The Telegraph-courier. [volume] (Kenosha, Wis.) 1888-1946, 1902-04-24
Sweeping Decision Of the Supreme
Court in Kenosha Case May Affect
Many Other Cities.
CITY HAD NO RIGHT TO ACT.
Court Holds That Public Franchise Can
not Be Granted to individuals, and on
This Ground Injunction Permanent.

The decision of the Supreme court
in regard to the suit of Mary Hale
Allen VS.. Gustav L. C1ausen was re-
ceived in the city this morning and
when the grounds on which the decis-
ion was baseds are made public it is
seen that the decision does not in any
way turn on the points raised in the
lower courts but the court has held that
| the city of Kenosha had no right to
grant a franchise to private indi-
vidua1. The effect of the decision will
be sweeping one and many fran
chises in other cities will be made
invalid by the decision.
The decision, which was written by
Justice Dodge and concurred in by all
the.members of the court, was in part
as follows:
''It is general proposition that a
municipal corporation possesses and
can exercise only powers granted by
express words, OF those necessarily i'm
piled in or incident thereto, or those
essential to the declared purposes; not
merely convenient but Indispensable.
Any ambiguity or doubt as to the ex-
istence of power is to be resolved
against the corporation, and the power
denied. Another cardinal rule of con-
struction is that the grant of power
under specified circumstances or &C
companied by definite conditions or
limitations excludes that power other
wise. The maxim, expressio unius ex-
clusio alterius, is especially controlling
upon such legislation.
''The application of such rules of
construction to section 1862, Revised
Statutes, must, of course, result in de-
NAL of power in any city to grant
franchises to use streets for street
railway except to corporation organ
lied for the propose of operating such
adjustment under our statutes or to
persons who have right to construct,
maintain and operate street railway
"The last clause obviously does not
contemplate persons who have merely
the common right to do business, for
to that end the quoted words would be
meaningless; the Legislature must have
intended to limit such franchises to
persons distinguished from the great
mass of mankind by the qualifying
description.
IA glance at the history of this leg
islation discloses the probable exist
ence of class of persons so distin-
guished, as also strong proba bility
of Legislative purpose to recognize
that class. The first delegation of
such power to municipal corporations
occurs in chapter 313 of the laws of
1860, which authorized the granting of
use of streets for street railways 'to
any street railway company organized
under any general or special act of the
Legislature of the State, or to any in
dividual or association of Individuals
In the revision of 1873 this act was in
corporated as section 1862, but changed
so as to confine the grant to corpora
tons. About two years after those
revised statutes took effect section
1862 was amended by chapter 219, laws
of 1881, by inserting as permissible
grantees, or to any person who has
the right to construct, maintain and
operate street railways The 1egis1a-
tive policy evinced by these acts seems
obvious; first, in 1878, to confine
grants to, corporations; secondly, to
recognize the existence of individuals,
who under authority of the law prior
to 1873 were already in possession of
rights to operate street railways, and
who, therefore, ought to be permitted
to receive further grants to enable the
development and extension of their
railways to meet the public needs and
convenience.
Kenosha Cannot Act.
"The descriptive words used with
reference to the permitted Individual