The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1900-08-22
Supreme Courts Discussion Of the
Franchise Question.
MANY QUESTIONS DISPOSED OF.
Decision, Freed From TechnfcaIf-
ties, Gives Complete victory for
the Corporation--rhe Proposed
Ordinance IL vaiid-No Fraud Can
he Found In the Proceedings
General Arbitration sumcient.

A copy OF the opinion Of the supreme
court In the case OF w. u. Wood et al. vs.
the City OF Seattle et al. which Involved
the validity OF the franchises owned by
the street railway company. was received
yesterday from Olympia The opinion.
which was written by Justice Fullerton,
Is said by members Of the bar 10 be a
most scholarly production, and was read
with great interest by all who had an
opportunity
The opinion begins by quoting The pro-
visions OF the city charter OF Seattle re-
lating 70 franchises for street railways.
and this r. followed by a Statement OF
the various steps which were pursued by
the city council In connection with the APP
piication Of Messrs. Iowman and Furth
up 70 the time that the suit was begun.
Reference Is made 20 the fact that por-
lions OF the routes named I'm the ordi-
nance are covered by existing street rail-
ways operated under old franchises. The
several sections Of the franchise which
were especially relied upon by the plain
tits as invalid are set forth mt length
In the opinion. They are the section per-
uniting the grantees to use existing
tracks by making them conform TO the
provisions Of the new franchise, the arhi-
tratlon section. and the section requiring
existing franchises 10 be released to the
city In case such tracks are used
Reference Is then made to the complaint
filed when the action was begun, and the
several allegations are briefly stated. Be-
fore passing on the merits OF the con-
trovcrsy the court took up motion 10
dismiss the appeal which was interposed
By the plaintiffs. their claim being that
the appeal should be dismissed because
Ut the time II was taken the ordinance
had not been finally passed In favor OF
the defendants Luwmnn and Furth. and
"A a mt - H.. .
case That the appellants had a material
interest IN the franchise. The court de-
MED the motion. saying:
Motion 10 Dismiss Denied.
Where u appears on the face Of the
rcrord tfat the appellant had an appeal
tilna3 fna Judgment appealed from Is en-
ferret against him the presumption Is
that this interest continues until his
come before that tine only by an afYirma-
tive showing appearing either upon the
race ~ the record or by cxtrinsic evidence
that such interest has ceased 10 exist
~ nothing appears IN the present record
denied"
In taking tp the discussion ~ the NOR
Hs nf the case. the court said:
The principal contention Il that the
proposed ordinance has the eject az ex-
tending the time OF certain Of the street
railway ffanrhises now existing IN the
city OF Seattle. and II thus IN violation
% Section 20 OF Article ~ OF the city
reartcr. The learned counsel for the re-
sponden's take the position, at least we
are able to draw no other conclusion
from their arguments, that u matters not
whether the ordinance granting the new
Franchises contains matter totally nj var
Hnce with the conditions of the ordi-
nance granting the existing franchise
81 Whether re franchise be granted TO the
pofsprn owning the existing franchises or
put NJ ~ auction and sold 10 the high
esi bidder. OF whether the ordnance pro-
siars fot ~ en,ire system OF street raii-
ways @hicb may be constructed without
reference 90 the existing system II Ia
nevertheless. IN effect but an extension
n TIE time Of the existing franchises. No
irnH az u permits the tangible property
OF the street railway system now being
operated under existing franchises. 10 be
used Ia the new system OF street railways
70 he operated under the new franchise !"
number OF paragraphs nom the plain
TINS brief. giving their contention. are
given ~ fuli. and the court answers them
az follows
Plaintiffs Conteatiens Discussed.
This reasoning "a seems TO us NOT
only assumes that the tangible properly
used ~ the operation ~ the railway sss-
tenn aud the rtght.of-waN by which II Ia
aperated on the streets ~ the municipal
Ns Shr franehise~-arc ono and the Same
thipK. hut u Assumes that the city OF Sc
attic II without power. either To grant a
new franchise for railway along a street
upon which there Is an existing railway
operated under an existing franchise. or
e accept III permit a voluntary s,rren-
der " the existing franchise
III ought not 20 require argument 10
prove that the franchise under which a
street railway r. operated h separate and
Distinct from the tangible property used
II the operation OF that railway the
franchise, white !, IL property. II IN ia
nature hut permit ~ use the streets IN
the municipality In a particular way Tor
particular purpose The tangible prop
erty the railway tracks the ears ana
other eauipment-ls but a part 81 the
means necessary to a successful opcfati1Y
ss The railway system. and can no more
hs part II the franchise under which
The sNstein T. being operated than ran
the labor ~ tho individuals gho control
ana direct tts operations Neither dagS
the city, by the mere grant ~ = franchise
for the operation % A street ralWav anon
It's streets become the owner W the tan
Rthlc property used IN the operation IL
that railway Nor, unless the ordnance
xfantinE the franchise AZ expressly prN-
stfrs can Il become sueh owner rs fhe
forfeiture er termination by Limitation ~
tho franchise
"As none 81 the ordinances granting the
franchise which the Proposed ordinance
Permits q 10 surrendered contain sueh a
rrgylrlon, the ianrie'e nropnFty g The
railway aysseu " stsch surrender bs
made. viii eoNtinuc 80 b. the property al
80 then owners This being true thssre
can te NJ more reason faf saving thar the
eAntlnuad ase ~ This tan'sl0ic property is
tAe enatlnued use ~ ths franchise fhan
there can M f0e saving that the sac 81
any property az NkN Kind wu3liN have that
e~tNt u Is Nn'e upon the theory that
the tangible property - she railway sys-
sem aud tho franchise undag which it Is
t-ioE operated aTV one and the same
thing that Il car BE- stiA that che erntin,
eea use ~ tho one ~ the continued usr ol
tNe other
taduc Importance Gtyra.
we think counsel have attached undue
importance rs this pruFl Sfon ~ the pro-
posed ordinance HAD u not been pro-
vited that the rxiStiax railways on tho
surrender ~ the franc htNns under which
they ARE hstng operated shall ne dee useA
new construction ~ the extent that they
shah be made 20 conform % the require