78 Neb. 325 | Neb. | 1907
This is an original application for a writ of mandamus. The relator, a street railway company which is the owner of a franchise to construct and operate a line of street railway on certain streets in the city of Lincoln, among which are N street and Twenty-first street, had commenced to build a line of railway upon N street, when an injunction was issued at the instance of the city of Lincoln, restraining it from further proceedings. A mandatory order was contained in the temporary injunction issued, commanding it to remove from the street the rails and ties already laid and put the street in the same condition in which it was found. This order was not final, but was merely interlocutory; and since the relator was unable to appeal from the same it began this action, praying for a writ of mandamus to require the respondent to vacate so much of the temporary order as requires it to take up and remove its tracks on Twenty-First street and on N street. The application for the writ alleges that the sole
The ordinance in question is entitled “An ordinance regulating the construction of new street railway tracks, gas mains, or other constructions or works of Avhatever kind in streets, public ways or grounds; to prohibit additional construction of street railway lines, except by consent of the mayor and council; and to amend and repeal all ordinances in conflict herewith.” The first section provides'in substance that no street raihvay company, gas company or OAyner of any system of public works, having or claiming a franchise within the city, shall construct any new lines of tracks, mains or Avorks, or the repair thereof, that requires obstruction of the use of the streets, except in accordance with the terms and conditions following. Section 2, so far as material here is as follows: “Any street railway company desiring to construct neAV tracks on streets not by it previously occupied * * * shall file with the city clerk a Avritten application for permit to construct such track, stating location thereof, Avith complete specifications and plans of its proposed manner of construction and material to be used” (omitting the remainder of said section, which provides for the deposit of a certified check for and an estimate of the cost of paving on streets already paved). Section 3: “On filing such certified check, application, and estimate of the city engineer, the matter shall come for consideration of the council, who shall cause publication of notice in two daily papers published in the city for not less than one
The relator contends that the ordinance is void because it empowers the city council to grant or refuse a permit to street railways to construct tracks, and thereby enables the council to prohibit the exercise of the franchise and destroy the franchise itself, and that it is not a regulative ordinance, since it does not contain any terms or conditions whereby the exercise of the franchise is regulated. In support of this contention it shows that in the state of Nebraska street railway franchises are granted not by the municipalities, but under the provisions of section 2, art. XI5 of the constitution, which provides that “no general law shall be passed by the legislature granting the right to construct and operate a street railway within any city, town, or incorporated village, without first requiring the consent of a majority of the electors thereof,” and of sections 1-5, art. VII, ch. 72, Comp. St. 1905. These sections require the organization of a corporation;
Construing these sections of the constitution and the statutes, we have held that there is no authority given to i city to grant charters to street railways; that the only authority given the city is to submit the proposition to the electors; for the consent of a majority of the electors is a condition precedent, on the happening of which depends the right to construct and maintain the railway. The grant by the legislature under general law is ineffectual to give street railways the right to operate upon the streets of a city, unless such company has obtained consent of a majority of the electors. The constitution and the statutes and the articles of incorporation constitute the charter of the company, and the consent of the electors properly7 certified and recorded give it the license and authority to enter upon the streets, and the city can never add to nor take away any of its charter rights. Lincoln Street R. Co. v. City of Lincoln, 61 Neb. 109. Since, therefore, the city of,Lincoln has no power to grant or withhold a franchise to the corporation, and since the ordinance confers upon the city council the power to refuse the company permission to enter and construct its lines upon the streets upon which the consent of the electors has already been given it to operate, the relator argues that it is void, being in contravention of both the statutes of the state and the constitution.
On the other hand, the respondent contends that, grant
It will be observed that the provisions of this ordinance are not confined to street railway companies alone, but apply to “gas mains, or other constructions or works of whatever kind in streets, public ways or grounds.” It would seem that the object of this enactment is to procure and provide a permanent record of both surface and subsurface construction in the streets of the city, so that the exact location of street railway tracks and of gas mains, water mains and other underground construction may be
The relator contends that the provisions of the ordinance requiring notice to be given and a time fixed for all parties interested to show cause, if any there be, why a permit should not be granted, evidences that -it was the intention of the council to construe the ordinance to mean that the city council may grant or refuse a permit at their will, but this is not a necessary deduction. The notice is designed to apprise the public generally, and persons living along the line of the proposed construction in particular, of the place and manner in which the railway is intended to be built. There may be circumstances, well known to the people living upon a street, why a railway should not be' constructed upon a certain portion of the street or in a certain manner, which might not be clearly obvious to the members of the -council, and the object of the notice and the time and place fixed for hearing is to give every person interested an opportunity to be heard upon all such matters or others suggested by the plan proposed.
It is argued by the relator that other ordinances prescribe full regulations for the construction of street railways, and hence this one is useless and arbitrary; but the provision of this ordinance which requires specifications of the manner in which the line is proposed to be built is proper and necessary for the purpose of furnishing the city authorities with information as to whether it is the intention of the railway company to construct the line in accordance with the rules and regulations contained in such ordinances. As the respondent contends, the practice is similar to that of obtaining an ordinary building permit. The ordinances of the city prescribe the manner in which buildings shall be erected within certain limits, and require intending builders to apply for permission to erect buildings and to furnish such details of the pro
Under the conceded facts, the relator has entered upon the construction of a street railway without making any attempt to test the temper of the city authorities upon the question of whether permission would be granted it. It has not tendered any bond to hold the city of Lincoln harmless from any damages that may accrue from the opening and incumbering of the. streets. It has not described the location of its proposed railway or the manner in which it intends to build it. It seems to have1 assumed that the city council intended to violate its duty by arbitrarily refusing a permit. ' The matter seems so plain as not to require further discussion. We are of the opinion that the ordinance is a just and valid exercise of the police power of the city authorities for the care and
Writ denied.