The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1906-02-09

congress was acting as the trustee or
conservator of the future state.
(C) Congress Contemplated Munici-
pality Of Limited Power.
In Lewis VS.. Pima County, 1856 u. s.
"a, the supreme court had under con-
sideration this particular section of
the revised statutes in determining the
validity of the act of the territorial
assembly of Arizona, authorizing the
issuance Of 5000, 100000 worth of bonds.
of Pima county to aid in the construc-
ton of a railroad; among other things
the court said: Nov, unless a debt
thus incurred in aid of the construc-
ton of the railroad can be said to be
an obligation necessary to the adj
ministration of the internal affairs" of
Pima county, it must necessarily fol-
low. irrespective of every other con-
sideration, that the legislature exceed
ed its powers in authorizing and re-
quiring the county to issue its bonds in
exchange for those of the railroad
company in question and that the
bonds are void. The question is too
clear for extended argument. BY the
internal affairs" of municipal cor
poration, in the administration Of
which the legislature could alone au-
thorize it to incur debt, was undoubt-
eddy intended such business as mu-
inequalities of like character are usual
ly required to engage in to fulfill their
proper functions and to effectuate the
objects of their charters. 1t could
never have been contemplated, how
ever, that this power would be used to
incur obligations in favor of railroad
operated by private corporation for
private gain, though also subscribing a
public purpose. Clearly such debts
would not be incurred in the admins
tration of the internal affairs of the
county"
The case of Utter VS.. Franklin, 172
U. s. 416, was an application or petit
ton for writ of mandamus to COM
pei the governor and other officers of
Arizona, acting as loan commissioners,
to issue certain bonds in exchange for
the bonds issued by the county or pima
and which were held invalid and void
in the case of Lewis VS.. Pima county
supra.
On June 6, 1896, congress Confirmed,
approved and validated" the bonds by
the supreme court in the above enti-
tied cause held void. And concerning
the power of congress to validate the
bonds which when issued, were illegal,
the court says, Brown writing the
opinion, all the Justices concurring:
(423) 1--WE think it was within the
power of congress to validate these
bonds. Their only defect was that
they had been issued in excess of the
powers conferred upon the territorial
municipalities by the act of June s,
1873. There was nothing at that time
to have prevented congress from au-
thorizing such municipalities to Issue
bonds in aid of railways and that
which congress could have originally
authorized, it might subsequently con-
firm and ratify. The fact this court
had held the original Pima county
bonds invalid does not effect the ques-
ton. They were invalid because there
was no power to issue them. They
were made valid by such power being
subsequently given and it makes no
possible difference that they had been
declared to be void under the power
originally given" "
These two decisions (s'Lewis vs..
County and Utter VS.. Franklin), estab-
lish almost beyond question that it
was the intent of Congress that mu-
inequalities, to be created in the ter
ritories by the assemblies thereof,
should not be municipalities vested
with full and complete powers, but
that as contradistinguished thereto,
they should be of limited power and
authority.
1t we concede or establish that con-
gress In creating the territories, had
in mind a division of municipalities
into two classes of which one should
be endowed with full and complete
powers such as might be usual, con-
venient or proper and the other of
which should have only those powers
and privileges necessary to their local
administration" we have taken long
step toward the proper solution of the
first question presented to me by the
resolution for there will then remain
at most, for determination, two ill.,
quiries:
~ Is the granting of a franchise
or right to the use Of the streets Of
the municipality to gas company, in
perpetuity, the exercise of power or
privilege, necessary to its local adj
ministration?" and
~ Did the assembly attempt to
convey to the municipality such a
power.
Cd Power Exerted in GrastlnE fran
chise.
AS throwing light upon the first
question above stated, shall pass now
to an Investigation Of the source of
the authority exercised by munich
paltty in granting the use of the
streets to public utility corporations.
In considering this question it<must
be borne in mind that, as said before,
the territories are In the nature of mu-
inequalities; the legislative bodies
thereof exercise but q delegated pow
or; u the states 1t 10 true, the legis-
slature to some extent, exercises the
ppwer which may be considered to be-
delegated to 1t by the people, yet the
legislature of the states is vested with
full and complete power except as re-
strained by the constitution, whereas
the territorial legislatures or assem-
iblies as they are called, have the pow
or only as II is conferred upon them