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

streets and confer privileges exclusive
in their character and designed to be
perpetual in duration"
In making use of the word "exclu-
sive" Mr.. Cooley has reference to the
exclusive use of portion of the
streets; street railway has the ex-
elusive possession of that portion of
street necessary to support it's ties,
rails ETC.; telephone company has
the exclusive use of that portion of
the streets upon which its poles and
other appliances may be set; the same
Is true as to the telegraph company,
water or gas company has exclusive
possession of the use of that portion
of the street in and upon which is
laid its mains for the distribution of
Its products and while engaged in ex-
cavating to place the mains or repair
the same it also has an exclusive use
of SO much of the streets as may be
necessary; no one else can rightfully
use that portion of street conveyed
to a gas company, by a valid con-
tract, upon or in which its pipes are
laid.
Mr.. Cooley quotes with approval, the
language of the New York court in
Mflhau VS.. Sharp. cited above and
hereinafter referred to.
In Nash VS.. Lowry, supra, the Min
nesota supreme court had under. con-
sideration an ordinance of the city of
st. Paul granting the use Of it's streets
to street railway company and Gil
fillan c. j., says: 1.-THE ordinance
when passed, was invalid as an ire
vocable contract; for it is undoubt-
eddy the rule, in accordance both with
principle and authority, that munic-
ipal corporation entrusted with power
of control over public streets can not,
by contract or otherwise, irrevocably
surrender any part of such power
without explicit consent OF the legis-
lature, because such power is In the
nature of a trust held by the corpora
ton for the state"
In Eichols VS.. Co., Elliott, C.. j.. for
the Indiana court says: 1.-The right to
SO use (for street railway the
streets, is franchise, and such a
franchise as can only exist by force
of legislative grant. The power to
grant franchises is a high legislative
trust, and 1t is grave question wheth-
er the legislature can delegate it to
municipal corporation. We are not,
however, called upon to decide wheth-
or tho 1opic1otnra NON 5olo,,&o At.
power but we are required to decide
whether such a power is embraced
within the ordinary and incidental
powers usually conferred upon, OF
possessed by, municipal corporations.
The city of Evansville was organized,
and is acting under, a special charter
granted prior to the adoption of the
constitution of 1852, and possesses the
ordinary rights and powers of a mu-.
nicipal corporation. There is no pro-
vision in the original charter, nor in
any of the various acts directly amend
ing it, comforting power to grant to
either steam or horse railway compa-
MES, the right to use the streets of
the city. The ordinary and incidental
powers of municipal corporation are
not broad enough to include the pow
er to grant to railway company the
right to lay tracks and conduct the
business of transporting passengers
upon and over the streets of the mu--
nicipality. Such power is an ex-
traordinary one, and one which can
not be implied from a charter of
municipal corporation which confers
only the usual powers ordinarily be-
slowed upon such corporations. We
are speaking now, not of the intersec-
ton and crossing of streets by rail-
way tracks, laid down in building lines
of road which run through the city,
but of railways exclusively doing bust
ness in the city and occupying the
street for that purpose"
Franchises it is conceded, can not,
as general rule, be granted by such
(municipaD corporation, and it is.
clear that the privilege of making
railway or turnpike, or establishing a,
ferry or taking tolls for the same is q
franchise. Contracts undoubtedly
may be made by such municipalities
to the extent of the authority confer
red for that purpos by the legislature,
but the granting of franchise is not
the same thing as a contract and the
exercise of such a power can not be,
upheld or indicated as falling within
the same rule as the power to make
contracts. Authority is conferred up-
on municipal corporations by the code
of the state to grant privileges in the
use and enjoment of the street but it
would be a very forced construction
to hold that the power to grant such
franchise for a street railway, for
twenty five years is included in that
provision; independently of those pro-
visions 1t is quite clear that the imu-
nicipal authorities OF the city possess
no such power as that supposed by
the respondents. Such corporations
are usually invested with the power
to lay out, open, alter, repair and
amend streets within the corporate
limits; but the rule is well settled,
that by virtue of those powers, with
out more. they cannot grant to an as
ISOLATION Of persons the right to con-
struct and maintain for a term of
years, a railway in one of the streets
of the municipality for the transpor-l
tation of passengers for private gain
and that an ordinance or resolution
OF the authorities granting such a
right is void. Getting Milhau VS..
Sharp. "a N. Y. GIL; People VS.. Kerr,