Los Angeles herald., 1905-07-09
History Of Case

the city is brief The franchise was adj
vertised for sale and on February s,
1906 sold by the council to A. N. David
son, he being the highest bidder and
Offering 300 for the privilege. He i'm
mediately paid the money, contract
was drawn and struck off by the coun-
Gil and the money deposited in the city
treasury.
The franchise was granted for thirty
one years, as specified by the state
law at the time. The granting of the
franchise for such a length of time
was vigorously opposed by Mayor Nc
Aleer and when the contract ordinance
was sent to him he held it for the full
ten days allowed by law and during
that time the state legislature ratified
the new amendments to the city char
ter making the length of franchises
twenty-one years. Thereupon the
mayor vetoed the ordinance and re-
approval
No further action was taken by the
city's legislative body as the council
men believed the incident closed. They
notified the purchasers of the franchise
to come for their money. The pur-
chasers replied that the sale had been
made and that they were satisfied.
In view of the fact that the new
amendments were in effect the coun
cilmen did not see their way clear to
M ee tba ordioapoe ovar tha mo vor'r
veto.
A short time ago the new line of the
Los Angeles Railway company, of
which the franchise in dispute was a
part reached a point at which the
officials desired to begin work in the
disputed territory. The company,
through A. N. Davidson, notified the
council that it intended to begin con-
struction. The council thereupon said
the railroad company was defying the
citys legislative body and instructed
City Attorney Mathews to institute
proceedings to prevent the railroad
company from building a line without,
as 1t was characterized. franchise
The city attorney entered suit, and
the result has shown itself to be a
general attack all along the line.
Brief Well Supported
Attorneys who have examined the
brief declare that Judge Chapman Is
supported in his conclusions by a thou
sand authorities and in the document
he cites several hundred authorities
and decisions from the supreme court
of the United States and the supreme
tribunal of California and many other
states.
In the brief Judge Chapman cites
the records to show the exact procedure
in the case, viz: selling of franchise,
making of contract and payment of
money February 6, 1905. The brief also
recites that the mayor bases his opinion
on the adoption Of the charter amend
ments by the legislature as occurring
on February Z. The contention is made
that to both publications of the records
Of the last legislature February Is is
mentioned as the date upon which the
ratification occurred.
After reciting the mode of procedure
as prescribed by the state law, the brief
quotes the statute as follows: And
then upon the filing of and approval
of said bond the said franchise shall
by said governing or legislative body
be granted by ordinance to the person,
firm or corporation to whom it has been
struck off, sold or awarded
The brief continues: THE statute is
imperative. There is no option about
it. Neither the council nor the mayor
had any option in the case.
Right Of legislature
"The right of the legislature over the
public highways and to grant the use
thereof for public convenience and
travel is undoubted. In this country
there is no franchise which is not de-
rived from law of the state, and the
power to grant franchises does not ex-
list in the local authorities unless un +.
mistakably conferred by the legislature.
These principles are established by
numerous authorities, and are stated
with clearness In the work of Nellis on
Street Surface Railroads. Page 60 of
the work mentioned is quoted as fol-
lows:
"The ordinance and incidental pow-
ers Of a municipal corporation are not
broad enough to include the power to
grant street railway franchises, where
by any man may possess a right to
which the public generally is excluded.
It is misconception of the law to SUD-
pose the railway company derives its
power to construct a railroad from any
ordinance of the city. All of it's au.
thority is conferred by the state The
city has delegated to It the power TO
say in what manner and upon what
conditions the company may exercise
the franchise conferred by the state,
but nothing more"
The decision OF the supreme court In
the 5lst Cal, page $50. Market Street
Railway company VS.. Central Railway
company. Is cited as follows:
The maintainence OF horse railroads
and the running OF cars upon the pub
hc street OF San Francisco designed for