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(See S. C. Reporter's ed. 48-55.) Power of common council of Detroit-privilege to build railroads on streets-power to grant easements in public streets.

1 The common council of Detroit had no inherent power to confer the exclusive priviNOTE. As to municipal power to impose conditions when giving assent to street railway in street; power to assent as involving power to impose conditions; agreement by railroad; conditions enforced; express power to impose conditions; want of power or consent; conflict with other authority; conditions after completion of contract; right to control street,-see note to Galveston & W. R. Co. v. Galveston (Tex.) 36

L. R. A. 33.

As to acquiring right of way; authority to use strects, see note to Adams v. Chicago, B. & N. R. Co. (Minn.) 1 L. R. A. 493.

As to right of street railways to use streets, -see note to People, Third Ave. R. Co., v. New ton (N. Y.) 3 L. R. A. 174.

Street railroads; rights of, in the street; grants to, by municipal corporations; power of such corporations to impose restraints or conditions upon street railways; consents by abutting owners; forfeiture of rights.

An irrepealable contract for the use of a street by a street-railway company is not in excess of the powers of a municipal corporation which is invested with full power to regulate and control the use of streets. Baltimore Trust & G. Co. v. Baltimore, 64 Fed. Rep. 153.

A city of the third class is not prohibited from granting by special ordinance to an electric railway company the right to construct its tracks in the city streets, by Pa. act June 14, 1887, § 32, prohibiting cities of the second class from so doing. McHale v. Easton & B. Transit Co. 169 Pa. 416.

A consent given by the supervisor of a township to a street-railway company to construct a line on its highways, upon the consideration that the latter employ him and his son for life at an agreed price per day, does not bind the township, and is void. Lehigh Coal & Nav. Co. v. Inter-County Street R. Co. 167 Pa. 75. A mere license, and not a franchise, is given to a street-railway company by an ordinance granting the consent of a city to the use of streets for its tracks. Belleville v. Citizens' Horse R. Co. 152 Ill. 171, 26 L. R. A. 681.

A provision in a city charter, making it unlawful to grant the right to construct a street railroad except to one who will agree to carry passengers thereon at the lowest rate of fare, is superseded by N. Y. Laws 1890, chap. 565, giving every railroad corporation the power to construct its road upon any highway which Its route shall touch, subject to the limitations of such chapter. Adamson v. Nassau Electric R. Co. 89 Hun, 261.

The consent of property holders on a designated street is not necessary to enable a street railway company to make use of the tracks of another company already in operation, under N. Y. Const. art. 3, § 18, providing that no street railway can be constructed or operated without the consent of such owners. Îngersoll v. Nassau Electric R. Co. 89 Hun, 213.

A city council which is authorized to regulate the use of streets and to permit or prohibit any street railroad in any street, but which has "no power to grant" the right to lay down any railroad track in any street except on a specified petition, cannot grant the use of a street for railroad purposes except on the petition provided for. North Chicago Street R. Co. v. Cheetham, 58 Ill. App. 318.

The right of a city to grant or withhold its

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lege claimed by the Detroit Citizens' Street Railway Company to construct and operate railways on certain streets, under the ordin ance of November 24, 1862.

The Michigan tram railway act. conferring on railway companies the exclusive right to use and operate railways constructed by them, provided that they shall not be authorized to construct a railway through the streets of any city without the consent of its municipal authorities, did not give the city of Detroit the power to grant to a railway company the exclusive privilege to occupy its streets for railway purposes.

consent to the operation of a street railroad is not property of the city, so as to constitute a grant thereof for a less price to one party than another is ready to pay a waste of property, within a statute authorizing an action to prevent waste of city property. Adamson v. Nassau Electric R. Co. 89 Hun, 261.

The question of the consent of the municipal authorities to the construction of a street railroad does not necessarily arise on a motion to confirm the appointment of commissioners under N. Y. Laws 1890, chap. 565, § 94, making such appointment depend upon the failure to secure the consent of the property owners. Re Auburn City R. Co. 88 Hun, 603.

The consent of township supervisors to the construction of a street railway upon an ordinary township road is sufficient where such consent is given at a meeting held for the purpose after four meetings to deliberate upon and discuss what their action should be, although no minutes of their proceedings were kept by them. Scranton & P. Traction Co. v. Delaware & H. Canal Co. 1 Pa. Super. Ct. 409.

The consent of the township committee is necessary to legalize the construction of street railroads in any township, under N. J. P. L. 1893, p. 144, prohibiting the construction of any street railroad on the street of any "municipality" without the consent of the "governing body" having the control of the streets in such municipality. West Jersey Traction Co. Camden Horse R. Co. 53 N. J. Eq. 163. A city in consenting to street-railway franchises under Milliken & Vertrees (Tenn.) Code, § 1921, cannot limit such consent to a period less than the duration of the franchise granted by the state. Africa v. Knoxville, 70 Fed. Rep. 729.


In the absence of a statute there is no implied restriction springing from public policy upon the power of a city to grant a street easement to a railroad or street-car company hay. ing the requisite franchises from the state unlimited as to time. Louisville Trust Co. v. Cincinnati, 47 U. S. App. 36, 76 Fed. Rep. 296, 22 C. C. A. 334.

A resolution by the dock department of a city granting a revocable license to a street-railroad company to construct its road over a given street confers no authority for its construction, where such department has no power to grant any franchises. Central Crosstown R. Co. v. Metropolitan Street R. Co. 16 App. Div. 229.

City authorities have no right to grant streetrailway franchises except in so far as they may be authorized by the legislature, and then only in the manner and under the conditions prescribed by the statute. Beekman v. Third Ave. R. Co. 153 N. Y. 144.

Validity of conditions imposed by city or highway authorities in granting consent to a street railways to use the streets. People, West Side Street R. Co. v. Barnard, 110 N. Y. 548; Abraham v. Meyers. 29 Abb. N. C. 384; Cincinnati v. Mt. Auburn Cable R. Co. 28 Ohio L. J. 276; Allegheny v. Millville, E. & S. Street R. Co. 159 Pa. 411; Cincinnati v. Cincinnati Street R. Co. 31 Ohio L. J. 308; Plymouth Twp. v. Chestnut Hill & N. R. Co. 168 Pa. 181.

The legislature can, without consulting the municipality, grant the right to a street-railway company to lay its tracks on the streets of the city. Central Railway & Electric Co.'s Appeal, 67 Conn. 197.

A city can impose no terms on the construction of a street railway upon its streets, where

streets, in perpetuity and in monopoly, must be conferred in express words, or, if inferred

& The power to grant easements In the public court affirming the decree of the Circuit Court of the County of Wayne, in said state, dismissing a suit in equity brought by the Detroit Citizens' Street Railway Company against the city of Detroit et al. to enjoin said city et al. from acting under an ordinance granting to others the right to construct street railways upon certain streets in

from other powers, it is not enough that the authority is convenient to them, but it must

be indispensable to them.

[No. 236.]

Argued April 26, 27, 1898. Decided May 23, said city. Affirmed. 1898.

IN ERROR to the Supreme Court of the State of Michigan to review a decree of that

the city's consent is not made necessary for the construction of the road. Philadelphia v. Empire Pass. R. Co. 177 Pa. 382.

A street-railway company has the right to diverge from the highway and to construct its railroad on property secured for that purpose In order to avoid a grade crossing at the intersection of a railroad. Pennsylvania R. Co. v. Glenwood & D. Electric Street R. Co. 184 Pa.


The provision of N. Y. Const. art. 3, § 18, requiring the consent of the abutting owners and local authorities, or the substituted consent of the court, to the grant of street-railroad franchises, does not authorize the legislature to confer upon local authorities power to consent to such a grant if otherwise illegal, or prevent It from repealing such power by subsequent legislation. Norris v. Wurster, 23 App. Div.


The consent of all the local authorities through whose districts the established route of an electric passenger railway passes must be obtained, in Pennsylvania, before any part of the road can be built. Reading Co. V. Schuylkill Valley Traction Co. 14 Mont. Co. L. Rep. 10.

A permit granted by the park commissioner of the city of Brooklyn, under N. Y. Laws 1888, chap. 583, tit. 16, § 2, subd. 5, which designates the location for a railway switch, will not authorize its construction in the absence of the consent of the common council, since the provisions of N. Y. Laws 1896, chap. 825, do not Impliedly repeal the ordinance making such consent necessary. Irvine v. Atlantic Ave. R. Co. 23 App. Div. 112.

The consents of abutting owners to the construction of a street railway, contemplated by the New York Constitution and the railroad act, cannot be acquired by an individual and assigned by him to a corporation thereafter organized to construct the road, but they must be given in the first instance to a corporation authorized to construct the road. Geneva & W. R. Co. v. New York C. & H. R. R. Co. 24 App. Div. 335.

A city may require the payment of license fees as a condition of granting a franchise to a street-railroad company, and such company on accepting the franchise becomes liable to pay the fee, under the provision of the Illinois statute. Byrne v. Chicago General R. Co. 169 Ill. 75.

Statement by Mr. Justice McKenna: The plaintiff in error is a street railway company of the state of Michigan, organized

That a street-railway company under its general corporate powers may have the authority to receive an estate in the streets beyond its own life does not necessarily empower the city to grant such an estate. Detroit v. Detroit City R. Co. 56 Fed. Rep. 867. Conditions imposed by a municipal corpora.

tion in giving the consent required by Pa. Const. art. 17. § 9, to the construction of a street railway within its limits, that a fixed fare shall be charged for passengers and a certain percentage of the dividends be paid to the city,are valid. Allegheny v. Millville, E. & S. Street R. Co. 159 Pa. 411.

The "public convenience or necessity" contemplated by Conn. Pub. Acts 1893, chap. 169, $8, providing that no street railroad shall be built or extended from one town to another in the public highways so as to parallel any other street or steam railway, unless the superior court or a judge thereof shall have found that public convenience or necessity requires its construction,-means such a condition existing at the time of the application in respect to the applying railroad, the mode of public travel, the manner in which those needs are to be supplied, and the probable effect of the proposed road upon the whole question of adequately supplying those needs, as well as in respect to the road proposed to be paralleled, that in the judgment of the trior will justify the interference with the private right of the latter road. Re Shelton Street R. Co. 69 Conn. 626.

An obligation to maintain a street railway is not imposed by the grant of a mere privilege to construct and maintain it. San Antonio Street R. Co. v. State, Elmendorf, 90 Tex. 520, 35 L. R. A. 662.

A municipality has no authority to grant a right to lay a street-railway track in an alley and operate cars thereon, where, in view of the narrowness of the alley and the frequency with which the cars are required to be run, it would result in the loss of the benefit of the use of the alley to the abutting owners. Watson v. Robertson Ave. R. Co. 69 Mo. App. 548. Time fixed by Civ. Code, & 502, before its amendment in 1895, within which a streetrailway track must be completed in order to preserve the franchise to occupy the street, cannot be changed in the grant of the franchise. People, Warfield, v. Sutter Street R. Co. 117 Cal. 604.

City may attach to grant of the right to occupy its streets with street-railway tracks conditions necessary to protect itself from pecuniary liability and to secure the health and welfare of its citizens, and may resume the rights granted, upon noncompliance with such conditions by the grantees or their successors. Springfield v. Robertson Ave. R. Co. 69 Mo. App. 514.

A corporation Incorporated under the Pennsylvania general railroad laws as a steam railroad company cannot acquire the rights and franchises of a street passenger railroad company, without reincorporation under the street railroad laws. Potts v. Quaker City Elev. R. Co. 161 Pa. 396.

The consent of the local authorities having control of the street and of the owners of one half in value of the abutting property required by N. Y. Const. art. 3, § 18. and of the N. Y. railroad law, § 91, to construction, extension, A corporation organized under Pa. act April or operation of a street railroad, is necessary 4, 1868, becomes necessarily a steam railroad to entitle a street railroad company to use the for the carriage of passengers and freight in line of another company. Colonial City Tracthe manner provided by the general railroad tion Co. v. Kingston City R. Co. 153 N. Y. laws, and has no power to carry on the bus-540, Affirming 15 App. Div. 195. ness of a street passenger railway company. A municipality does not waive the forfeiture Com., Atty. Gen., v. Northeastern Elev. R. Co. of the franchise of a street railway company 161 Pa. 409. to maintain and operate its road in the streets for nonperformance of conditions subsequent, by its failure to take any action to remove the tracks after the breach of the conditions, or to take any proceedings to have the franchise declared forfeited. People, Warfield, v. Sutter Street R. Co. 117 Cal. 604.

A street-railway company which has accepted

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 corporation..... And provided the corporafrom 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.

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."

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.

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

*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 construction of a street railway in a street are not confined to the conditions required by the New York railroad act, but may affix any further conditions not contravening the statute or rerelating to matters over which other bodies have complete control. Abraham v. Meyers, 29 Abb. N. C. 384.

The resolution of the board of aldermen of the city of New York consenting to the grant of a street-railway franchise under N. Y. Laws 1890, chap. 565, need not be published as quired by the New York consolidation act, § 80, In regard to resolutions disposing of property 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 Pass. 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 provi 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

"The state shall not be a party to or in-
terested in any work of internal improve-
ment, nor engaged in carrying on any such
work, except in the expenditure of grants to
the state of land or other property.

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

By an ordinance passed November 14, 1879, it was provided further that "the powers and privileges conferred and obligations imposed on the Detroit City Railway Company by the ordinance passed November 24, 1862, and the [50] amendments thereto, are hereby extended and limited to thirty years from this date." 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 prets these provisions adversely to the contenaforesaid. The bill was dismissed, and, on tion of plaintiff in error, and, reviewing prior appeal to the supreme court of the state, the cases, declares their harmony with the views decree of dismissal was affirmed. From that expressed. "The scope of the earlier decidecree the present writ of error has been duly sions," the court said, "is clearly stated by prosecuted to this court. 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 against injustice and oppression at the hands [52] of the local majority. And what we said in 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

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.

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

Messrs. John B. Corliss, Charles

A. Rollins for defendant in error.

Constitution, that the people of every hamlet,
town, and city of the state are entitled to
the benefits of local self-government, the Con-
stitution has not pointed out the precise ex-
tent 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


Mr. Justice McKenna delivered the opinion of the court:

*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 rallway 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

The provisions of the Constitution which are pertinent to the case are as follows:

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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 Railcay & 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 B. 466, that a "necessary implication means, unreasonably impaired, or sech company be not natural necessity, but so strong a probadeprived of the right of constructing, main- bility of intention, that an intention contrary taining, and operating such railway. 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 stat ferred 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 provisions 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 and 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

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