El Paso daily herald. (El Paso, Tex.) 1881-1901, 1897-11-05
THE CITY COUNCIL.
Report From City Attorney Kemp on
Street Railway Franchises.


1t was case of ''low lights dimly
burning" at last nights meeting of
the city council. The meter was out
of whack and would not let in the gas
with any force, 80 the burners burned
titful AID dim, as il were, and the ses-
sion was neid amid funeral gloom.
The city attorney and Judge Caldwell
were absent in San Artonlo. So At
iOrney COINS read the city attorneys
rel port as follows:-In response to your
Ell quiry as to the proper method of
forleitlng franc alses and grants OF
right OF way, especially to street rail
way companies, L respe tfully submit,
| as my opinion, that 1t should be done
in suit in the district c0urt, wherein
the alleged causes of forfeiture on the
part of the city and the rigE is and
equities Of the other parties may be
fully heard and determined.
In the case of G G. railroad compa-
| ny VS.. the G. {. Street Railway Co
63 Tex 529, Judge Watts of tie COM
| mission of appeals, held that the con
sent of a city council for a street rail-
| way company TO occupy the streets
was mere license, and that at least
| until the company has availed itself
OF the license, the city council may at
any times withdraw its consent and
| confer the privilege on another" and
| Ito enable the council to withdraw its
consent, and especially before any az
| ton had been taken by the company,
when after constructing the road it
had been removed and the street aban-
doned, it was not necessary that the
council should procure judicial decla-
ration of fellure but under such
circumstances the council bad the
power to withdraw its consent In 65
| Tex. COZ, however, the same case was
| before the supreme court, and Chief
Justice Willis practically over-ruls d
Judge Watts, or at least left the parti-
cular part of his opinion quoted. in
such doubt that cannot regaI it as an
authority on the point in question.
| The courts of Texas, and especially
| in the later decisions, seem very
| jealous of the franchises granted
urban railroads, and it is evidently
their policy to guard them as far as
] they can reasonably, without interfere
| ing too much with the recognized
powers and rights of municipal
authorities. From my understanding
OF the authorities, therefore, when the
| council deems it proper to forfeit or
revoke franchises (such as rights of
way over streets and alleys,) inttead
| of merely declaring for feiture of by
| ord nance, or repeal of ordinance
granting such franchise, l would ad-
wise that judicial declaration of
| forfeiture be obtained in the district
| court. Among others, S4th Tex, r.,
| Z. $50, l consider an authority on this
point. l doubt, however, whether the
council will find it necessary to take
any steps towards judicial forfeitures,
at least for some tine to come, for the
following reasons:
AS far as L have been, none of thu
| franchises granted are exclusive: that
Is, they do lot entitle the grantees to
any particular parts of streets or al
leys, nor to the exclusive use of them
Hence, the city council can grant
rig hts of way over the same streets and
alleys to others, if it see fit to do so.
And the company actually locating its
road first would hold lis line potwith-
standing a former franchise rot ex-
elusive, nor for particular part of
street or alley may have been granted
to some other company over the same
streets ard alleys; 81 Tex. 10; IS Tex.
10; 50 Tex. 529.
2-If there are any railway corpora
tious, or b 1t or suburban comp mics hav-
ing charters granted or anuu;led since
January l, 1897. which have failed to
complete any extension or branch line
Within the time required by law, they
may obtain two years extension from
February %, 1897, by virtue of an act of
the last legislature, Genl. Sess. 1897,
p. .. do rot know that there are any in
this city coming; under that act, but in
case there should b., [ call attention
to the statute. Authorities that may
bear more or less on the question pre-
santed, and the action of cities in for
ft iting franchises are as follows:-Gal-
weston ~ w. Rv. Co. vs.: City of Gal
weston 20 5. w. r 96 Mayor of Hous-
ten VS.. II. b. q M. 2, Ry. Co.. 81 Tex,
$50. Mayor OF Houston VS.. Houston St.
Ry. Co. 50 Tex 54S FIT. Worth Ry,
Co. VS.. Roeeaa!e Ry. Co is Tex, ITO.