Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1901-06-01

begins. This was Il case where the
statute of Arkansas authorized a mu-
nicipal corporation to contract FOR
the purposes of providing street rail
roads and comforting for the time
which may be agreed upon, the cX-
elusive privilege of using streets and
alleys of such city for such purposes.
The municipal officers of the city of
Pine Bluff made a contract with GER
tain parties, the substance of which
was that the said parties should have
the exclusive right in all the streets,
present and prospective. in said city
of Pine Bluff. for term of 90 years.
although the parties contracted TO
build in only one street in the city
unless the company should think pub
lie interests required it.
The court held that the municipal
officers exceeded their authority; that
they had no right to grant such cX-
elusive privileges to a company. in
any streets except such streets OF
which the company was in actual use
or it's equivalent, and further held
that the municipal officers had no au-
thority to delegate to the company
the question of whether public con-
venicnce required more than one
street.
And the court says: The city coun-
ell has not the power to agree that if
a contractor will build street rail
way on one street in Il city, he shall
be under no obligation to build on any
other street for 30 years. and that for
that period the city shall not itself
build such railway on any street in
the city. or authorize it to be done by
others. however much the public con-
venicnce and necessity may demand
it,"
And 1.-THE power and duty of deter
mining when and on what streets tina
public convenience requires street rail-
roads is devolved by law on the city
council. and that body can not refuse
to discharge its functions. or devoiVe
it on Il street car company, whose ac-
ton would be controlled by its own,
rather than the public interests.
We do not think this case is anala-
gous to the matter under consldera-
tion. in as much as the court there
nut a construction upon a statute and
upon a contract: a special statute OF
hat state. and contract under it.
Petitioners attorney also relies upon
a case in Montana where the supreme
court held that the operation of a
line of street railway which has aban-
doned. can not be specially enjoined by
writ Of mandamus. where the right
of the CORPORATION to use the streets
was given by ordinances OF the city.
granting it franchise and easement
by maintaining its railway in the
street subject to forfeiture for failure
IN operate." And ii was there held
that n distinction is to be made be-
tween street railway franchise
granted by the Legislature. and tn"
permission of a municipality to the
occupation Of its streets by railway
company, and the court says: The
latter is not "A franchise but a license.
which may be forfeited or abandoned.
Reliance is also had upon the rule Of
law laid down in Booths street Rail
WAYS. Section 60. where IL is stated
that the pcrmission 20 operate and con-
struct a street railway. although ac-
ccptcd by the company does not create
such an obligation as may he enforced.
either by bill or equity for specific per-
Torrance. or by writ OF mandamus.
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