54 W. Va. 597 | W. Va. | 1904
The Town of. Alston appeals from a decreee of the circuit court of Barbour county perpetuating an injunction awarded at the instance of the Belington and Northern Railroad Company inhibiting the officers of such town from repealing certain
The 'first and most important question presented in this case is as to whether the assent of the corporate authorities of a town to ocupy its streets required by section 10, chapter 52, Code, given to a railroad company, is a franchise within the meaning of chapter 29, Acts 1901. The chapter consists of but one section and is as follows: “No franchise shall hereafter be granted, by the county court of any county, or other tribunal acting in lieu thereof, or by the council of any city, town or village incorporated under the laws of this State, where the application for such franchise has not been filed at least thirty daj^s prior to the time when it is to be acted upon, by such county court or council, with the clerk of such court or council, and notice of such application, stating the object of such franchise, shall have been given by publication for thirty days in some newspaper of general circulation published in such county or city wherein such franchise is to be granted. Nor shall such franchise be granted within thirty days after the application has been filed, nor until an opportunity has been given any citizen or corporation interested in the granting or refusing of said franchise to be heard. Nor shall any franchise hereafter be granted by any county court, or other tribunal acting in lieu thereof, or- by any council of any city, town or village incorporated under the laws of this State, for a longer term than fifty years; Provided, however, that nothing in this act shall prevent the renewal of any such franchise for a term not exceeding fifty years, when the same shall have expired. No franchise hereafter granted for any longer term than fifty years shall be of any force or validity.” A franchise is an incorporeal hered-itament and not the tangible property necessary in the exercise thereof. Tuckahoe Canal Co. v. Tuckahoe, Sac., R. Co., 11 Leigh 78; Bridgeport v. New York, &c., R. Co., 36 Conn. 266. An action
The defendant’s council is clothed with limited legislative, judicial and executive or administrative functions under the supervision and control, when the rights of persons and property are involved, of the superior judicial tribunals of the state without ihe necessity of an appeal to equity, unless irreparable injury is threatened and the legal remedies are inadequate. If the council improperly annulled its orders or ordinances assenting to the plaintiff’s occupancy of its streets, the plaintiff could treat such annulment as void, or it could have the same reviewed and reversed by proper judicial method of review. If, however, the council should repeal such valid orders, and then threaten and undertake to tear up and destroy plain
Beversed in Part.