111 P. 864 | Or. | 1910
Lead Opinion
delivered the opinion of the court.
“Judge Cooley adopts the view that a municipal corporation cannot, ‘without explicit legislative consent,’ permit the construction of a street railway in its streets, and confer on the projectors ‘privileges exclusive in their character, and designed to be perpetual in duration.’ * * No reason is perceived why this principle is not entirely sound, and in strict conformity to every rule pertaining to the true functions of municipal corporations. * * They have no implied power to barter away today, as a monopoly to one, that which, the public necessities of a growing city may require to be reserved, in order that it may be exercised for the public benefit on tomorrow.”
See, also, note to Huron Waterworks Co. v. City of Huron (S. D.) 12 Am. R. R. & Corp. Rep. 398; Westminster Water Co. v. Westminster (Md.) 64 L. R. A. 630.
The Dartmouth College case (4 Wheat. 518: 4 L. Ed. 629), cited by defendant, is not in point for the reason that it relates to a franchise created by sovereign power. And we hold that section 4 fixes the duration of the franchise at fifteen years. If, as defendant contends, the duration of the franchise in terms is perpetual, then, as we have seen, it is void, and is no protection to defendant for the acts complained of here. This was expressly held in Westminster Water Co. v. Westminster, 98 Md. 551 (56 Atl. 990: 64 L. R. A. 630: 103 Am. St. Rep. 424), where the contract was unlimited as to time. The court held that it was a contract in perpetuity, and therefore void; and that the court cannot make a new contract between the parties for a limited period: Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa 241 (91 N. W. 1081) ; Logansport Ry. Co. v. City of Logansport (C. C.) 114 Fed. 688. A contract which is beyond the power of the city to make is void: State ex rel. v. Minnesota T. Ry. Co., 80 Minn. 108 (83 N. W. 32: 50 L. R. A. 656) ; Flynn v. Little Falls Electric & Water Co., 74 Minn. 180 (77 N. W. 38: 78
The only relief sought by this suit is to enjoin defendant from extending its water mains upon streets and alleys not before occupied by it, and the defense set up by defendant does not establish that it has authority to do so. The demurrer to the answer should have been sustained, and the preliminary injunction made perpetual.
The decree is reversed, and a perpetual injunction will be entered here. Reversed.
Rehearing
Decided January 31, 1911.
On Petition for Rehearing.
Opinion by
By the petition defendant urges that section 4 of the ordinance does not limit the duration of the franchise; but, after a further consideration, we are confirmed in our first decision.
We do not hold that section 1 of the ordinance, standing alone, would create a perpetual franchise; but the answer so treats it, and seeks to enjoin the city from installing a municipal plant. However that question is immaterial here.
It is urged that the purpose of the suit is to secure a decree adjudging that defendant is not entitled to any rights in any of the streets of the city, and not alone to prevent it from extending its mains into streets not before occupied, as held in the opinion; but the answer expressly alleges that defendant is extending its water mains and service pipes and making the necessary excavations therefor, and that these acts are the alleged wrongful acts complained of in the complaint.
The motion is denied.
Reversed: Rehearing Denied.