for the
purpose of determining its legality and the
right of the council to pass the same. In my
opinion there is no legal objection to the
form Of the ordinance as amended, and there
is no legal obstacle TO the granting of the
right asked for and provided in the Ordl-
nance. have considered the particular pur-
pose Of your request to be the securing of an
opinion as 20 the right to pass this ordi-
nance in view OF the rights heretofore granted
the Minneapolis Street Railway company, by
an ordinance passed July II, 1873, and the
several ordinances amendatory thereof; in
other words, to determine whether the OTdl-
nance before you and the grant included
therein, is in conflict with the contract now
existing between the city and the Minneap-
oils Street Railway company, as created by
the ordinance of July II, 1873. This ques-
ton must be determined by q comparison OF
what is now asked with what is contained
in the existing ordinance. The Anderson d
DOuRldS dSkS IOr IuG TlSul W
crate cars on the streets named therein, to be
propelled by cable or electric power. The
ordinance TO the Minneapolis Street Railway
company by its first section grants the eXclu-
s1ve right to that company to construct and
operate passenger railway lines in such
streets OF the city as the city council may
deem suited to street railways, subject to the
terms. conditions and fOrfeitureS in the
other sections of said ordinance contained.
The fourth section of the ordinance creates
Ifaf ,.Nraa
OF the first; that section provides that the
cars to be used upon such tracks shall be pro
PEELED with either animal or pneumatic pow
er, as the said company may deem advisable"
In determining, however, whether this pro-
vision IN section is G limitation on the eX-
elusive grant contained in section 1 we are
not confined to the conditions expressed i'll
section l, but there are certain well-eStaD-
lished principles Of construction OF such
grants as this which should be applied here.
These principles are;
First-The whole ordinance must be con-
sidered, and all the sections construed to-
gether.
Sccond-Grants OF franchises by public
corporations to individuals or private corpor-
atoms are to be strictly construed, and no
privilege passes unless it be conferred by
express words.
Third-Such grants are to be construct
most strongly against the grantee and i'll IA
vOr of the public. Applying these princi-
ions, 1t is my opinion that the exclusive
right and privilege is only granted to the use
of streets for cars to be propelled by animal
or pneumatic power and that it does not
grant the Minneapolis Street Railway COM
pany the right to occupy the streets for the
use of cars to be propelled by any other
power; that if any other power is to be
used 1t would require further grant from
the council. Under this ordinance the cOun
Gil could not demand the use of any other
POWERS than the two named and if ii has not
this right the company certainly acquired no
right to use any other power than those
named iii the ordinance. This view is sus-
tanned by several recent cases where the
courts have passed upon similar grants.
Without consuming your time with a re-
view of the numerous authorities which
1 have examined, ] desire to call your
attention to one contained In a de-
case of Teachout VS.. The Des Moines Broad
Gauge Street Railway Company, reported in
the 3Sth Northwestern Reporter. page 145.
The city attorney quotes from the ordinance
in this case as follows:
1.-The cars to be used upon such tracks
shall be operated with auimal power only
and from the decision this: 1T (the railway
company has the exclusive right to operate
its railways by animal power, and it has no
more right to interpose objection to the
building and operating of other street rail
roads to be operated by other power than as
if no grant had ever been made to it,
The city attorney also refers to the
case of The Omaha Horse Car Company
VS.. the Cable and Tramway Company,
reported in the Thirtieth Federal Re
porter, page 1924, and concludes as fol-
lows:
'In the light of these legal principles and
decisions, you have the legal right to pass an
ordinance granting the right to the use of
streets for passenger cars to be propelled by
power other than horse or pneumatic if you
see tit so to do.''