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

these associates would be the very def !
milton Of franchise. The privilege
Of making road or bridge, or Of es-
tablishing q ferry and Of taking tolls
5 from the citizens for the use of the
same, are among the most common
examples OF franchise. The board
has no powr to grant to any person
q franchise for transporting passen-
gers on the public streets, for profit,
for q single day, and the attempt to
do go was wholly void"
Comstock, j., in concurring says:
Taking, therefore, the whole ordi-
nance together and giving effect to 1t,
according to its terms and intentions,
1t is no less than an abrogation by
the common council of their powers
and duties over and concerning. the
public street and the surrender of a
considerable portion of those powers
and duties into the hands of private
individuals or of private corporation.
This the corporation of New York can
not do"
Mr., Dillon (sec. 71S) in speaking of
this case says: "The Judgment of the
court in the case just mentioned rests
upon the sound principle that the pow
ers Of corporation in respect to the
control of its streets are held in trust
for the public benefit, and can not,
unless clearly authorized by valid leg
islative enactment, I've surrendered or
delegated by contract to private par
ties, either corporate or natural"
The same action on the part of the
municipality came against before the
supreme court of New York in Milhau
vs.. Sharp, supra, and Seldom, j., voic-
ing the opinion Of the court says:
These privileges (the right to lay
tracks on Broadway, whether they
create a. monopoly or not, constitute
franchise. The granting of fran
chises was a part of the prerogatives
of the British Crown which on the
seerance of the Colonies from Great
Briton became vested in the people
and no franchise can be created in this
state without authority to create it
derived from the people through the
legislature The corporation of New
York can grant ferries (franchises)
because that power has been expressly
granted to it. but neither the corpora
ton nor the common council has been
authorized to create a franchise of the
character of that granted in the lreso-
luton under consideration. 1t follows
that the resolution, relating to sub
ject not within the powers of the body
passing it, is merely void. On other
grounds, without reference to its char
acter as creating the franchise, the
resolution is equally Objectionable.
1t amounted also to an immediate
grant of the street, and, it would seem,
Of freehold interest in the soil of the
streets to the defendants. The rails,
when laid, would become a part of the
real estate and the exclusive right to
maintain them perpetually is vested
In the defendant, their successors and
assigns. If the resolution should be
sustained, no power would remain in
the corporation to remove the railway
after its construction, If it should
prove to be nuisance, or to reduce
the rate of fare, If it should be found
unreasonably high, or to compel the
introduction Of any improved method
OF conveyance, If at any future time
such method should be invented, with
out the consent of the dfendants or
their successors; and the powers of
the corporation over the street in
many other respects would be abridg-
ed. Those powers were given to the
corporation as trust to be held and
exercised for the benefit of the public
from time to time as occasion may re-
quire and they could neither be dele
gated to others nor effectually abridg-
ed by any act of the corporate au-
thorities. Such trust Is, in that re-
spect, governed by the general princi-
pie that the duties of the trustee can
not be delegated without express pow
err for that purpose conferred by the
author of the trust. The resolution Is
therefore, void, for the reason that it
Apurports to create franchise which
the common council has no power to
create; to vest in the defendant an
exclusive interest in the streets which
the common council has no power to
convey and to divest the corporation
Of the exclusive control over street
which has been given to 1t as trust
for the use Of the public and which
it is not authorized to relinquish.
The law applicable to, the city of
New York and its rights to grant
franchise of this character continued
as established in the two preceding
cases until the amendment in 1874,
of the constitution of this state under
which amendment, power was granted
to the municipality to create and CON
vey. franchises and rights of this char
acter whereupont a franchise was
granted for Broadway, and the ques-
ton again came before the court in .
People vs.. O'Brien, Ill N. Y. Il; the
franchise then in question was with
out any express limitations and 1t, was
held by reason thereof to be perpetual
in it's terms and because OF the added
authority Of the municipality, to be
valid. The opinion is by Ruger. C. j., 4
and among other things he says: 1.-THE
titles to streets In New York is vest