Evening capital. (Annapolis, Md.) 1884-1910, 1899-08-25
MR.. MOSS EXPLAINS.
Annapolis. Md, Aug. az, 1899


Edifoy Of tie EVe1dng Capital
MY DEAR SIR:-Will you kindly allow
me space in your paper tor the publica-
ton OF the reasons and opinions which
controlled me in declaring at the Council
meeting last night that the City Council
had no legal power to grant the use of
the streets of this city to the Potomac
and Severn Railway. The Charter of
the City of Annapolis relating to streets,
Section IL, provides that the Mayor.
Counsellor and Aldermen shall have
power ito establish new streets, lanes
and alleys, and to widen straighten. ex-
tend, stop up or discontinue any streets,
lanes or alleys" without, as will be seen.
the general power. even to regulate
streets, power given in most OF our city
charters.
In one of the leading cases involving
this question, Davis VS.. the Mayor OF
New York, IL N. Y, Pc. 500, this ques-
ton is discussed and the case is nearly
identical with the one before the City
Council. except that the railway seeking
the franchise was street horse railway,
which was much less calculated to inter
tere with the use OF the streets than an
electric railway.
In the Davis case "it appeared that
the city corporation, by its charter, pos
sessed the general power to open, alter,
repair and regulate the streets. BY virtue
OF this power and without any express
authority mediately or Immediately, from
the legislature. the corporation of the city
undertook, by resolution, to confer upon
an association of persons the srckNSfa,e
right to construct and maintain for tenn
OF yea,S. railway in Broadway for the
transportation of passengers for profit.
II was the opinion OF FIVE of the seven
judges OF the Court of Appeals taking
part in the decision OF the cause, that the
resolution was void.
Judge Dillon. in his work on municipal
law. page oo7, vol. 2, approves OF this
decision and says: The judgment of
the Court in the case just mentioned rests
upon the sound principle that the powers
OF corporation in respect to the control
OF its streets are held in trust for the pub
lie use and benefit and cannot be sur
rendered or delegated by contract to pri-
vate parties and hence the resolution OF
TO construct and operate railroad upon
certain terms. without Pou'er of ,e00caffoH
and without limit as to time. was not a
license or act of legislation, but a
contract; void. however. because if valid
it would deprive the corporatian of the
control and regulation of its streets.
Judge Comstock, in his opinion, said:
"Time and experience may give a very
unfavorable solution to the question
whether this railroad or any rail-
road in Broadway can be beneficial to
the public, but the hands of the city gov
ernment will be tied by the contract into
which it has entered and future change
and Improvements may be prevented by
the voluntary surrender in effect in per-
petuity, of its own powers"
Judge Redfeld, in his work on rail-
ways. says. page 3I7: at is now entirely
well settled that a franchise for a street
railway in the highways can only be Gre
ated by legislative grant. 1t is a fran
chise to carry passengers and TO demand
tolls. This is one OF the prorogatives OF
sovereignty and derivable only through
the action of the legislature.
merely raised this question last night.
hoping the attorneys for the railroad
could show US that Ne had the legal
right under our charter to grant the fran.
chise. under proper restrictions and under
an ordinance whereby the city would not
be silent and pro6tless partner.
The correspondent of the Baltimore
SHn seeks to put me in the position Of
having violated my promise. He says:
"Mr. Moss stated during the discussion
that he would favor the ordinance if its
legality was established by providing for
the test case, but when the vote was
taken opposed it,"
never said that would favor the or
dinance then before the Council, giving
this railway the exclusive right of way
over certain streets of Annapolis. but
said would favor the granting of fran
,chise to the railway under the restriction
the City Council saw 6t to impose (many
of which were contained in Alderman
Douw' substitute ordinance.) When the
original ordinance came up for final pas
sage it was read by sections and several
amendments were offered by the attor-
neys representing the road and adopted
by the Council, but to my astonishment
not one single amentment was offered by
them looking to test case, and of course
then voted against it.
have not the least objection to grant
ing this railway, under proper restric-
tions. the use of certain streets Of Annap-
oils. il this is acceptable to majority of
our citizens, but IT should be borne in