The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1913-09-05

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office of the Attorney General,
ST. Paul, August %, 1913.-Arthur
Schaub, Esq, city attorney, Man,
kato, Mimi. Dear Sir: Your letter
of recent date, enclosing copy or
your opinion to your city council,
concerning ordinances Nos. AZ and
4S. has been handed to me for con,
sideration and reply. You inquire
whether we agree with the conclu-
sions reached by you in this opin-
ion.
The ordinances referred TO grant
to the Mankato Gas and Electric
company, it's successors and assigns,
the right and privilege of erecting
and maintaining gas and electric
plants; to supply the city of Man
kato and it's citizens with light,
heat and power and the right to
use the streets, alleys, sidewalks
and public grounds of said city for
the purpose of laying pipes and con-
duits and erecting such poles and
stringing such wires as may be
necessary for the successful opera
ton of it's business. Ordinance No.
4S fails to specifically limit the time
of duration of such franchise. The
franchise is not in terms an excfu,
sive one. Two questions arise:
"One. Is this franchise assign.
able?
Two. What is the limit of time
of duration of this franchise?
in your opinion you take the posi-
ton:
"One. That this franchise is as
signable.
1.-TWO. That this franchise will ex
pire at the en- of the thirty years
for which the company was incor.
porated, which will be March 1, 1919
Upon the second proposition we
think there can be no doubt. A
franchise granting a company, its
successors and assigns, the right to
maintain gas mains and to erect
poles and wires in and upon the
streets of a city, is a property right
subject to taxation, assignment and
alienation.
City of Greensboro VS.. Cumber
land T. T. Co., opinion of the SUI
preme court of the United States
June 16, 1913.
Upon the second pdoposition we
entertain some doubt as to the cor
rectness of the conclusion reached
by you. You are, however, sus
tanned by many authorities Your
opinion is based largely upon the
authority of st. Clair County Turn
GO, and other cases cited. The grant
in the St Clair case ran to that par
ticular company and not to it's sue
cesSoTs and assigns. Had the fran
chise in your case run to the Man
kato Gas and Electric company
without including its successors and
assigns, we would have no difficulty
in arriving at the conclusion reached
by you.
"A franchise running to a corpora
tiOn and its successors and assigns
granting the right to occupy thu
streets with its mains, poles ant
wires, is a grant of a property RICH
in perpetuity, unless limited in dura
ton:
''(a) By a constitutional limita
ton upon the right of the loca
municipality to grant a franchise il
perpetuity.
"(b) Unless the granting of sucf
contracts is contrary to public pol
icy.
"tc) ~ the terms of the ordi
nance or franchise.
ed By municipal charter restric
tions.
There seems to have been M
constitutional limitation upon tht
right of the municipality to grant il
perpetuity franchise of this nature
Upon the question of whether thi
grant conflicts with the policy of the
state, as announced by the decision.
of our court, we call your attention
to the cases of
- hii fo' l<iItiO dis
and Water company, "a MINI. 1870.
Reed VS.. Anoka, So MINI. 294
"The conclusion to be drawn from
these cases seems to be that a lon
term contract
is not necessarily prima faci
void, nor beyond the power of mt
nicipal authority, but on the cor
trary, in the absence of a shown
of unreasonableness, is prima faci
valid"
There is provision in Ordinanc
No, 48, to the effect, that the con
pany shall furnish certain lights t
the city at given rate for perio
of five years This rate is the col
sideration given by the grantee fo
the franchise, and in no way refer
to the life of the franchise, but sin
ply limits the time for which tn
rate shall continue.
Section Al of Chapter s, Specit
Laws 1887, provides:
"'Phe common council is authO
i1ad ~ narT,it tho q N