St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1889-06-23
NOT EXCLUSIVE.
The Consensus Of Legal Opin-
ion on the Street Car
Franchise.
Exact Language Of the Ordi-
nances Of the Twin City
Councils,
Under Which the Exclusive
Franchise Is Now
Claimed.
In st. Paul Horse Power Is
the Only Motor Speci-
he'd.
Minneapolis Put the Limit on
Horse and Pneumatic
Motors.
Reservations Made by the
Council in the Two Ordi-
nanceS.
Learned Attorneys Hold the
Franchise Is Not Exclu-
Sive.
And There Is Nothing to Shut
Out Any New Com
panieS.
Reservations Made by the
Council in the Two Opdi-
nanceS.
Learned Attorneys Hold the
Franchise Is Not Exclu-
SiVe.
And There Is Nothing to Shut
Out Any New Com
panies.

l.
to lay tracks and operate horse car
railway in the streets of the city of st.
Paul. were given oft by grant from the
city council. In order that one may I'M
derstand the nature of granted right
or privilege 1t is necessary to consider
its source. Formerly, the power to make
such grant rested entirely with the
sovereign as the fountain-head of the
government and was known as one of
his prerogatives. When the colonies
separated from Great Britain that
power went to the people of
this country. who, under a
constitutional form of government,
are its fountain-head. The granting
power being with the people. it could
only be exercised by the representa-
tives of the people in legislative as
semblies, or by corporate bodies author
lied by the legislature to make such
grant.
The legislature of the state of Mime
sofa delegated to the city of st. Paul
troll. through its common council, of all
public highways, bridges, streets,
alleys and public grounds within the
limits of said city. The legislature also
delegated to the city of st. Paul the
power to grant certain rights and priv
legeS, among them the right Of way
upon, over and through any of the pub
lie streets to railway companies of
varied motive power.
THE FIRST GRANT.
In 1872 the common council exercised
this delegated power and granted to GER
tain parties, named by it. the right and
privilege to lay tracks and operate a
horse railway in the streets of the city
of st. Paul. The grant is in the follow
ing language: "rhere is hereby
granted to J. C. Burbank, j. l.. Merriam
and dozen others. or such of them as
shall accept and comply with the terms
hereof. together with such other per-
ated with them, and to their heirs, eX-
ecutors, administrators and assigns, per-
mission and authority to lay line of
railway, with single or double track,
with all necessary or convenient tracks
for turnouts and side tracks and
switches, in any or all of the
streets in said city. conditioned
that no track shall be laid on Third
street between Sibley and Wabasha.a and
that single track only shall be laid on
Third street. between Wabasha and
Fort streets, and no double track On any
street which is less than sixty feet in
width, and to operate horse passenger
railway cars and carriages thereon. in
the manner, for the time and upon the
conditions hereinafter mentioned and
prescribed; provided. that single track
only shall be on Third street, between
Wacouta and Broadway. and that in all
instances the tracks of said several lines
of railway shall be laid on the central
portion of the street, Ordinance,
Jan. 8, 1872, sec. u.
1t is under this grant that the st. Paul
City Railway company now claim the
Exclusive right to lay tracks and to
operate street railway in all of the
streets of this city. And so persistent
has been its claim OF possessing such
exclusive right" that most of the citi-
zens of this great city believe its claim
to be true.
Does the st. Paul City Railway COM
pany possess this exclusive right?''
Nowhere in the language by which the
legislature delegated this granting
power to the city council does the word
exclusive" appear. The power dele
gated is no grant the right of way,
etc" 1t is a well settled principle of
law that where such a power is dele
that body can grant
NO GREATER RIGHTS
than those named in the delegated
power. This is acknowledged by fire.
quent decisions of the United States
supreme court. The same court said,
in deciding the case of Thompson VS..
Lee Co., 8 Wallace: IA municipal cor
poration can exercise no power which
is not in express terms or by fair impll-
cation conferred upon it." 1t is neces-
Sary then, that the word ''exclusive,"
or its equivalent, should appear in the
language with which the legislature
authorized the city council to grant the
privilege of laying tracks in the streets
of this city. Before the council has the
power to grant exclusive rights. in its
absence, grant by it of an exclusive
right would be void so far as the sex
clusiveness" is concerned. The United
States supreme court has decided that |
where the legislative power was given
to the city council ito grant the right to
establish ferries and bridges" the word
exclusive not being used. grant by the |
council of the exclusive right to one
person to establish such ferries and |
bridges was beyond the power dele
gated, and void.
1t is not necessary to apply the above
principles to the franchise of the city |
railway company, as it cannot be sue
cessfully claimed that the city council |
has granted to it the Exclusive right" |
to lay tracks in the streets of the |
city. The language of the grant |
is, "TQ lay line of rail- |
way, with single or double tracks.
and with all necessary or convenient |
tracks for turnOutS and sidetracks and |
switches, '.in any or all of the streets"