The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1904-07-12
CITY RAILWAY WINS
IN FEDERAL COURT
Judge Lochren Decides 1t Has
Right to Construct Extension
Under Horse Car Ordinance

That the cityrailway company has a
right, under its present powers, to
construct its proposed extension along
Rondo street without rendering itself
liable to new restrictions or condi-
tons, was decided yesterday by Judge
Lochren, of the United States circuit
court. in the case of Howard D. Bailey,
OF Superior, Wis, against the city rail-
way company. Mr.. Bailey asked that
an injunction be issued restraining
the company from laying it's tracks
aIeng~~Rondo street. west of Dale
street. in front of his property
The case was argued throughout the
morning and a good part Of the after
noon. Judge Lochren rendered an
oral decision, only the general nature
OF which can be presented until
written decision has been filed.
The plaintiff was represented by
Scion L. Perrin, of Superior, and Nor
ton Barrows. Of st. Paul; the defend
ant by NJ. d. Mum, it's regular coun-
sci. Vice President C. G. Goodrich, of
the railway company. was also pres
ent. The city attorney did not ap
pear. --.-
-Messrs. Barrews and Perrin main
tanned that extensions of street rail-
way lines by ordinances are limited
to the streets designated; that the So
called ''horse carr ordinance of 1872
has elapsed by non-uSer; that the
present city charter imposes on the
railway company certain conditions,
including the payment of a gross earn
fngS tax, which conditions must be
observed If any new lines are con-
structed in ST. Paul.
40 Contentious of Plaintiff
Mr.. Barrows, tracing the various
grants of authority to the company,
declared that the ordinance of 1872
gave authority to operate lines by ami
NAL power only. Ordinance 1927,
passed in 1889. gave authority to OPP
crate electric lines on certain streets,
and was, in effect. a substitute for the
ordinance of 1872. In any event, the
ordinance of 1872 had become void by
reason Of non-uSer, electric railways
having superseded horse railways. Or
d1nance 1902 gave authority to con-
struct and operate electric lines on GER
tain streets, but these streets did not
include Rondo- street west of Dale
street.
Furthermore, Ordinance 81, of 1872,
was repealed by the provision of the
city charter that any franchises not
used for five years shall be void. New
extensions, If made, must be made I'M
der the conditions of the charter.
For the company, Mr.. Mum insisted
that the effect Of the 1891 ordinance
was to confirm the ordinance of 1872
ono. SD and to confirm all the author
ity given in 1872 to build lines ON all
streets except certain streets named.
: The legislature had Incorporated in
certain acts. the whole ordinance of
1872, and had ratified that ordinance
and confirmed all the powers which
the ordinance granted. The courts had
held that When a contract with the
city had been ratified by the legisla-
ture, such contract could not thereafter
be amended by the city council
ID When. in 1892, after the use of cleo
tricity had begun the city ordered
horse car line under the ordinance of
1872. the city thereby admitted that
the ordinance was still in force re-
CARELESS of the fact that electricity
had been substituted for horse power.
The ordinance of 1872 had never been
made void by non-user.
Judge Eochren's Decision
Judge Lochren decided in substance:
The right to build the proposed ex-
tension is claimed under Ordinance 81
passed in 1872. In the case of Nash VS.
Lowry it was held that this Ordinance
81 constituted a contract between the
city and the street car company. In
1889 Ordinance 1927 gave the company
the right to build electric lines over
certain streets. Section "a of that or
dinance provided that, except as to
lines on certain streets named in an
other section, the ordinance did not
abridge any franchise previously
granted to tie company. 1t is clear
that Ordinance 1927 was not intended
to do away with Ordinance 81. Up to
r the passage of Ordinance 1902 there
was nothing to indicate that the COM
pany had given up its franchises un-
der Ordinance 81, neither was there
anything to that effect in Ordinance
.1502.'
w The charter took away none of the
franchises of the company. Any at
tempt so, to do would be uncenstitu-
tienal. -..
Judge Lochren's decision does not
settle the question finally, inasmuch as
two suits involving the same point are
now before the state courts