Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1898-12-09

IL IAN In AN 41ftlCNAI, ANIL IfiE
MATTER MUST BE SUBMITTED TO
THE PEOPLE AS WELL.
Council committee on free toll and free
bridges over the river met at the City
Hall last evening, and listened to the
reading of the opinion from the City
Solicitor upon the questions submitted
to him some time since. The Commit
tee agreed to do nothing last evening,
but adjourned to meet at some early
date to confer with the Bridge Com
panies or their representatives.
The opinion Of the Solicitor was as
follows:
To the subcommittee on Free Bridge.
Gentlemen:-In the matter of the rights
of the city with respect to the erection or
purchase of bridge across the Ohio to
be used as a free public bridge, or to the
right of the city to pay an annual sum to
one of the present toll bridge companies
for the free passage of foot passengers
over such company's bridge, which ques-
tons were submitted to me by the Council
Committee with instructions to report to
you, 1 beg to submit the following:
1t is generally undisputed proposition
OF law that municipal corporation pos
sesses and can exercise the following pow
ers and no others: First Those granted
in express words. Second. Those neces-
sarily or fairly implied in or incident to
the powers expressly granted. Third.
Those essential to the declared object and
purpose of the corporation, not simply
convenient but Indispensable. Any fair
reasonable doubt concerning the existence
of the power is resolved by the Courts
against the corporation and the power is
denied.
In constituting a public charter, when
doubt arises as to the powers conferred,
reference may and properly should be
made to such other statutes of the State
as relate to the subject matter in ques-
ton. 1t is true that generally throughout
the United States the power granted to
municipal corporations to open and oper-
ate public highways is construed as in
Guiding the power to open and operate
bridges connecting ends of thoroughfares
abutting upon streams passing within city
limits; but If anything can be found in
the statutes ST the State which would
tend to indicate an opposite legislative in
tention the doubt should be resolved
against the theory that the municipal
corporation possesses such bridge powers.
In the State of West Virginia, 1 believe,
that with the exception of the Ohio, the
Great Kanawha and Big Sandy rivers,
all streams within the State passing
through the limits of any of our munich
pal corporations may be bridged by said
corporations within their corporate linn
it's But the Code of West Virginia, chap
ter Al, section q, provides as follows:
Corpora tons may form under the pro-
visions of the first twenty-four sections
of chapter "a of this Code for the purpose
of bridging the Ohio river. Any such cor
poration or any railroad corporation is
hereby authorized to construct and main
tain bridge across said river in the man
ner now or which may hereafter he nrn-
vided by the Congress of the United
States and upon complying with the re-
quirements, conditions and provisions so
prescribed, and not otherwise" Section
% provides: Every bridge across the
Ohio river hereafter erected or COM
menced, wholly or in part within the juris-
diction of this State contrary to the next
shall be deemed a public nuisance"
From this statute, think it will be clear
that the power of bridging the Ohio river
is not granted to municipal corporations,
and particularly to the city of Wheeling.
Therefore, in order to obtain this power,
it would be necessary to obtain a legisla
tive grant. Further. the Legislature is
without power (being restrained by the
~ tl1n oft rf
Wheeling a right to erect such bridge if
toll is to be charged for vehicles crossing
the same; because our Constitution pro-
vides that the Legislature shall pass no
special or local act relating to toll bridges.
Therefore, unless new general law were
passed by the Legislature referring gen
orally to the subject of toll bridges and to
the erection of the same. it would be i'm
possible for the city of Wheeling to charge
toll for vehicles crossing any bridge which
might be erected. In other words, such
bridge would have to be free TO all per-
sons, that is, public highway.
Of course, any bridge erected across the
Ohio would have to be approved by the
Secretary of War before such erection
could proceed.
Now, as to the subject of the power of
the city to pay to one of the present
bridge companies an annual sum for the
passage of foot passengers across the
bridge of such company free of charge,
the city has authority to lay out and
cause to be built walks, streets. etc, or
to extend and widen the same, first hav-
ing obtained title to the ground necessary
for that purpose. l find no precedent any
where for the renting of ground for use
as a public highway; nor do l find any
precedent for opening highway for foot
passengers only, by any such method as
that proposed. l feel that under our
present cnarter and statutes amending
the same, the city is utterly without pow
er to pay to one of the present bridge
companies an annual sum for the privi-
lege above referred to; not only for the
foregoing reasons, but also for the reason