St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1889-09-07
Is On in the Courts, With
Heavy Metal ON Both
Sides.
A Claim OF Unconstitutional
ity Of the Original Leg
islation
Made by the City, While the
Defense Relies on the
Statute.


concern were Ii. j. Horn, John NJ. Gilman
and C. E. Flandrau. and the lawyers en-
ployed in disputing their statements were
Edward G. Rogers, John B. Sanborn. o. A.
Holman and Emerson Hadley. 1t was truly
battle of the giants-legal giants. Judges
SimOns. Kelly and Kerr heard the arguments,
and they will jointly decide the important
case.
II. ]. Horn opened the argument for the
defendant corporation. He devoted most of
his time to reiterating the points
raised in the answer to the complaint
He stated that the validity of the ST. Paul
City Railway COMPANY franchises was based
upon decisions of both the district and su
preme courts. The celebrated Nash case was
cited. In this case, it will be remembered,
the supreme court held that the council
could not rescind the grants it had made to
the street railway company. Upon the con-
cluSiOn OF Mr.. Horns remarks, Gen. San
born cleared his throat and proceeded to
fight the
FIRST ROUND FOR THE CITY.
The general stated that the question at
issue was whether or not the city railway
company had ever acquired an irrevocable
right 10 occupy all the streets of st. Paul. He
thought not. Mr. Sanborn further thought
the council never had the power to grant
such extraordinary rights as the Lowry COM
pany claims to have. No such grants could
be lawfully made without the specific d1rec.
ton of the legislature Gen. Sanborn
spoke until ~ o'clock, when court took
recess until 2 O'Clock. After dinner
The venerable John NJ Gilman made fore
ible argument in behalf of the street railway
company. He said that in this action the
city was not in a position to question the cor
porate existence of the st, Paul City Railway
company, as it had always recognized and
dealt with it as a corporation.
L know about what argument Mr. Rogers
Will make, " said the venerable attorney. land
I'm going to take time by the forelock and
answer him in advance. Now, Mr.. Rogers
will tell you that the legislative act of 1882
is unconstitutional. Well grant, for the sake
of argument, that it is. We don't have to
rely on the act of 1892. All we want is the
act of 1872" Mr.. Gilman declared that the
act OF 1872 was constitutional and that it
gave to the st. Paul City Railway company
the right to
OCCUPY ALL THE STREETS
in the city Of st. Paul. He was satisfied to
rely solely upon that act, as he claimed that
the legislature had the power to control the
streets of ST. Paul
The best argument of the day was that
made by Edward G. Rogers. of the counsel
for the plaintiff. He spoke substantially as
follows:
I'VE deny the Incorporation of the defend
ant, the st. Paul City Railway company. The
territorial act of 1858 Incorporates the st.
Paul and 81. Anthony Railroad company,
and gives it authority to construct steam
railroad from st. Paul to St. Anthony. A
section of the act provides that if the com
pany shall not organize in one year from the
date of the passage of the act and have the
road completed within three years from the
date of organization, the act shall be void.
The act of 1856 amends the act of 1898 in
some unlmportant particulars, and extends
the time for organization to three months
from the date of its passage. The incorpo-
Tators of this road did not organize within
the time prescribed by either one of these
acts, and has never done anything toward
the construction of the road referred to. 1t
is therefore claimed that no corpo-
ration was ever formed under either
the act of 1858 or the act of
1856. The ordinance of 1867 purported
to give certain persons authority to lay out
a line of railway along the streets of st. Paul.
Section of this ordinance provides that the
rights granted shall be forfeited unless at
least one mile of railway is constructed and
equipped for business before July l, 1869.
1t is not claimed that any one ever went on
and acted under the powers granted in this
ordinance. We understand that the defense
does not claim to have derived any rights
from the persons who are grantees under
the ordinance of 1867. as this was after
wards superseded by the ordinance of 1872.
The act of 1868 attempted to validate and
confirm the ordinance of 1867. This act,
however, was amended in 1872 by an act
which inserted, in place of the ordinance of
1867. Ordinance No. 81, which was passed
in 1872. The acts of the legislature of 1868
and 500 are unconstitutional. for the reason
that they are contrary to the constitution of
the state of Minnesota. Section 1874 of the
constitution reads as follows: "And no law
shall embrace more than one subject. which
shall be expressed in its title" The title of
the act of 1868 reads as follows: can act 10
revive and continue an act and corporation
created by said act, entitled An act to incor-
porate the st. Paul & ST. Anthony Railroad
company, approved March 2, 1893 and to
amend such act"
The title of the act of 1872 is as follows:
e. An act to revive, continue and amend an
act entitled An act to revive and continue
an act and the corporation created by said
act. entitled An Act TO incorporate the st.
Paul & st. Anthony Railroad company" APP
proved March q 1853. and to amend said
act. approved March !, 1882 Each one
of these laws provides for the incorporation
of a company to operate railroad from st.
Paul in the direction of St. Anthony and they
purport i'll their titles TO be amendments Of
the old charter of the st. Paul d st. Anthony
Railroad company, given by the territorial
legislature in 1858. Another part of each of
said acts gives to the st. Paul Railway COM
pany the right 10 construct and operate lines
Of railway in all the streets of the city of St.
Paul. and further attempts to ratify and con-
firm an ordinance passed by the common
council of the city OF st. Paul. 1t requires
no argument to show that these laws en-
brace more than one subject, for 1t
CAN HARDLY BE CLAIMED
that the organization and amendment of the
charter of railroad company to run be-
tween st. Paul and st. Anthony is the same
subject as the granting or a franchise for a
street railway company TO occupy all the
streets of ST. Paul
The acts Of 1868 and 1872 are also uncon-
stitutional because they are contrary to Sec
ZION 2. article 10 of the constitution. which
provides that mo corporation shall be
formed under special acts except for munic-
ipal purposes" 1t is claimed on behalf of the
defendant that the acts of 1868 and 1872
did not creute a new corporation, but merely
amended corporation already existing to
wit: The St Paul d ST. Anthony Railway
company. which acquired its charter from
Ike territorial legislature. It will be admitted
that the state legislature could not create and
form new corporation under provisions of
the charter of corporation already existing,
and any person who will compare the pro-
visions of the act of 1858 incorporating
the st Paul d st. Anthony Railway
company with those of the acts
ST. Paul L. st. Anthony Railway company
cannot fail TO see that all the acts are an at
tempt under cover of pretended amend
ment to accomplish indirectly what they
COULD NOT DO DIRECTLY
that is. create a new corporation. The
| legislature of 1889 passed an act which pro-
vides 10 amend section II, chapter 4 of the
charter Of the city of st. Paul so as to read as
follows:
THE common council shall have power
| and authority by vote of three-fourths of
the members-elect of said council to grant
! the right of way upon, over and through any
| public streets alleys highways or public
| grounds or levees of said city to any steam
1 railway or horse railway company or corpo-
ration, upon such limitations or conditions
as they may prescribe by ordinance. and no
| other company or corporation heretofore or
hereafter organized shall construct, main
| tain or operate upon any street not now so
| occupied any such railway until an ordi-
nance shall have been hereafter duly passed
| by said common council by such vote allow
| ing the same
IT. as we claim, prior 10 the passage OF this
act, the St Paul City Railway company had
| not obtained either directly or indirectly
from the legislature an irrevocable franchise
| or contract to allow its tracks in the streets
| of St Paul. then this act virtually took away
any rights il might have acquired from the
| common council to occupy any streets which
| in had not heretofore laid its tracks upon
| and the St. Paul city railway company in at
tempting TO occupy any of said streets with
| ont The three fourths vote OF the council, az
| provided for in said act has done SO without
| any authority in law. whatever. On Aug
| %. 1889, the council, by an ordinance
duly passed and published before