for the purpose of owning and operating lines | tion does not assent in writing, within thirty in the city of Detroit, and is the successor in days after the passage of said resolution of interest of a similar corporation named the the council ordering the formation of new Detroit City Railway. The rights asserted routes, then the common council may give by it arise from an ordinance of the common the privilege to any other company to build council of that city passed upon November such route." 24, 1862. This provided that the Detroit City Railway was “exclusively authorized to construct and operate railways as herein provided, on and through [certain specified streets], and through such other streets and avenues in said city as may from time to time be fixed and determined by vote of the common council of the said city of Detroit and assented to in writing by said corpora.. And provided the corpora

tion.
from a village the grant of a franchise to lay
a street railroad cannot rescind the contract
and recover an amount deposited as liquidated
damages for failure to perform the contract to
construct the road, on the ground that the
grant was impracticable. Peekskill, S. C. &
M. R. Co. v. Peekskill, 21 App. Div. 94.

Power given by a city charter to authorize the use of the streets for "horse and steam railroads," before electricity came into use as a means of propulsion, authorizes the city to grant a franchise for operating a street railway by electricity on the trolley system. Buckner v. Hart, 52 Fed. Rep. 835.

A general grant of power to a city to permit, allow, and regulate the laying down of tracks for street cars, upon such terms and conditions as the city may prescribe, does not empower it to grant for a term of years an exclusive franchise to occupy its streets with street railways. Parkhurst v. Capital City R. Co. 23 Or. 471.

The ordinance provided also that "the powers and privileges conferred by the provisions of this ordinance shall be limited to thirty years from and after the date of its passage."

Section 2 of the ordinance is only necessary to be quoted, and it is inserted in the margin.†

*There is also inserted in the margin §§ 33 [49] and 34 of the tram railway act.††

"with the right to connect the same on any street between these two points," does not authorize the laying of any track for connection or otherwise, even with the consent of councils, on any part of such road. Philadelphia v. Citizens' Pass. R. Co. 151 Pa. 128; Germantown Pass. R. Co. v. Citizens' Pass. R. Co. 151 Pa. 138.

An ordinance giving a street-railway company the right to lay double tracks on certain streets may be repealed, and the right limited to the use of a single track. Lake Roland Elev. R. Co. v. Baltimore, 77 Md. 352, 20 L. R. A. 126. A franchise to a street-railway company in a particular street prevents the grant to an electric company of a franchise to use such street in any way obstructing, hindering, or embarrassing the use under the former franchise. Fidelity Trust & Safety Vault Co. v. Mobile Street R. Co. 53 Fed. Rep. 687.

Municipal authorities consenting to the con struction of a street railway in a street are not The resolution of the board of aldermen of confined to the conditions required by the New the city of New York consenting to the grant York railroad act, but may affix any further of a street-railway franchise under N. Y. Laws conditions not contravening the statute or re1890, chap. 565, need not be published as relating to matters over which other bodies have quired by the New York consolidation act, § 80, complete control. Abraham v. Meyers, 29 Abb. In regard to resolutions disposing of property N. C. 384. of the city. Abraham v. Meyers, 29 Abb. N. C. 384.

A special charter of a street-railway company, empowering it to commence at a certain street corner and construct its tracks eastwardly and westwardly through such street, or any other streets in the borough, with the right to construct branches to its main track through any streets of the borough, does not give it the right to occupy a thoroughfare running north and south, in so far as the right to construct its main track is concerned, and the provision as to branches is so indefinite that new tracks cannot be constructed thereunder after the expiration of twenty-eight years and after the village has become a city and the street has been granted to another company. Junction l'ass. R. Co. v. Williamsport Pass. R. Co.poration, organized as provided in section first 154 Pa. 116.

A franchise granted to a street-railway company under a city charter requiring publication of the terms and specifications of the franchise is void as to a street sixteen blocks in length not mentioned in the publication, although such street was substituted for one mentioned in the publication on which tracks had already been authorized. Buckner v. Hart, 52 Fed. Rep. 835.

A street-railway franchise required by statute to be disposed of by a city to the highest bidder is invalid when advertised and sold to the highest bidder "in square yards of gravel pavement." Buckner v. Hart, 52 Fed. Rep. 835.

Failure to comply with N. Y. Laws 1884, chap. 252, 4, requiring the time and place when an application is to be made for a streetrailway franchise to be advertised in two papers, by advertising in but one, invalidates the frfanchise. People, St. Nicholas Ave. & C. T. R. Co., v. Grant, 50 N. Y. S. R. 465.

A legislative act authorizing a street-railway company to extend its line to certain streets between another street and a certain road.

† Sec. 2. The said grantees are, by the provl sions of this ordinance, exclusively authorized to construct and operate railways as herein provided, on and through Jefferson, Michigan, and Woodward avenues, Witherell, Gratiot, Grand River, and Brush or Beaubien streets; and from Jefferson avenue through Brush or Beaubien streets to Atwater street; and from Jefferson avenue, at its intersection with Woodbridge street, to Third street; up Third street to Fort street and through Fort street to the western limits of the city; and through such other streets and avenues in said city as may from time to time be fixed and determined by vote of the common council of the said city of Detroit, and assented to, in writing, by said corof this ordinance. And provided, The corporation does not assent, in writing, within thirty days after the passage of said resolution of the council ordering the formation of new routes, then the common council may give the privi lege to any other company to build such route, and such other company shall have the right to cross any track of rails already laid, at their own cost and expenses; Provided, always, that the railways on Grand river street, Gratiot street and Michigan avenue shall each run into and connect with the Woodward avenue rail ways, in such direction that said railways shall be continued down to, and from, each of them, one continuous route to Jefferson avenue; Provided, always, that said railroad down Gratiot street may be continued to Woodward avenue, through State street, or through Randolph street, and Monroe avenue, and the Campus Martius, as the grantees, or their assigns, under this ordinance may elect.

Sec. 33. It shall be competent for parties to organize companies under this act to construct and operate railways in and through the streets of any town or city in this state.

Sec. 34. All companies or corporations formed

"There shall be elected annually on the first Monday of April in each organized township one commissioner of highways and one overseer of high

vacate

By an ordinance passed November 14, 1879, The provisions of the Constitution which it was provided further that "the powers and are pertinent to the case are as follows: privileges conferred and obligations imposed "The state shall not be a party to or inon the Detroit City Railway Company by the terested in any work of internal improveordinance passed November 24, 1862, and the ment, nor engaged in carrying on any such [50] amendments thereto, are hereby extended work, except in the expenditure of grants to and limited to thirty years from this date." the state of land or other property. On November 20, 1894, the common council passed an ordinance granting to several third parties the right to construct street railways upon portions of certain streets upon which the plaintiff in error was maintaining and operating street railways, and also the right to construct, maintain, and operate railways on certain other streets, alleys, and public places in the city of Detroit, without giving to plaintiff in error the opportunity to decide whether it would construct the same. The present suit was brought in the circuit court for the county of Wayne and state of Michigan, to enjoin the grantees named in the latter ordinance, and also the city, from acting thereunder, upon the ground that it impaired The supreme court of Michigan, in its opinthe contract between the city and the plain-ion (68 N. W. 304 [35 L. R. A. 859]), intertiff in error arising from the ordinances first aforesaid. The bill was dismissed, and, on appeal to the supreme court of the state, the decree of dismissal was affirmed. From that decree the present writ of error has been duly prosecuted to this court.

There are five assignments of error. They present the contention that the grant to the plaintiff in error was a contract within the protection of the provision of the Constitution of the United States, which prohibits any state from passing any law impairing the obligation of a contract, and that the subsequent grant to the defendant in error, the Detroit Railway, was a violation and an impairment of the obligation of that contract.

ways for each highway district.
"The legislature shall not
or alter any road laid out by the commis-
sioners of highways, or any street in any city
or village, or in any recorded town plat.
"The legislature may confer upon organized
townships, incorporated cities and villages,
and upon boards of supervisors of the several
counties such powers of a local, legislative,
and administrative character as they may
deem proper."

prets these provisions adversely to the contention of plaintiff in error, and, reviewing prior cases, declares their harmony with the views expressed. "The scope of the earlier decisions," the court said, "is clearly stated by Mr. Justice Cooley in [People] Park Commissioners v. Common Council of Detroit, 28 Mich. 239 [15 Am. Rep. 202]. After stating that the opinion in People [Le Roy] v. Hurl but [24 Mich. 44, 9 Am. Rep. 103], had been misapprehended, Justice Cooley said: 'We intended, in that case, to concede most fully that the state must determine for each of its municipal corporations the powers it should exercise and the capacities it should possess, and that it must also decide what restrictions should be placed upon these, as well to prestate as to protect individual corporators vent clashing of action and interest in the of the local majority. And what we said in *against injustice and oppression at the bands [52] that case we here repeat, that while it is a Flowers, Joseph H. Choate, and Philip and perpetuated by express provisions of the fundamental principle in this state, recognized

Messrs. Henry M. Duffield, John C. Donnelly, Fred A. Baker, Michael Bren-, David Willcox, and Frank Sullivan Smith for plaintiff in error.

nan,

Messrs. John B. Corliss, Charles

A. Rollins for defendant in error.

Mr. Justice McKenna delivered the opinion of the court:

[51] *The controversy turns primarily upon the power of the city of Detroit over its streets, whether original under the Constitution of the state, and hence as extensive as it would be in the legislature, or whether not original but conferred by the legislature, and hence limited by the terms of the delegation.

The first proposition is asserted by the plaintiff in error; the second proposition by the defendants in error.

for such purposes shall have the exclusive right to use and operate any street railways constructed, owned, or held by them; Provided, that no such company or corporation shall be authorized to construct a railway under this act through the streets of any town or city without the consent of the municipal authorities of such town or city and under such regulations and upon such terms and conditions as said authorities may from time to time prescribe; Provided, further, that, after such consent shall have

|

Constitution, that the people of every hamlet, town, and city of the state are entitled to the benefits of local self-government, the Constitution has not pointed out the precise extent of local powers and capacities, but has left them to be determined in each case by the legislative authority of the state, from considerations of general policy, as well as those which pertain to the local benefit and local desires. And in conferring those powers it is not to be disputed that the legislature may give extensive capacity to acquire and hold property for local purposes, or it may confine the authority within the narrow been given and accepted by the company or corporation to which the same is granted, such authorities shall make no regulations or conditions whereby the rights or franchises so granted shall be destroyed or unreasonably impaired, or such company or corporation be deprived of the right of constructing, maintaining, and operating such railway in the street in such consent or grant named, pursuant to the terms thereof.

bounds, and what it thus confers it may en-U. S. 791 [25:921]; State [Atty. Gen] v. large, restrict, or take away at pleasure."' Cincinnati Gaslight and Coke Co. 18 Ohio St. This decision of the supreme court of Michi-262; Parkhurst v. City of Salem [Parkhurst gan is persuasive if not authoritative; but, v.Capital City R. Co. 23 Or. 471] 32 Pac. 304; exercising an independent judgment, we Saginaw Gaslight Co. v. Saginaw, 28 Fed. think it is a correct interpretation of the con- Rep. 529. decided by Mr. Justice Brown of stitutional provisions. The common council this court; Long v. Duluth [49 Minn. 280], of Detroit, therefore, had no inherent power 51 N. W. 913. See also Grand Rapids Electrio to confer the exclusive privilege claimed by Light & Power Co. v. Grand Rapids Edison the plaintiff in error. E. L. & Fuel Gas Co. 33 Fed. Rep. 659, opinion delivered by Mr. Justice Jackson at circuit. As bearing on the rule, see also Oregon Railway & Nav. Co. v. Oregonian Railway Co. 130 U. S. 1 [32:837]; *Central Transportation Co. [54] v. Pullman's Palace Car Co. 139 U. S. 24 [35: 55].

Did it get such power from the legislature? It is contented that it did by the act under which the Detroit City Railway Company, the predecessor of plaintiff in error, was organized, and to whose rights and franchises it succeeded. This act is the tram railway act, and at the time of the adoption of the first ordi- The power, therefore, must be granted in nance in 1862, § 34 of that act provided that express words or necessarily to be implied. "all companies or corporations formed for What does the latter mean? Mr. Justice such purposes [the railway purposes men-Jackson, in Grand Rapids Electric Light & tioned in the act] shall have the exclusive Power Co. v. Grand Rapids, Edison E. L. & right to use and operate any railways con- Fuel Gas Co. supra, says "that municipa! corstructed, owned, or held by them: Provid-porations possess and can exercise ed, that no such company or corporation only such powers as are 'granted in express shall be authorized to construct a railway, words or those necessarily or fairly imunder this act, through the streets of any plied in or incident to the powers extown or city, without the consent of the pressly conferred, or those essential to municipal authorities of such town or city, the declared objects and purposes of the and under such regulations and upon such corporation, not simply convenient, but interms and conditions as said authorities may dispensable."" The italics are his. This from time to time prescribe." would make "necessarily implied" mean in[53] *In 1867 the further proviso was added that, evitably implied. The court of appeals of the after such consent should be given and ac-sixth circuit, by Circuit Judge Lurton, adopts cepted, such authorities should make no reg-Lord Hardwicke's explanation, quoted by ulations or conditions whereby the rights or Lord Eldon in Wilkinson v. Adam, 1 Ves. & franchises so granted should be destroyed or unreasonably impaired, or sach company be deprived of the right of constructing, maintaining, and operating such railway.

B. 466, that a "necessary implication means, not natural necessity, but so strong a probability of intention, that an intention contrary to that, which is imputed to the testator It is clear that the statute did not explicit- [the party using the language], cannot be ly and directly confer the power on the muni- supposed." If this be more than expressing cipality to grant an exclusive privilege to oc- by circumlocution an inevitable necessity, we cupy its streets for railway purposes. It is need not stop to remark; or if it mean less, to urged, however, that such power is to be in- sanction it, because we think that the statferred from the provision which requires the ute of Michigan, tested by it, does not confer consent of the municipal authorities to the on the common council of Detroit the power construction of a railway under such terms it attempted to exercise in the ordinance of as they may prescribe, combined with the 1862. To refer the right to occupy the previsions of the Constitution, which, if they streets of any town or city to the consent of do not confer a power independent of the legis- its local government was natural enoughlature, strongly provide for and intend lo- would have been natural under any Constitucal government. The argument is strong, tion not prohibiting it, and the power to preand all of its strength has been presented and scribe the terms and regulations of the occuis appreciated, but there exist considerations pation derive very little, if any, breadth from of countervailing and superior strength. the expression of it. But assuming the That such power must be given in language power to prescribe terms does acquire breadth explicit and express, or necessarily to be im- from such expression, surely there is sufficient plied from other powers, is now firmly fixed. range for its exercise which stops short, or There were many reasons which urged to which rather does not extend to granting an this--reasons which flow from the nature of exclusive privilege of occupation. Surely the municipal trust-even from the nature there is not so strong a probability of an inof the legislative trust, and those which, tention of granting so extreme a power that without the clearest intention explicitly de one contrary to it cannot be supposed, which clared, insistently forbid that the future is Lord Hardwicke's test. or that it is indisshould be committed and bound by the con- pensable to the purpose for which the power ditions of the present time an:l functions dele- is given or necessarily to be implied from it, gated for public purposes be paralyzed in which is the test of the cases. The rule is their exercise by the existence of exclusive one of construction. Any grant of power in [55] privileges. The rule and the reason for it general terms read literally can be construed are expressed in Minturn v. Larue, 64 U. S. to be unlimited, but it may, notwithstand23 How. 436 [16:575]; Wright v. Nagle. 101'ing, receive limitation from its purpose

ON A CERTIFICATE from the United States Circuit Court of Appeals for the Eighth Circuit certifying certain questions to be an

CHANCE MINING & MILLING swered in this case between the Del Monte COMPANY.

Both in location and patent the Del Monte | location until it reaches the eastern side line claim is first in time, the New York second, of the New York, into which latter territory and the Last Chance third. When the own-it enters, continuing thence southerly with a ers of the Last Chance claim applied for their southeasterly course on the New York claim patent, proceedings in adverse were instituted until it crosses its south end line. No part against them by the owners of the New York of the apex of the vein is embraced within claim, and an action in support of such ad- the small triangular parcel of ground in the verse was brought in the United States cir-southwest corner of the Last Chance location, cuit court for the district of Colorado. This which was patented to the Last Chance as [58] action terminated in favor of the owners of aforesaid, and no part of the apex is within the New York and against the owners of the the surface boundaries of the Del Monte minLast Chance, and awarded the territory in ing claim. The portion of the vein in conconflict between the two locations to the troversy is that lying under the surface of New York claim. The ground in conflict be- the Del Monte claim and between two verti tween the New York and Del Monte, except cal planes, one drawn through the north end so much thereof as was also in conflict be- line of the Last Chance claim extending westtween the Del Monte and Last Chance loca-erly, and the other parallel thereto and starttions, is included in the patent to the Deling at the point where the vein leaves the Monte claim. The New York secured a pat- Last Chance and enters the New York claim, ent to all of its territory, except that in con- as shown on the foregoing diagram. Upon flict with the Del Monte, and the Last Chance these facts the following questions have been in turn secured a patent to all of its territory, certified to us: except that in conflict with the New York, in "1. May any of the lines of a junior lode which last-named patent was included the location be laid within, upon, or across the [59] triangular surface conflict between the Del surface of a valid senior location for the purMonte and Last Chance. which, by agree-pose of defining for or securing to such junior ment, was patented to the latter. The Last location underground or extralateral rights Chance claim was located upon a vein, lode, not in conflict with any rights of the senior or ledge of silver and lead bearing ore, which crosses its north end line and continues southerly from that point through the Last Chance

location?

"2. Does the patent of the Last Chance Lode mining claim, which first describes the