The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1898-12-09

on free bridges for foot passengers me-
and heard the opinion OF City Solicitor
Frank W. NesbItt. relative TO the Legal
lily Of the proposed measures by which
It 10 intended to bring about the abOli-
tIon OF foot toll on the two main chan
mel bridges. Those present were coun-
cilmen N A. Chew and William BaiTa'
and Messre. C. E. Schenerlein and r.
G. H. Schwertfeger, with Solicitor Nss-
The solicitors opinion in full was as
10 the subcommittee on Free Bridge.
GENTLEMEN:-In the matter OF the
rights Of the. city win respect 70 sne e' ,Se
Ohio to Sc used as free public pTldge, oT
| to the right OF the city TO pay an annual
sum to one OF the present toll prlSlse COLI sss
panieg for the free passage OF logt g ~
| sengers over such company's bridge.
which questions were submitted to me ny
the council committee with lnstTuctioins 70
report to you, beg to submit the ioho"-
ing: ,,.,., -,o,.,,,tor
Of law that a municipal corporation pos
sesses and can exercise the following pow;
! ers and no others: First, those granted
I In express words. Second, those neces-
sarlly or fairly implied In or Incident to the
mowers expressly granted. Third. those
essential to the declared object anu puT-
pose OF the corporation, not simply conVe-
nlent but Indispensable. Any lair reas
sonable doubt concerning the existence OF
Inc power Is resolved by the courts against
the corporation and the power is deniedt
In constituting a public charter when
doubt arises as to. the powers eonie,TIeu,
reference may and properly SHOULD "
made to such other statutes Of the state rs
relate to the subject matter in question; Il
Is true that generally throughout the Uni,
ted States the power granted TO munlciPli pa
corporations 10 open and opeTaSe pu9ttc
highways Is construed as lncludlns the
power 10 open and operate bridges con-
Meeting ends OF thoroughfnres abuttlnR
upon streams passing within city limits.
but II nothing can be found In the statutes
OF the stnte which would tend TO Indicate
an opposite legislative Intention the DOUBT
should be resolved against the theory that
the municipal corporation possesses sHSH
bridge powers. In the state or west VIZ
ginln, l believe, that with the exception OF
the Ohio, the Great KHnawhn and Biz
Sandy rivers, all streams within the state
passing through the limits OF any OF our
municipal corporations may be briuged
by said corporations within their corpor-
ate limits But the code Of West Virginia,
chapter a, SECTION 2, provides as follows:
| Corporations 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
| Dorntion 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 be pro-
vlded by the Congress OF the United States
and upon complying with the require
ments. conditions and provisions 80 pre-
scrii>ed and not otherwise" Section y
provides EVERY bridge across the Ohio
river hereafter erected or commenced
wholly or In part within the Jurisdiction OF
this state contrary to the next preceding
section, (that Is section y
shall be deemed 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 IA legislative
| grant. Further, the legislature Is without
| power, (belng restrained by the constitu-
| tom, to grant TO the city Of Wheeling n
right to erect such bridge u toll Is to be
| charged for vehicles crossing the same;
because our constitution provides that the
| legislature shall pass no special or local
act relating TO toll bridget Therefore un-
| less n new general law were passed by the
| legislature referring generally to the sub
| feet Of toll bridges and to the erection OF
tho same, 1t would be Impossible for tho
city OF Wheeling TO charge toll for vehicles
| crossing amy bridge which might be erect
/ ed. In other words. such bridge would
have to be free to all persons, that Isl y
public highway.
OF course, any bridge erected across the
|
secretary OF war before such erection could
| proceed.
the city to pay TO one OF tho present
bridge companies an annual sum for the
passage Of foot passengers across tho
| bridge of such company free OF charge,
the city has authority to lay out and cause
to be opened. streets, walks, etc, or to
i extend and widen the same, first having
obtained title to the ground necessary for
1 that purpose. find no precedent any
where for the renting Of ground for use as
n public highway; nor do | lind any pre-
cedcnt for opening a highway for foot
! passengers only. by any such method as
| that proposed. | feel that under our pres
ent charter and statutes amending tho
same, the city Is utterly without power TO
| nay to one Of the present bridge cCmpan-
| les nm annual sum for the privilege above
referred to: not only for the foregoing
reasons, hut also for the reason that such
proceeding would virtually be surrender
| Ing to tho bridge company the duty Of the
| city to maintain and keep In repair all
public highways within tho limits OF the
| corporation.
The legislature can grant to the city the
| power to make such contract with the
| bridge company. Therefore In order for
| the city TO make such an arrangement
statutory grant would he necessary.
| on the subject OF the power OF the city
| to purchase one Of the present bridges
| there IL some doubt. which according to
| the rule Of construction first above refer
red 10, should bc resolved against the city,
| and would be so resolved by a court IN
case OF litigation. Tho fact that the cree
| ton OF bridges over the Ohio Is delegated
| to tho bridge companies and railroad conf
| pHnles only would seem to carry with II
| tho legislative intention that only bridge
| companies and railroad companies might
maintain such bridges. At amy rate II
would be the safe and tho wise thing TO do,
to obtain legislative permission before at
tempting to purchase one OF the present
Finaiiy. ms to the power Of council TO
make any such improvements ms proposed
! Will say that since either purchase.
| way over q bridge for more than one year.
that is, where deferred payments are con-
| tractcd to be made would require n debt
to be contracted the question must be re-
fcrred tO popular vote, oven after tho leg
stature had granted full power to the
Hoping the above may be satisfactory.
l am, Very respectfully,
FRANK w. NSSBITT,
City Solicitor.
The committee then discussed the
several propositions elaborated upon in
the solicitors opinion, and the general
sentiment was that the only feasible
undertaking will be to 30 before the
| legislature and secure the enactment OF
n bill by which the city council may
enter Into q contract with the two
bridges for one year FOR free foot pas
snEe for alt peopie, together with
authority TO 20 before the people AZ the
| end OF the first yenr on the PROPOSE
tlon to bind the city to pay n similar
amount for free foot passage for ten.
/ twenty or twenty-nlne years as may
be found desirable