The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1893-02-28
LIFE OF FRANCHISES.
An Official Opinion As 70 Their
Legal Extension.
BRAGG m LIEU OF GALLAGHER.
4 New Clerk for the Municipal Court
Debate - the Granting Of Li4aer
Licenses Down 1own.

The city council met LAST night, and
among the more important business re-
ceived . written opinion from Corporation
Counsel Donworth on the question
whether the council could extend the
terms of a franchise without having il
again put up for competition. It is - fol-
lows:
have been requested By you 70 give IN
the term Of duration Of the street railway
franchises under which street railways have
been built and are already in operation. Sec
ton q of article Nv OF the city charter contains
the following language:
Tho city council shall not grant authority
70 construct . street railway or lay down street
railroad tracks upon or over any of the streets
Of said city except In manner and on the terms
following and then follow certain provisions
requiring such franchise to b sold at auction.
The question IL whether this section applies to
the extension OF the term of Q franchise which
has been heretofore lawfully granted and under
which . railway has been built and conttnu-
ousiy operated.
The charter nowhere prescribss the term for
which street railway franchise may Be granted
1t has been the custom heretofore 70 make the
grant for twenty-five years. but the charter
does not contain any Limitation - to the fran.
chise period 1t 10 settled by the best authori-
ties that grant of . franchise for street rail-
way In perpetuity 10 void: that there must be
limit OF the time for which the grant 10 made.
What this limit 10 in this state does not seem to
have been determined either by statute or by
decision OF the courts. I incline to the view
that our courts would decide that the longest
period for which q franchise can be granted, 10
tho longest period for which . corporation can
be chartered. viz, fifty years While there 10 no
necsssary connection between the term OF coz
porate existence and the term Of . railway fran.
chise, yet think the courts. by analogy, would
adopt the period fixed by the Legislature In the
one case ~ safe rule of Ieasonableness to ap-
ply in other case. In my opinion. therefore,
q franchise for fifty years IL valid IL properly
granted.
Whom . franchise has been once granted, its
terms fully complied with aud the railway con-
structed and continuously operated hereunder,
does the charter require any extension Of the
term OF such franchise to b sold at auction?
Unless the section before quoted requires this,
it 10 not necessary. for there Is no other charter
provision limiting the discretion OF the city
council in this respect The language of the
charter II that the council shall not grant au.
thority to construct street railway or lay down
street railroad tracks except In the manner pro-
vided. This by no rule Of construction can ap-
ply, in my judgment, to an extension OF the
term where . road 10 already constructed and
the tracks are already laid down. The charter
seems to recognize the plain distinction between
tho construction Of q new railway and the mere
continued operation OF one already built A re-
cent writer on street railway Law, in citing the
decisions that have been made by the courts OF
other states constituting similar provisions, says:
Although under the statutes of some of the
states the original grant cannot be made with
out the consent OF abutting property owners,
aud can be made only to the company or tndi-
viduai Offering to carry passengers at the lowest
ia EA~ II
to the validity OF . renewal or extension of the
grant. Nor 10 competition in rates of fare, Al
though required for an original grant, . con-
franchise. Hence. Whenever in thssopinion OF
the local authorities the public welfare would
be promoted thereby. they may by agreement
il: and renew tie iof 40
period not In excess Of the Limitation dxed by
statute.
have not found any authorities In the books
In opposition to the views Of this author, ana in
the absence OF any such authority feel that
our charter provisions must b construed In the
same way. giving them NO other meaning than
that which the words plainly import Your &C.
ton, therefore, In granting an extension OF the
franchise period will bind the city.
Though the charter does not require, in my
opinion, that these extensions should be sold at
auction, nevertheless the question whether the
city receives . fair return for the privileges
determination OF the city council. Instead of
requiring a public sale open to all bidders in
these cases the charter leaves the matter to the
business sense OF the council, to be determined
with or without auction on a basis satisfactory
both to the holder of the franchise and to the
city The city council of course cannot be CON-
PEELED to extend the term Of any franchise, and
ii an extension 10 granted. it must be upon such
business arrangements as in the judgment of
the council are fair and protect the interests of
the city. The same rule would apply - In the
case OF any other grant which is not required to
be sold at auction. There is nothing in the
charter to forbid sale at auction II the council
deems it proper.
II the extensions were made in violation of
charter provisions, the effect, of course, would
be worse for the street railway companies than
for the city. because the council cannot bind
the city by any act that IL contrary to the char
ter. But ss have already said, think your
action in granting the prop ossd extensions will
confer valid right upon the companies. As
there is nothing in the charter that conflicts
with the ordinances now under consideration.
the city will DO bound firmly by their passage.
Whether the payment of The stated percentage
of gross earnings 10 q sufficient compsn satiou
for the privileges granted 10, OF course q bust
ness matter OF which the council must be
judges.
The mayor sent in the name of +. H.
Bragg as CLERK of the municipal court in
place of Joseph E. Gallagher. who term
expires on April 1. As several members
had never heard of the appointee, al
though Alderman Brewer vouched for
him. the nomination was referred to the
committee on claims.
Both houses will meet tonight and pass
an ordinance extending the time for pay
ing city taxes. probably until April /.
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