Los Angeles herald., 1905-07-09

uEiiHiOfA VI AMC NuHANhAN 'NAAt u ANh~
nessee. Under the well settled law Of
Tennessee the power to grant a public
corporation a right Of way for the op-
GRAFTON Of public railroads, commercial
or street, on or over particular street
or public highway, resides primarily in
the legislature Of the state, but may
be designated to municipal govern
ments."
The brief states that when board
of supervisors, under the code, adver-
tIses a franchise for sale and bids are
made at the appointed time the body
having the sale in charge must sell the
franchise to the highest bidder, and
continues as follows:
Veto a Mlsdernesnor
THAT statute made II a nnisdemeanorI
In any member Of any governing body
who, by his vote, violated or attempted
to violate It's laws. The language Of
the statute is imperative. The franchise
or privileges must be awarded to the
highest bidder, and vote In vio-
lation Of these was misdemeanor.
What sense would there be in
saying that an ordinance making
such grant must go before the mayor
for his veto or approval, when to veto
was a misdemeanor7 That Is to say,
If he is any part of the legislative body
he has no choice under that statute but
to approve or go to jail"
Judge Chapman cites numerous cases
decided by the supreme court of Cali
fornia as regards the power of city
charter in the granting and limiting Of
street railway franchises, and In all OF
these cases it is held that franchises
are granted under the civil code as
enacted by the various legislatures ana
amended from time to time and not
under city charters
The brief continues: But there can
be no question, we think, as to the
right of the legislature to delegate to
municipal boards the power and discre-
ton to say whether railroads shall be
laid in the streets, and If so where and
under what conditions. The authority
to construct the road on any highway
or street is conferred by the legisla-
ture (Civil Code, sec. 465) subject 20
the condition that the consent of two
thirds of the members of the council
must be obtained before any street OF
avenue of an incorporated town can be
taken for such purpose" This case was
decided long after the charter of the
city of Los Angeles went into effect.
Continuing the brief states that in
the case of the Pacific Railway conf
pany VS.. Wade the court held that the
rights acquired by the railway conf
pany were measured by the civil CODE,
and this case was decided after the
charter of 1889 had been adopted. The
brief continues:
"It is undoubtedly true that no fran
chise can be granted except by legfs-
lative authority. A franchise is a
privilege emanating from the sove-
reign, and some act Of the sovereign
legislative in character. must be pro-
duced before title to a franchise can
be claimed. But we maintain that the
legislative authority is to be found in
the legislation under consideration, and
that the grant of franchise made In
pursuance of Its provisions by the
council is no more legislative than the
signing of a patent to state lands by
the governor of the state is legisla-
tive"
Says City Was Not Owner
"Let it be borne In mind that the
city never was the owner of this fran
chise. 1t is a privilege emanating
from the sovereign. The city had no
title to it; could not construct or oper-
ate street railway itself, but was the
agent of the state for granting. Bear
in mind that the whole purchase price
was paid and the equitable estate had
vested, and the state itself had di-
rected its agent upon the happening
of the conditions here, to make the
grant.
eve submit that II the city council
had never done anything but strike
off, sell and award this property to
the defendant and had received the
purchase money and the bond had
been given, an indefeasible title vested
without any further action by the city,
for under such conditions the statute
said in terms imperative, you shall
grant 1t, and surely in such a case
equity would have no difficulty in as
suming that that. which is done which
ought to have been done, and for the
doing of which there was no discre-
tion.'
City Attorneys Answer
For two days City Attorney Mathews
and Deputy City Attorney Goudge
have been working on the general
outline of their answer to Judge Chap
mans brief ana will begin the actual
writing Of their answering brief to-
morrow. The city attorney said last
night:
ST don't know how many authorities
Judge Chapman quotes in his brief,