2 Colo. 673 | Colo. | 1875
On the 29th day of June, A. D. 1874, the defendant in error filed its bill of complaint against the plaintiff in error, and the relief prayed for therein was, in substance, that the defendant below be restrained from preventing and obstructing the plaintiff from building, etc., its railway on Twenty-third street, in the city of Denver, and from preventing and hindering the plaintiff from removing obstructions in said Twenty-third street, and from constructing in Holladay street, in said city, or any part thereof, a railway, and from placing ties, rails, and other material on the same; and from constructing or operating a railway upon any other street, in the complaint mentioned, in the city of Denver. A temporary injunction was obtained, and by it the defendants were enjoined, substantially, as prayed for in the bill, and enjoined “from building, constructing or operating a street railway on any of the streets of Denver.” The defendants answered the bill, evidence before a master was taken, a hearing was had upon the pleadings and proofs, and a decree entered on the 5th day of February, 1875, by which it was decreed that the injunction heretofore granted in this case be made perpetual. The complainant became a body corporate under an act of the territorial legislature, which is set out “in Ticbg verba.” The act incorporates W. Stimpson and others, as “The Denver Horse Railway Company,” and provides that the corporation shall have “ the sole and exclusive right and privilege of building, constructing and operating a horse railroad in the city of Denver, and additions thereto. *
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And shall have the exclusive right and privilege of building
The city council of the city of Denver, on the 24th day of April, 1873, passed an ordinance of which the following is the first section:
This ordinance further provided that dummy steam engines should be used for propelling cars, by Bond, Fisher and Euter; imposed other conditions, non-compliance with which worked a forfeiture of “all rights and privileges” therein conferred and thereby granted, but prescribed no other limits to the enjoyment thereof. Fisher, Bond and Euter afterward petitioned the city council to add to the right of way granted by the ordinance, Twenty-third and other streets. A committee appointed to consider the petition, on the 5th day of June, 1873, reported that the prayer of the petition be granted, and the report was then adopted by a vote of the city council, and no further action taken thereupon. On the 21st of June, 1873, Fisher, Bond and Euter assigned all their right, title, interest, privileges and immunities, conferred upon them by the city council, to the
The defendants, at the time the suit was commenced, were building their railway on Holladay street, and proposed to build at some time thereafter a line on Fifteenth street, on which the complainant then had a line constructed and in use, and the complainant averred that “if the defendants constructed a road on Twenty-third and Holladay streets it would hinder complainant and cause a loss of business and profits, and the plaintiff would be compelled to bring repeated suits,” etc., but it does not aver any facts tending to show in what manner the defendant’s railroad in Holladay street would hinder complainant and cause a loss of business and profits, and compel repeated suits. The respective corporations, which are parties to this suit, by divers allegations seek to dispute the legal existence of each other. We think these allegations can be more properly determined in a proceeding by or in the nature of quo warranto. A suit in equity between private parties cannot be metamorphosed into an-inquisition at law, respecting the exercise of franchise in which the parties have no greater right than the citizens generally have in common with them. Besides, these corporations have, by impleading, treated each other, for the purposes of this suit, as legal entities, and for the same purposes, we treat them as they in this respect have treated each other. Angell and Ames on Corporations, 635-6, and 734. As to questions, however, arising upon conflicting claims set up by them to the use of the streets of Denver, we may inquire. Each claims to be entitled to certain rights of way, privileges and franchises, in such streets not common to the public in general, and more or less in derogation of the common right — one claiming, under its charter from the legislature, an exclusive right, the other claiming a similar though not exclusive right, under and by virtue of a grant, from the city council and
The ordinance in question, if within the powers conferred upon the city council by the charter of February 9, 1866, conferred a special privilege upon the persons therein mentioned and their assignees, the Denver and Swansea Railway Company, and in this respect was in contravention of the spirit of the congressional act of March 2, 1867, inasmuch as the power to grant such privilege, if ever possessed by the territorial legislature, had, before the passage of the ordinance under consideration, been taken away by the last-mentioned act. The city council was the creature of the territorial legislature, and we think could not, after the passage of • the act of March 2, exercise a greater power in this respect than the legislature which created it. If we are right in this conclusion, the ordinance, in so far as it attempted to confer an especial privilege, was void. We might rest our decision here, but desire to go further and place our decision upon other grounds as well.
On the 13th of February, 1874, the charter of the city of Denver was amended, and in addition to the powers hereinbefore enumerated, the amended charter conferred upon the city council power “to regulate the running of horse railway cars, or cars propelled by dummy engines, the laying down of tracks for the same, the transportation of passengers thereon, and the form of rail to be used.”
If it is contended that the action of the city council,
That the ordinance in question, taken in all its parts, undertook to confer an especial privilege and franchise, there is not the shadow of doubt. The answer avers that by the proceedings of the city council on the 5th of June, 1873, the “privileges, rights and immunities asked for in said petition were granted, and the rights, privileges, immunities and franchises in said ordinance were extended and made applicable ” to Twenty-third street. Such railroad, as the ordinance contemplates, would be a strict monopoly. Persons riding in the cars upon it would be compelled to pay the fare demanded, and its railway track would be for its exclusive use, not admitting of rivalry in the running of cars thereon.
This ordinance then undertook to confer an especial privilege not enjoyed by the people of the Territory in common, and conferred such privilege in perpetuity, for there is no limitation to it in point of time, and no power of revocation reserved to the city council therein. Such a privilege is a franchise. In England the granting of a franchise was a royal prerogative, and could only be granted by the crown, and in the Bank of Augusta v. Earle, 13 Pet. 595, Chief Justice Tawey says: “Franchises are special privileges, conferred by the government upon individuals, which do not belong to the citizens of the country generally of common right.” It is essential that a franchise should be created by a grant from the sovereign authority. It is doubtful whether the legislature can delegate the power to grant such a franchise at all. People’ s Railroad v. The Mem
In this view of the case, the complainant is entitled to relief just so far as its allegations, sustained by proof, will justify a court of equity in intervening in its behalf. In so far as it suffers from the wrongful acts of the defendants in common with the public generally, it cannot have relief; but, to the extent that its private rights are invaded or threatened by a wrong-doer, it is the duty of the court to protect it. As we have seen, the complaint does not allege facts showing how the defendants’ railway on Holladay street will hinder complainant and cause loss of business and profits. For aught we can see, the defendants' cars may, in fact, bring passengers to some of the complain ant’s lines and thus increase complainant’s business and profits. We have searched with diligence the authorities cited and many others, to see whether, under the circumstances developed by the pleadings and the proofs in this case, the injunction, as it respects Holladay street, and other streets than Fifteenth, Twenty-third and Champa streets, can be sustained. The strongest case we have found to sustain the complainant’s claim in this behalf is the case of the Newbury Turnpike Company v. Miller, 5 Johns. Chan. Rep. 101. Under its grant in that case the complainant, as appeared by the allegation and proofs, had, upon complet
Upon the facts appearing in the record the complainant was entitled to relief only as to its lines of road actually built and in operation, and to that end the defendant should have been enjoined from interfering with the road in Champa and Fifteenth streets, and from opposing the construction of complainant’s road in Twenty-third street, and not otherwise, and the decree of the court below will be so modified.
Decree modified.