Evening star. [volume] (Washington, D.C.) 1854-1972, 1896-02-01

| chises. but to the question of the power of
| the municipal corporation to do something
itself"
"A majority of the authorities cited in
volved nothing but the question whether
certain things may be done by a corpora
ton which is in control of the streets, and
have no reference to the granting of pow
ers and franchises to private parties for
private corporations to carry on some bust
ness by the use Of the streets for profit to
| themselves.
There are a number of authorities to
the effect that under the general power
given to a municipal corporation to control
and supervise streets and alleys they can
not grant the right to erect poles and
wires to telegraph and telephone COM
panies, and cannot grant the right to eom-
panies to put down street railroad tracks
to run horse cars on, upon the principle
that 1t Is adding an additional burden to
the streets, not contemplated in the grant
of the general authority to the corporation,
and that grant of a franchise of that
character for a private corporation, for
their profit and benefit, although 1t may
incidentally be Of benefit and advantage
to the public, cannot be made by NUM-
cipal corporation except by the grant Of
such right from the supreme legislative
power 1t must emanate from the su-
preme legislative power, and the grant is
either made directly to the company or
to the municipal corporation. A NUM-
clpal corporation is often expressly author
lied to make such a grant, and when that
Is done they can issue such permits, but
not otherwise
There have been number of decisions
cited upon the other side, but none Of
them, in my opinion, sustain the doctrine
that mt nicipal corporation under its gen.
eral power of supervision over the streets
and alleys of city may grant to an cleo
trio light company the right to put up
poles and wires for the purpose of light
ing the streets. 1t does not seem to me
that that is in accordance with the weight
OF authority. especially when you come to
review the proposition upon principle L.
seems TO me the overwhelming weight of
authority is against the proposition 1 can
not see that there is any difference in prin-
cipIe between the power of granting the
right to an electric lighting company to
put up poles and string wires thereon for
the purposes of lighting and the power
to grant to a telegraph company, tele-
pr one company or street railway COM
pany the power to erect their appliances in
the streets for the purposes which they
may desire. 1t is, in principle, the same
1t Is the grant of a franchise to private
party,either corporation or an individual,
to exercise a use of the streets by virtue
OF which this private party proposes to win
profits and imposes upon the streets a
burden foreign to the use they have been
accustomed to bear"
Judge Bingham said: | think that what
ever inference may be drawn from that
case is rather egairst the theory that the
court, at that time, supposed or believed
that in the absence of this special act of
power to grant to the telegraph company
the right to put UP it's poles and wires on
the streets of the city,
No General Power.
In conclusion, he said: Il am, therefore
constrained to hold that the Commissioners
have not in this District, the general pow
er TO issue permits of the character of
those which this record shows have been
issued by them. OF course, this opinion is
one necesS arily formed from such light and
such infol ma ton AS the arguments which
have been made before me have disclosed,
and from the consideration of such facts
as l am authorized to regard upon this
record. It may be that upon final hearing,
after full argument and upon considera ton
of the whole case, 1 might come to a differ
ent conclusion"
Chief Justice Bingham alluded to other
questions which arose in the cases but
said that they did not alter or interfere
with his main decision. Whether there
could be a continuation of lines already
cor structed WIS one of these minor cues
tions, and the court intimated that il was
doubtful one. He said he would sign an
order continuing the restraining order al
ready granted, stopping the construction
OF the complained of lines pending a final
nearing OF the three cases. The judge stated,
however. that If he was correct in his
conclusions. the Commissioners never pos
sessed any authority to grant any permit
winch tended to appropriate or occupy the
streets or roads of the city and county.