Wauwatosa news. [volume] (Wauwatosa, Wis.) 1900-1948, 1904-05-28
Street Railway Franchise
Ordinance is Valid.
Judge Burnell Announces
His Decision in WauWa-
tOsa Case.
Action of Common Council SuS-
tanned.

Judge George w. Burnell. of Osh.
kosh, who tried the mandamus action
brought by Attorney Lynn 5 Pease OF
this city, for Imre Boos, DR.. Wendell
and Captain LeislS, during the year
1908, to compel the common council to
submit the street railway extension
franchise ordinance 10 popular vote
under the so-called Lenroot law, las
announced his decision and filed an
opinion with the clerk of the circuit
court of this county. The opinion dis
cusses the situation at some length but
fails to sustain single contention adj
vanced by Atty Pease. The intent of the
legislature is considered and the court
holds that the plain intent of the law
makers was to leave extensions of
existing systems in the hands of the
common council irrespective of the
length Of the extension. At the trial
Attorneys PeaSe and Turner endeavored
to persuade the court that the extern
sions which were not required by law
to be submitted were extensions OF
time rather than extensions in
length of line but Judge Burnell
says such construction does not seem
reasonably possible to the court.
1t was further contended by Mr..
Peasc that there was no existing street
railway line or system in Wauwatosa.
and the court after the query il
81 miles of street railway in small
place like Wauwatosa do not constitute
system, how many miles would il
take to make it such? holds that at the
time of the passage of the franchise
last August, there was a street rail
way system in Wauwatosa operated
and owned by the Milwaukee Light.
Heat Il Traction Company. As to an
other contention made in behalf O.
Boos. Wendell and Leisk by Attorne,
Pease. that the franchise passed las
summer by the Wauwatosa common
council was not an extension, the cour
uses some very simple illustrations
which will doubtless he comprehendeC
where legal technicalites might not
and the court concludes that the fran
chise ordinance was nothing but al
extension
Attorney Pease at the trial of tn,
case informed the court that the line,
within which the case was being trie,
were the same as those within whicl
the recent ease of YounSin VS.. 7. NJ
l.. II, Il T. Co, which went up to tn,
Supreme Court fromWaukesha county,
had beendecided
Judge Burnett briefly comments or
that ease stating the questions Their,
involved, but fails to show any decided
appreciation of this theory and dis
poses of this feature of the case by
declaring that the question decided il
the Waukesha case is one with which
his court has no concern in the Wan
watosa action.
On the question of ownership oil
franchises for existing lines, which
produced large amount of consterna.
ton at the trial especially with one OF
our former excellent citizens. now q
resident of Milwaukee, but who has
not permitted his city business to pre-,
vent him from trying hard to secure
two straight five cent street railway
fares for Wauwatosa people. the court
holds the REALTORS to the allegation.
in their own petition. which are to the
effect that the Wauwatosa lines ar,
owned by the Street Railway Company
although the question of ownership tn,
court holds was sufficiently proven al
the rial Every proposition advance,
by City Attorney Perry in behalf of tn,
action of the common council is sus
tanned. and the opinion concludes in
the following language:
" For the reasons set forth briefly
above the court is constrained to arre,
with the city attorney and the common
council, that the statute IN question
dld not require or AUTHORIZE a submits
sion of this ordinance to the people
1t follows therefore that the perempto
ry writ must be denied and iadgmen