Great Falls tribune., 1922-04-06
RAILWAY EVJO|NED
FROM REMOVING
KE|VWOOD BRANCH
Supreme Court Holds Public
Service Commission Must
Be Consulted.
Special to The Tribune.

SPECIAL to Ihe tribune.
Helena, April 5.-The Helena Light
& Railway company is enjoined from
taking up the Kenwood line until such
time as the public service commission
of Montana shall assume jurisdiction
and make a ruling iD the matter of
the right of the company 10 discontinue
court ruled Wednesday. The ruling of
the supreme court was made on the
appeal of the City Of Helena from an
order of the district court Of Lewis
and Clark county denying an injunction
against the removal of the line.
The supreme court in it's decision
only grants an interlocutory Injunction,
restraining the company or it's agents
from discontinuing the portion of the
kenwood line in question until such
time as the public service commission
of Montana shall grant authority for
such discontinuance.
City Acts as Agent
written by Justice Holloway, it is held
a franchise, it acts merely as the agent
Of the state, which can assume juris-
diction through the state commission
The grant of franchise proceeds from
the legislature, the court says
In closing, the opinion says:
IF, then, the right of the city to
grant this franchise was subject to leg
lslatlve restriction, as we hold that it
was. the city cannot remove such right
from the power of state regulation and
control by merely designating the ac-
cepted franchise contract. for the
contract carries with it all of the mfr
mites of the subject matter. Neither
can the city insist that its contract
with the railway company is inviolable.
protected by the contract clause of the
federal constitution or by section II,
article 8 of our state constitutions
Speaking generally, a municipal cor
poration does not stand in a position
to assert as against the state the bene-
fit of the constitutional provision
against the impairment of the obliga-
ton of contracts.
Commission May Relieve
The only authority claimed by the
to operate the kenwood line during
the entire period covered by the fran
rhlse rests in contract which, as we
have determined, is not inviolabIe as
against the state. 1t follows that the
state may, through the public service
commission, relieve the railway com
pany of the burden thus imposed. And
this conclusion does not impinge upon
the right of the inhabitants of a munic- |
lpallty to a measure of self govern
ment with respect to matter of purely |
local concern. The streets Of q CITY !
ere public highways. and though the |
city is charged with the duty of keep |
ing them in repair and the cost Of |
is imposed upon the city. |
nevertheless jurisdiction over them is |
in the state, and the city acts |
with respect to them subject to the
general laws Of the state.
Judgment Reversed
1T is our conclusion that the state
nay. through the public service com /
mission relieve the railway company of ,
is contract obligation to operate the !
Aenwood line, or part of it, during the
'ntlre period covered by the franchise.
2ut that until the state has acted in
he premises, the obligation is con
.inulng one which the city is entitled
o have discharged. This being a suit
n equity. jurisdiction over the subject
natter should be retained until final
disposition upon the merits.
1t IS ordered that the Judgment be l.
tversed and he cause remanded to the
district court with directions to grant
IN interlocutory injunction restraining
he defendant, its agents. servants and
employees from discontinuing the por-
ION of the Kenwood line in question
lntil such time if at all as the pub
lc service commission shall grant au-
horlty for such discontinuance and to
ctaln jurisdiction over the controversy
or reasonable time until application
made to the commission and action
lad thereon