The Saint Paul globe., 1900-05-22
COUNCIL HAS TIE POWER
JUDGE BUM DECIDES NOT TO
FURTHER RESTRAIN THE MU-
NICIPAL LEGISLATURE
IN MANHATTAN RESOLUTION
Merits Of the Proposed Resolution
Are Not Discussed Beyond the
Finding That They Are Leg
tsIative In Character.

Judge Bum late yesterday afternoon
filed an order in the injunction suit Of
Henry E. l.. HabighOrst against the city
Of St. Paul, the Manhattan Light, Heat
& Power company and the city council.
The court dismisses the application Of
the plaintiff for a temporary injunction,
restraining the common council from
passing the Manhattan lighting resolu-
ton, vacates the temporary restraining
order and discharges the order to show
cause. The court holds that it has no
jurisdiction to enjoin the common council
from passing the resolution, if the same
is legislative in character.
The court, in the memorandum accom-
panying the decision, says:
Il regret that there is no time for more
thorough consideration OF The important
questions inVUIVed, questions that are
new in this state, and upon which lhy de-
cision is final under the circumstances.
Has the court jurisdiction to enj0in
the common council from passing the So
called Manhattan resolution over the
mayors veto? Plaintiff counsel con-
cedes, as he must, that the court has
no jurisdiction 10 enjOin the passage OF
an ordinance by the common council of
Il city, the legislature of the municipali-
ty, If the action Is an exercise Of legis-
lauVe as distinguished from purely al
ministrative functions and within the
power of the council, but he contends that
the resolution Is not an exercise OF the
right of municipal legislation, but purely
administrative in its Character, and that
the council is acting without power, or
at least beyond its power.
The resolution is, in my opinion, an act
OF legislation. 1t is not merely an at
tempt to enforce the ordinance, and,
therefore, purely administrative in char
acter but purpOrts TO grant additional
rights and privileges, much greater and
upon different terms and conditions than
those granted by the ordinance. 1t is, in
effect, If not in form, a complete and in
dependent O.
visions Of the ordinance to which it re-
ters, and the independent character of
the grant becomes clear; there would be
a grant of rights or privileges though the
ordinance had not been passed.
Neither can / hold that the council
mas 40 power TO legiSlate upon the sub
Ject 1t may be true that the laws Of this
state give the council 10 express authorl-
ty to grant the use Of the public streets
10 pubic service corporations but it GER
talnly has the implied power. How eX-
tensive this power is, whether the ordi-
nance or the resolution in question is
wholly within the power, or whether some
OF the provisions Of both or either are
ultra wires, and exactly what rights the
Manhattan company Will possess under
the ordnance and resolution are, in nv
mind, questions that are immateriaI on
TINS motion. l cannot hold the original
ordinance void, and under it and the res
oIutlon, the company Will acquire rights
or privileges, the exact character or ex-
tent OF winch may be question for the
courts hereafter.
Even II the ordinance and resolution
are absolutely ultra wires and void I am
unable to see how the plaintiff can be in
gured by the action he seeks to enjoin
In that case, the company could acquire
no rights whatever by the passage Of the
resolution, and plaintiff would suffer no
INJURY. His remedy, both in equity and
under the statutes of This state, would be
adequate. His injury would not result
from the passage of the resolution, but
from the attempt of the company to en-
force ~ &c oy,
II IS, perhaps, unnecessary to say that
with the wisdom or expediency of the
ordinance or resolution, the court has
nothing to do. The courts have no power
to legislate or TO prevent the exercise Of
this power by the department of the gov
ernment to which it exclusively belongs.
IL IS the duty of the courts to construe,
some times to declare void. the acts of the
legislature of the state and common coun-
ell of the city, but it exercises this duty
acted, not before"