80 Neb. 357 | Neb. | 1907
From tbe information filed by tbe state in this case the following facts appear: Three street railway companies, known as the “Capitol Heights Street Railway Company,” the “Lincoln Rapid Transit Street Railway Company,” and the “North Lincoln Street Railway Company,” were duly organized under the laws of this state, and in the year 1887 ordinances were passed by the city council of the city of Lincoln calling elections for the purpose of
Many of the questions raised by the record have been discussed and disposed of in State v. Lincoln Street R. Co., ante, p. 333. Under the holding in that case, it is evident that no valid consent to enter upon the streets of the city of Lincoln was ever obtained from the electors by the sev eral companies which afterwards became merged in the Home Street Railway Company. Neither the ordinance calling an election nor notice of the election mentioned any termini of the lines or the route of the proposed roads. The consent given was what we have heretofore termed a “blanket consent,” which is of no avail when questioned by proper authority. It cannot be questioned, however, that, under our constitution and the statute relating to the formation of street railway companies, the electors of the city of Lincoln had the power to confer on such companies the right to construct and operate a street railway Avithin the corporate limits of the city. In the exercise of this power the termini of the road and the route to be taken between such termini should be set forth in the proposition voted on. When this is done, the line of road is fixed and definite, and the right' to construct this line is vested in the company and is beyond recall, as everything necessary to a valid and complete exercise of the power has been done. While the statute must be followed in all esssential particulars in order that the consent of the electors to. the occupation of the streets of the city by a railway company shall be valid and beyond recall, it does
Regarding the claim of an abandonment of its franchise; by nonuser, the authorities are clear that, to warrant a court in basing a 'decree upon that ground, the abandonment must be a clear, unequivocal and decisive act of the party showing a determination not to use or claim the benefit of its franchise. Citizens Street R. Co. v. City of Memphis, 53 Fed. 715.
It is also claimed by the state that the city of Lincoln did not acquire the franchise or consent of the electors held by the Home Street Railway Company by the foreclosure and sale in the federal court. We think the rule quite well established that a franchise to be a corporation is separate and distinct from a franchise as a corporation to maintain and operate a railway. The latter may be mortgaged without the former and passes to a purchaser at a foreclosure sale. Morgan v. Louisiana, 93 U. S. 217. The consent of the electors to the occupation of the streets of
It is further claimed that the city of Lincoln had no authority to sell and convey to the defendant the property of the Home Street Railway Company which it had purchased at foreclosure sale. This objection is fully met by the provisions of subdivision IV, sec. 9, art. I, ch. 13, Comp. St. 1905, defining the powers of a city of the class of the city of Lincoln. It reads as follows: “To sell and convey real or personal property owned by the city, and make such orders respecting the same as shall be deemed conducive to the interests of the city; but shall not have power to sell any real estate of the city, except such real estate as may be purchased upon sale for general or special taxes, or assessments, unless authorized so to do by a vote of-the majority of the electors of such city at a general or special election therefor.”
Upon the record before us, we are of opinion that the Citizens Street Railway Company is entitled to the use of the streets now occupied by it for street railway purposes so far as its lines are completed and in operation, that it has no right to extend its lines Avithout further authority from the electors of the city, that the decree óf the district court should be reversed and the. cause remanded, with directions to enter a decree in conformity with the views herein expressed.
By the Court: For the reasons stated in the foregoing opinion, the decree of the district court is reversed and the cause remanded, with directions to enter a decree in conformity with the views above expressed.
Reversed.