Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1916-09-16
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That om Horse Railway Franchise

That Oiu Horse Railway Franchise
Omaha, Sept. l5.-To the Editor oil
The Omaha Bee: In your issue Of
September Ia, with respect to railway
franchises, you quote Mr.. w. ]. Con
neil as saying, in an address before
the Southwest Improvement club:
I'm the early days Of street rail
way litigation, | represented the ole
Gable company, known as the two
streaks of rust and with John ID
Howe, made a successful fight agains
the present company and its claim Il
the exclusive use of the streets Of
Omaha"
If Mr.. Connell made this Statement
he is in error as to the facts.
The Omaha Horse Railway company
was Incorporated by act of the terri
torial legislature by special charter
in February 1857, which gave the
company the exclusive right to oper'
ate Horse Railways" within the city
of Omaha and five miles adjoining
for period of fifty years, there being
no constitutional exclusive lnhlb..
tons.
The Gable Tramway company was
organized under q state general act
of 1875. / was requested by the or
ganizers for my written opinion as tc
their right to build and operate q
cable line, If approved by the people
as against the contention of the horse
railway for exclusive franchise. / ad.
vised they had. In due time there
after construction commenced on
Tenth street
On August Z, 1885, the Horse Rail.
way company filed in the federal court
in Omaha bill in equity seeking tC
restrain the Gable company from
building. Its main contention was
that it had the exclusive right in
Omaha and five miles adjoining, fol
the construction and operation Of
street railways.
On the issue made my contention
for the Gable company was that even
II the exclusive feature of the horse
railway was valid, that it was valid
only as to horse railways" Thai
the grant being exclusive, its language
must be strictly construed and that
any other operating power than horse
power was not within the grant. and
further, that it was not intended by
the grant to foreclose the public in ad.
vance from all benefits of inventions
and discoveries in the matter of street
idllNdy u Ci anu give lItIl W luls
grantee; that at the time of the grant
cable power for street railways was
virtually unknown and could not Their
have been in the minds of the people
in making the grant.
The case finally came to trial on it,
merits, and in an opinion delivered
by Circuit Judge Brewer, March Is
1887, every contention | made was
sustained in full and decree was rem.
dered accordingly, and the cable road
was built.
1t will thus be seen that the Law
was then settled and so remained set.
tied, that the only rights acquired by
the Omaha Horse Railway company
by its special charter was to operate
horse railways, whether exclusive OF
not. That question was not necessary
to a decision in our case, as we had
no intention of operating horse rail-
ways. The case is entitled Omaha
Horse Ry. Co. VS.. Cable Tramway Co.
of Omaha, and reported in 80 Fed
Rep, 1924.
The Omaha Horse Railway company
considered the question of great i'm
portance as is evidenced by the array
Of eminent counsel Employed: George
Pritchett, J. M. Woolworth, Thurston
& Hall and that greatest of corporation
lawyers, Judge John H. Dillon of New
York. l alone, represented the de-
PENDANT, the Gable company. Neither
Mr.. Connell nor Mr. Howe were con-
nected with the case in any manner.
Mr.. Connell undoubtedly had in
mind case brought by the Omaha
Horse Railway company against the
Omaha Motor Railway company, in
which he and Mr.. Howe represented
the Motor company. This case, how
ever, involved no question Of executive
franchise; that had been decided long
before t! Motor company was sued,
and besides, the Motor case never
came to trial, but was dismissed.
JOHN C. GOWN.