Wausau pilot. [volume] (Wausau, Wis.) 1896-1940, 1920-02-03
DECIDED FOR THE.
DEFENDANT
Street Car Line Will Continue
To Run Through Scholfield
AS 1t Is-FOr The Pres
ent At Least.

eUt Al LEAST.
| The street car line will continue to
run through Schofield as heretofore
until some other court decides other
lwise. The case of State of Wisconsin
ex-rel Village of Schofield VS.. the
Wisconsin Valley Electric Company
commenced Monday last. The plain
tiff sued in an attempt to compel the
Electric Company to place its tracks
| in the center of the street rather than
on the extreme side, passing through
the village of Schofield. There was
a franchise granted the company it
seems to run its lines as now laid out,
later another one was drawn for the
placing of the lines in the center of
the street, bpt this was not entered
into by the Electric Company.
Geo. w. Lippert of this city and j.
tC Kleist of Milwaukee were for the
plaintiff and c. B. Bird and F. w. Cen
rich for the defendant
At the conclusion of taking the
evidence, Wednesday afternoon the
| following motion was submitted by
c. b. Bird which was argued by At
torneys Bird and Kleist:
1.-The defendant moves upon the evil
denee in the case and the pleadings
upon the issues triable by the court,
for judgment in favor of the defen-
dant, quashing the writ of mandamus.
The defendant also moves, upon the
undisputed evidence in the case on
the issues for the jury, that the jury
be directed to answer the first ques-
ton Yes The defendant also moves
upon the undisputed evidence on the
issues for the jury, that the jury be
directed to answer the second ques-
in the special verdict Yes. Defendant
further moves upon all the evidence
in the case, whether or no there be
any dispute On the questions for the
jury, for judgment quashing the writ
in this case and dismissing the pro-
ceedings.
The motion was argued by Attor-
ney c. B. Bird for the defendant and
Attorney j. G. Kleist for the plaintiff
After hearing the arguments Judge
Reid gave the following decision
There is no need of further argu-
ment, as l view it. A franchise is a
contract. That is the first founda-
mental principle we must start with.
If there is contract then both par
ties must abide by it, unless it is i'm
peached for fraud, or incompetence,
or something of that sort. The rights
of these parties must be determined
according to their contracts. If they
have no contract, then this court
hasn't anything to say about where
this track should be.
'"The first question arising here is
whether or not there was a franchise
granted and accepted in the first in
stance, according to law. Now the
statute provides for authorizing the
village to grant such franchise. Sec
tion 1852 so provides. Section 940b
provides for what shall be done be-
fore it shall be granted. That can
be complied with only in case there is
an official paper designated, or some
other paper published in the village.
There is no provision for posting any
notice, and the posting of a notice
would be an utter nullity-a pure
frivolity, of no value whatsoever. 1t
would have no more to do with the
validity of the franchise than run
ming up here to Wausau and running
home again, would have.
THE statute. SO far as it applied
to village without a newspaper, was
complied with. This statute does not
disable village that has no newspa-
per published within it, from granting
a franchise. 1t has the power to
grant it, in general terms, in section
1852, to grant the franchise, and this
Sec. S40b is merely a limitation. 1t
mncf Hn nnnontiod xrrifh xx,b1
circumstances permit compliance.
Now. | see no difficulty at all in the
preliminary proceedings to this fran
chise. The only ground upon which
it has been attacked is that the pre-,
llm1nary proceedings provided for by
statute were not complied with. 1
see no deficiency or defect in that.
That franchise was granted in pur-
suance of a written application,-a
proposition in effect-a proposition by
the Railroad Company and acceptance
by the village. We have then a con-
tract.
There is no suggestion that either
of these parties were incompetent, or
insane, or under guardianship or that
they were defrauded into entering into
this contract When a contract is
made by persons, or corporations, cap
able OF contracting, they are bound by
it. There is no escape from that. And
the village had no more power to re-
scind that first ordinance, after ac-
ceptance and action under it, than
would have to repudiate any contract
that l have personally a right to en-
ter into and do enter into.
The attempted RECESSION, unless
it was based upon some legal def
cheney in the first franchise, is a mere
nullity. 1t has no validity whatever.
Now, there is another insuperable
objection to granting any relief here.
The so called second franchise that
was passed by the board on March 4.
1907, was expressly rejected by the
railroad company. A copy of it was
presented by the representative of the
village, Mr.. j. A. Fullmer, to Mr..
Brown, as president of the street
railway company. And Immediately
the reply is made to the representa-
tive of the village-the authorized
representative of the village, that the
street railway company rejected it
and would have nothing to do with
the franchise. The street railway
company had not applied for it; had
made no proposition for it; 1t has
never been accepted. You cannot
bind two parties to.a contract until
there is an acceptance by both sides.
Now assuming. if we might for
the time being, that the first franchise
was defective;-that there was some
deficiency in the proceedings in regard
TO the granting of it,-that does not
help any in validating the supposed
second contract or second franchise
Let us leave the first one entirely out
lof consideration. The second one
lattempted to be made into the form OF
a contract never became a contract,
because on the undisputed evidence il
was relected;-the proposed fran
chise was rejected promptly and ex-
pressly.
That is the only supposed fran
chiSe in which there is any nrovieior,