The Saint Paul globe., 1904-10-25
STREET Rail WAY
DEFEATS THE CITY
Judge Lochren Holds Its Fran.
chise vaitd and City is En-.
joinedFrom interfering

Judge Loehren, in the United States
circuit court, yesterday held for the
| street railway company in its suit TO
enjoin the city of ST, Paul from inter-
fering with the alleged rights of the
street car company to build extensions,
or in any other way proposed by the
| city,.
The decision, rendered verbally by
Judge Lochren on conclusion of the
arguments, which had been in progress
for three days in his chambers, holds
J, for the complainant. The principal
i point in the case on which the de-
cision was based is that the city had
| not established it's contention that by
a non-user of the animal power fran
chise, granted the company under the
| terms of ordinance No. al, the COM
pany was without a legal franchise,
! and is in effect mere trespasser on
the streets of ST Paul.
| On the contrary, the court holds that
/ the terms of the ordinance have been
continued and conf rnned by subsequent
! legislative and municipal acts and that
| the franchise is a valid one. The COM
pany, under. the decision. is confirmed
in its contract rights. under ordinance
| 81, as reasseEted and enlarged by the
legislative acts of 1858, 1872 and 1888,
and ordinances 1927 and 1902. Under
| the formeF1the change was made from
animal power'to electricity and under
the latter certain provisions were IN
| corporated for the laying of under
ground wires and conduits, poles and
! other operating contrivances- for Ger
| tain streets.
Judge Locf1ren's decision was not
unlocked for; Ety Corporation Counsel
| J. c. Michael, and he Immediately gave
notice of a motion for stay of pro-
| ceedings, PENDING the perfection of an
appeal to- "a higher court. stay OF
ninety days was at once granted by
the federal judge and the case will be
either appealed to the United States
| circuit court fof' appeals or the United
| States supreme court The court, to
which the appeal is taken is at the OPP
| tion of the appellant city, for as con-.
stitutionaI question involving the COM
| pany's alleged vested rights is involved.
the city has. the right to appeal direct
| to the highest court in the land. Mr..
| Michael and his assistants express con-
fidence in the final outcome Of the case
| in the higher court.
Judge Loehren's decision was given
| verbally at the conclusion of the argu-.
ments. The court expressed the be-
| lief that, no matter what decision was
/ reached in his court the case would be
! Immediately appealed, and he there
fore felt that the interests of. justice
| demanded a speedy decision more than
| the particular termss Of a decision. In
part Judge Lochren said in deciding
the casett
.Y.e.J Judge .Lochren's Decision
1t is adnfttea1 in the argument, as
proceedings, by way. of foreclosure and re-
Organization, the rights, powers and fran
jschises of this corporation created by these
prior acts were devolved upon the present
| Complainant, and that the present COM
plainant has those rights, powers and
! franchises at the present, time, and 1s
therefore a. corporation authorized TO build
and operate Zines of street railway in the.
| city of ST. Paul
It appears from the pfeadings that on
| Jan. g. 1872. ordinance No. 81, which had
previously been passed on the I'D of
| the month, was approved. and that it was
| upon that sserdinanee, and the powers
| therein granted, that the corporation, as II
| then existed, commenced the construction
| and operation OF the street railway. By
| the terms of that ordinance the corpora
| ton was confined to 1.-The use of animal
power.
Object of Limitation
The object df that provision is made
apparent from bthe clause which 1mmedl-
ately folleWs the statement that only AMI
NAL power, shall be used, containing the
prohibition Of any locomotive or engine.
propelled by steam upon the lines OF the
railway. II IS conceded and is a fact
within thelgeneral knowledge of everyone,
that the only power then In use which
| propelled the-gyehicles ip use on any kind
0f1 1oi dS w other animal power or
steam power, The objections to the use
of steam bower are obvious. and the re-
obviously for the purpose of avoiding the
use of other Objectionable power. Thls
ordinance gave the street railway com.
pany the right to construct its lines OF
Aus Afterwards. i. ara H 1889 when electricity
had come into tuse, at least experiment
ally, for pfspelling' vehicles ON street rail-
Ways ordinance 1927 was passed which
granted tas the street railway company
the right to construct railway pfopeIed
by electricity upon certain streets IA Inc !ne
ordinance specified. and in consideration
Gas it is stately of the grants In tnls or
dinance the railway company, undeT
section 161of the ordinance. waved ana
surrendered all rights which they had
acquired to lay street car tracks upon
several other specified streets IN the CITY.
No Franchise withdrawn
II Is objected On .LI1S pat SAhN
spendent that the complainant IS not
corporation II think that objection can
not be sustained. The corporation OF the
complainant is traced back to the act OF
1853, so far as the creation of a corpora
tion is concerned which act provides
for the building of railroad by the cor
poration therein created from some place
in the city of st. Paul, to place at or
near the city of st. Anthony, IN KAN
sew county. The terms used In the act
would seem to infer that it was an ofdl-
nary commercial railroad which was IN
tended. There is only one line speched,
it is not described as being a street ram
way but simply railroad, and tnlnk
that the ordinary understanding OF tnaL
term would be a commercial railroad.
But the act was amended by the act OF
March f. 1885, in which further powers
were granted, 1t was given power 70
construct railway from the city OF 81.
Paul, in the county of Ramsey, TO the
western line of said county of Ramsey, IN
the direction of the city. OF ST Antnony,
in the county of Hennepin, and also the
full right Permission, privilege, power
and authority to lay out, establlsh, con-
struct, maintain. use and operate line
of railway with single or double tracks,
switches. side tracks, turnoutS ana al,
other necessary or convenient hxtures ana
appurtenanceS in, upon ana along any
and all of the streets and bridges, Wltnin
the present or. future limits OF SAID city
of. ST. Paul, in the manner, Tor Inc Pc
rieds, and upon the terms and conultlons,
and subject to all the conditions OF a
certain ordinance of said city Of st. Paul
passed on the 18th day of December, 1851.
STREET Railway Indicated