The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1904-09-04
MICHAEL ATTACKS
STREET RAIL Way
Corporation Attorney Declares
Company Has No Right
on the Streets

In his answer to the application of
the St Paul City Railway company for
an order restraining the city of ST.
e Paul from interfering with the con-
struction of additional street railway
lines and their operation, filed in the
United States circuit court yesterday,
Corporation Attorney Michael declares
that the company is operating its lines
without an effective franchise and
that therefore it is subject to any rea-
sonable regulations the city may de-
eide TO enforce.
1t is held by Mr.. Michael that all the
= ordinances and all the legislation upon
which the company relies to enforce it's
right to the use of the streets are de-
fective; that the city council never
possessed the power to give the privi-
leges claimed, and that the efforts 10
cure defects by acts of the legislature
failed to accomplish the purpose in
tended; and that, therefore, the city
is not, as is charged by the company,
attempting to unlawfully prevent the
construction of new lines of street rail-
way, on to prevent their operation; and
that, therefore, the United States court
is without jurisdiction.
In an answer of more than 10000
words Mr.. Michael gives a compre-
hensiVe resume of all the legislation
and city council ordinances, under
which the street railway company
claims the right to use the streets,
and argues that there is in each meas,
ure come inherent defect, and that
therefore the company is really making
use of the streets without due author
ity; that the poles and wires danger
ously cucumber the streets and create
a common nuisance, and that therefore
the case should be dismissed and the
costs charged to the plaintiff COM
pany.
Case TO Be Tried on Its Merits
The filing of the answer brings the
city into the case in the United States
courts as a party to the suit, which
Will now go to trial on its merits. When
the company applied for a restraining
order and the city demurred, Judge
Lochren overruled the demurrer and
gave the city until Sept to file an
answer.
The fight really concerns the right of
the city to enforce the 5 per cent gross
earnings tax against the company, ac-
cording to provision in the recently
adopted charter, and the corporation
attorney takes the position that the
city possesses the power to collect the
tax If new franchises are granted for
extensions, as the franchises and
charters, rights and privileges hereto
lore granted the company are without
force.
There are two ordinances under the
provisions of which the street railway
claims the right to extend the tracks
without asking for or receiving permis-
sion from the city, The first, being
known as ordinance 81 afterwards en-
acted as law by the state legislature,
gives the company the right to con-
struct and operate horse car lines on
the streets of st. Paul. There is no
limit as to time or location. Mr.
Michael holds that this ordinance and
law. which has often heretofore been
denounced as invalid by the company,
has in addition been abandoned, and by
dlsuse for the past thirteen years all
rights assumed to have been granted,
have been forfeited. In addition it is
claimed that the city council and the
legislature did not possess the power
to grant such rights.
1t is claimed also that the horse car
lines that were constructed were put
down without authority from the city,
and that the only line ever ordered by
the city council was not built.
Council Did Not Have Power
Ordinance 1927, which gave the com
pdlly Tie IISHl 10 operate electr1c
street railways, displacing the
horse car lines, is declared to have
been passed without the necessary
power so to do being vested in the
council.
1t is denied that the electric lines are
the same as the horse car lines, but
that the tracks for the horse cars were
removed and other and different lines
laid. Ali other acts of Importance
to the street railway company are
either declared to have been irregular
or to have been improperly passed.
Ordinance 1884, important to the COM
pany, did not receive the necessary
ree-fourths vote of the city council.
The position of the corporation at
torney is that while the city may not
now possess the right to impose the
gross earnings tax, it will possess the
power if the company receives the
right to extend even one of its lines,
as 1T will be necessary to secure the
permission of the city council before
the extension can be made Although
the company does not possess the vest
ed right to use the streets the conten-
ton that such is true is not involved
in the case in issue. It will be neces-
sary, therefore, contends the city for
the company to make terms before it
proceed with the improvements con-