The record-union., 1892-08-04

A. vas because III was granted by authority OF
IaW-Ihat is, by enactment, regular, lawful
anu operative: and that if such was the case,
the state then had a right TO do what 1t did
ana no one was injured
Inc right to manage the valley is vested
either in the Legislature, by virtue of the
sovereign power OF the Stale. or IN the Com
nlssloners, by virtue of the Act of Congress
granting the valley to the State. II in the
commissioners, the attempted grant by the
state was imperative and void; if in the
state, then the Commissioners had no such
exclusive jurisdiction as would warrant them
IN granting an exclusive franchise. In either
event the result is the saIne-the plaintiff has
no cause OF action.
In TACT, the management of the valley is
vested by the Act OF Congress and the accept
ance OF the grant by Act of the State Legs
lature, In the commissioners. and no power
remains In the Legislature 10 legislate upon
the branch OF the matter under consideration.
Inc courts have held that the State is not at
liberty TO disregard the terms OF its contract
with the General Government, one provision
OF which is that the commissioners are to
manage the valley and all franchises.
III is lngeniously sought, however to evade
the force OF TINS suggestion by the theory that
tne state yet retains power of eminent do
MAN over the valley, and that in the exercise
OF that power il took from the plaintiff a nor
ton OF its exclusive franchise and bestowed il
upon the rival company, and that il does nor
lie III the mouth OF the attorneys for the State
TO say that its attempted grant was void
Among the many untenuble positions as
su1ned by the plaintiff in this action do not
tnlnk there Is any other more unsupported by
authority than this.
III is not claimed that the State actually took
the property u et drneiS, but simply that il
authorlZed another person to lawfully take It,
since II would be absurd to say that the State
could take 1t in any other way than lawfully
or ri ct d77ais.
But the State cannot exercise its mowers of
eminent domain in this informal and sum
mary manner. Either the acts of the state in
attempting TO take the property were valid or
A I'm -
Is not even contended that the State attempted
to pursue any of the usual steps in condemns
ton proceedings. AS eminent domain pro-
ceeulngs they were wholly aud utterly made
quate. The State car acquire private prop
erty only under the forms of law or by actual
force; and when seeking property, it must
strletiy pursue the beaten path as prescribed
by the Constitution and the laws enacted
hereunder. Without this beaten track the
State is as powerless to acquire property
against the will Of the owner as Is the hum
blest resident.
IL is not claimed that this taking was ri Of
a17aiS. There remains then only the inquiry:
was II taken under the forms OF law? The
proceedings had are so totally wanting in
inquiry would app ear to be a protitIess ey.
penditure OF ene!gy.
The Act OF 1874 purporting to grant the
rival franchise provides no method of assess
ing damages and makes no froy vision for their
payment. 1t seeks III no way 10 acquire the
consent OF the owner Of the territory invaded
adjudication OF no tribunal
1t Is AT most bald, bare aSsum ption of au.
tnority on the part OF the Legislature to take
Ihe pforerty O. the piatntin, without any
legal Justification whatever
think 1t may be safely assumed TINT there
Is no: Within the whole scope of American
lurlsprudehce single case that holds that
private property NAV be a"ouirad IN TIM Of
peace in this hign-Eanued and informant yyaJy
IL really needs no citation of authorities 10
snow tnat the Act OF 1874, as q source of title
10 Iie rival company IS Unconstitutional and
VOIQ. authorities holding that an Act pro
Vldlng for condemnation PROCEEDINGS and
making no provision for conversation is
VOID are very numerous, both in this and
other states.
In - Cal. 5 is found a case which is GER
tainly vastly stronger than the case Of niaint-
III, because II that case it appears that the
otdIe ulu lawfully perform certain acts which
resulted N great injury 10 Green ct al. Yet
the supreme Court, in that case saws.
"A law which provides Tor taking private
property for pubic use without ma King pro-
vision for compensation is void Here
the State could not take by anv IaWfI,I
method what it is now claimed for the mn
poseof holding il liable in damages it did in
Iact take"
Much stress IS laid by counsel unon II
Conn. 40; but in that case no effort was made
TO hold tie State the grantor OF the rival
l an; hlSel liable in damages, tut is merely an
ilcIloii against the II val Itself. In that case
the rival actually, physically invaded the ex
elusive territory OF The plaintif1, and the court
held, ana IT seems 10 me correctly that the
action could be maintained iusl n tne rourtS
would hold that this plaintiff could sue the
big Oak Flat Company Tor an uni awIl} in
vasion of its exclusive franchise II l. has one
II Is not r2ued that if the acts of tae rivai
company were il law unauthorized the staIe
would be liable.
q more reasonable view is to say that the
Act OF 1874 was an abortive ATTEMPT if plaint-
III mas an exclusive 1ranchisel to confer a
similar franchise upon another company Ii
TIE attempt was success then this remark
able result was accomplished. The LeLisla-
ture, by the simple exercise of its legislative
VIII, took from the plaintiff its property and
maze present OF 1t to another. But if the
rival company was not authorized bv any
valid law OF this State then it was not au-
thoriGed by the State at ali. since an malta
Act IS no ACT, and therefore the State is not
liable.
Under the reasoning of II Cal. $50 and 70
Gal. ) / 1t IS exceedingly doubtful il the State
would be liable in either view OF the mater.
The intent of the Legislature being that the
court should not be bound by the recitais i'm
tie Act OF 1891, the next inquiry is rs 10
whether the plaintiff had IN fact an exclusive
since II IL had not the question is
settled against the plaintiff, Irrespective of
the question already discussed That Con
5ress intended the roads leading to the valley
10 be tree I am we'll satisfied from an exl1ni
nation OF the Act, but the highest Court i'm the
State having held otherwise the question is
not open TO inquiry.
The plaintiff claims an exclusive franchise
under its contract with the Commissioners
IL IS not claimed that the contract itself in
terms grants an exclusive franchise but that
such result was accomplished by the resolu-
ton which authorized the Governor To OK
acute the contract; and, secondly. because the
commissioners in their report to the Gov
ernor refer 10 the franchise as being exclusive.
ana, thirdly, because 1T is recognized as ex-
elusive III the rcCltals in the special Act OF
1891 under which this action Is brought
Inc resolution does ana the contract does
not provide tlat the franchise should be ex-
elusive Tor the period OF ten years
1t Is said that Governor Booth refused T.,
sign the contract until the exclusive clause
Was eliminated; but as no mistake In the
-trms OF the contract was alleged or claimed
no inquiry mas been directed to the point
The resolution itself conferred no rights be-
cause IL SHOWS on Its face that the contract
was to pe consummated only by formal
written instrument.
The contention that the contract was modf
Re by an executed oral agreemenG is unsound
or q number OF reasons. A grant of ex-
; .usiVeDeSs is in the nature of q covenant
with the franchise ana it can never
De wholly executed as long as any portion of
.he term OF the franchise remains Jlpexpired
In fac the very assumption that plaintiff
laS any grievance precluGes theid a That the
contract OF eHc.uSiveneSs was ever executed
rne very burden OF plaintiffs complainr is
hat Ii has been violated or broken further
more, the evidence SHOWS that II was violated
ong Before plaintiff ever completed its roai
The Commissioners constitute a corpora
ion and can grant franchises only when req
Ilarly assembled as a board. and then ONLY
oy formal enactment or resolution.
VI.
There is, however, another and, I think. a
reason why the plaintiff cannot
recover. The Act of Congress vests the ex
cl1sive control OF the valley in the eight Com
nissioners, and the courts have held that the
State must observe the terms OF the contract
Of acceptance of the grant
AS already shown the Legislature is with
out power lawfully to invade this exclusive
doih!hloi OF lne Com lnlsslont r.. and therefore
whether the plaintiff had an exclusive fran
AT