Omaha daily bee., 1909-10-21
Council Bluffs
FRANCHISE NEAR IT'S END
rs . Ieais Of Life if Under Grant Of
II hteen Eighty-six.
LATER ONE HELD TO BE INVALID
Attorney General and city Solicitor
Report ON Rights Of street RaII-
way Company I'm city Of
Council Bluffs.


council bluff.
II the Omaha g. Council Bluffs Street
Railway company is operating In Council
Bluffs under the franchise granted to the
Omaha q Council Bluffs Railway and
Bridge company October %, 1856. It's rights
upon the streets named In the charter ordi-
nance Will expire in two years.
III the company. however, claims to be
operating under the franchise granted the
Council Bluffs, Lake Manawa & East
Omaha Construction company, in Decem-
Der, 1897 which was assigned TO the Omaha
g. Council Bluffs Suburban Railway COM
panyi the company has no rights upon the
streets OF Council Bluffs whatsoever, as
this franchise became void and invalid
many years ago.
Even under the franchise OF 1ss6 granted
to the oman g. Council Bluffs Railway &
Bridge company, the company has no rights
ION Avenue A and Fifth avenue.
This is the Substance Of the opinion OF
Attorney General II. w. Byers as ex-
pressed yesterday afternoon in a confer
ence with committees representing the West
End and West Council Bluffs Improvement
clubs at the Grand hotel.
city Solicitors Opinion.
City Solicitor Kimball agrees with the
attorney general with the exception that
in hts opinion the street railway company
has rights on Avenue A and Fifth avenue.
provided that the franchise of 1886 is sim
in force.
Mr.. Kimban sums up his opinion in the
following statement:
As. to the streets named in ordinance 15t
Che ordinance granting a charter to the
Council Bluffs, Lake Manawas & East
Omaha CONSTRUCTION company and ac-
tually used by the present operating COM
panies. the tracks were all laid under the
old ordinance, with the exception of Twen-
ty-eighth street from Avenue g to Avenue
Q n Sixteenth avenue and Sixth street
from Main street to the city limits. If the
companies are operating under the old ordE
rance such tracks cannot be said to have
been laid within the time@fixed in the ordE-
nance. II the company has abandoned the
old ordinance on these streets and claims
to be acting under ordinance 154. still the
tracks were not laid under this ordinance,
but under the old one. As to the use OF
Sixteenth avenue and Sixth street to the
city limits the rights are dependent upon
whether the franchise is sufficient to grant
such right.
The whole franchise and rights there.
under depends so much upon the determine
ton OF facts and conditions and the appli-
cation of legal propositions dependent
thereon that until a court of competent
jurisdiction has determined that the fran
chise is valid and subsisting the holding
companies can be said to have no sub
stantial lights hereunder to use the streets
OF the city OF Council Bluffs to maintain
wires, poles and electric apparatus with
which to operate q street railway. That Is
70 say, It's rights under the said ordinance
finding OF the court upon questions in dis
pute, some of which have been Indicated
above.
COnfers with Local Men.
Those present at the conference with the
attorney general at the Grand hotel were
Attorney Spencer Smith, from whom Mr..
Byers had secured some of his data, At
torney w. H. Kilipack. Dr. J4H. cieaver,
o. ]. McManus George b Hardel, w c.
Boyer, prssidsnt Of tbs, West End LIN
provemeRt club. J. IL o,Nell, secSetary OF
the West Council Bluffs Impr6yeaiesntl eiab
and General E.F. Test. with Mf, Byers
was his assistant Charles s. Williams OF
Des Moines, who had assisted IA the in
vestigation OF the status of the street
railway franchise in this city. Prior TO the
conferences at the Grand hotel the attorney
general met with City Solicitor KimbaIl
who later I'm the day made public his con.
illusions in the matter, which will be sub
mitted in the form Of a report to the city
council at Its meeting next Monday night.
Regarding the ordinance of 1886 grantine
to the Omaha & Council Bluffs Railway
q Bridge company a charter Mr.. Byers
said:
SAANA NAiAo OAnAldlCG, INSOFAR as INFORM
alton | have been able to secure from the
records goes, the Omaha & Council Bluffs
Railway s. Bridge company has the risht
to operate until 1911 on the streets spec.
ifically named In the ordinance. On othe,
streets on which it has been operating n
has no further rights"
Suggests a Compromise.
Mar. Byers, however, stated that in his
| AnfnNan The n-..L. a
way q Bridge company surrendered ali IL.
rights under the 1886 charter when it Sc.
cured the passage OF and filed It's aceep.
lance or the fifty-year franchise grantee
In the ordinance passed September 20. 1897
which was subsequently declared tnyalIt
by the courts, This was, however. a cues
ZION which the courts alone could decide
but the company's rights to operate on IN,
streets OF Council Bluffs would exnirs I,
october, 1911. as he felt certain thai n,
court would hold tina the franchise grants,
the Council Bluffs. Lake Manawa q Has
Omaha Construction company. which wa,
subsequently assigned to the Omaha 4
Council Bluffs Suburban Railway oor,
pany, was sim valid. This franchise va,
for a period Of fifty years and this alone
Mr.. Byers said, was In his opinion sur
ielent to make 1t void and Invalid.
Mr.. Byers advised the thai n
his opinion nothing could be gained by taxi
ing the matter into the courts at this tim,
as any suit which might be institute,
against the company could not be deter
mined before the expiration OF It's rights
II any existed under the 1885 charter a
1911 He suggested that some adiustmen
ought to be reached between the oity an,
the company as to the future and as 70
franchise which would impose condition
which might be demanded by the peopIe :
the city.
Streets Named ia Franchise.
In his report Mr.. KimbaIl says relative I,
the question of streets authority to US
which was granted under the ordinance 0
1885;
The ordinance of 1886 granted authorit,
to construct, equip. maintain and operat,
street railways for the term OF tWenty-fiV,
years upon broadway, from the Missouri
river north to the city limits; South Firs
street and upon Graham avenue by Way
OF sixteenth avenue: High street, Thru
street; Tenth avenue and Sixth street bacl
TO Broadway. and such other streets, ave