Joseph McKenna

“ It is, besides, a strange contention to me that a municipality of a state, because of its ability, physical, it may be, more than legal, to refuse to exercise powers conferred upon it, can assume or assert other powers. ”

“ Of course, directness and simplicity of methods are not always used, but some argument can be based on their omission, and it is natural to believe that had it been intended to give the power contended for to the city, words would not have been employed which would have to be turned from their first and legal signification to express it, and which could be claimed to be in opposition to other parts of the act, and made dependent, besides, upon contracts with the companies, which could only be amended by consent of the companies. ”

“ Certain persons had been given the power by an ordinance of the city to construct a street railway. The right under the ordinance was questioned, maybe it had been adjudged illegal, and the act of 1859 was passed. It explicitly gave, in my opinion, the right to construct and operate railways in the streets, and gave authority to the city only to regulate the exercise of the right. ”

“ It is said that time is the wisest thing on earth, and taking to ourselves its wisdom, in 1906, we are sure we would have seen in an enterprise just starting, and yet tentative, the growth it might attain and the measures that would be necessary to restrain and control it. But if there was anyone capable of such prophecy, the act of 1859 did not challenge its exercise. ”

“ And neither before nor after the passage of the act of 1865 was the ninety-nine-year term recognized or acted upon in ordinances granting the use of the streets.' I am uncertain as to the conclusion deduced from the statement. It needs some explanation. Standing alone it may produce an erroneous impression. If the companies accepted the ordinances, conceding the power of the city, without protest or reservation of their rights under the act of 1865 to longer terms of occupancy, there could be no controversy over the interpretation of the act of 1865. ”

“ The view I take of the acts makes it comparatively unimportant to consider the city's charter. There seemed to be a necessity for the acts, and they were complete in themselves, independent of other grants of power, except what were continued or confirmed by them. ”

“ Against this all the rules of interpretation protest, and the rules of construction cannot be invoked to justify a greater liberty. The purpose of construction, it is true, is to arrive at conclusions beyond the absolute sense of the text. ”

“ It need not be pointed out that the agencies of government are kept, in a great measure, to co-operation by sense of duty and propriety, and if they should, disregarding that sense, exercise the mere physical power possessed to refuse to act, disorder, temporary at least, would result. ”

“ Whatever we may profess, it is not easy to realize the conditions, thoughts, and purposes of another time. In 1859 nothing indicated the necessity of giving the city the power now contended for. In 1859 there could be no foresight of the development of street railways. ”

“ It is obvious, as far as words can accomplish it, and as directly as words can accomplish it, the companies were granted the right 'to construct, maintain, and operate' railways upon the streets of the city. ”

“ Let us not overlook that a municipality must have warrant, express or necessarily implied, for what it does. It, too, is within the rule of strict construction. Dill. Mun. Corp. § 91.
In the grant of franchises from the state and their regulation merely by the city there was no inconsistency, and this division of functions was not only natural of itself, but comported with the policy of the state, as explained in Chicago City R. Co. v. People, supra. ”

“ Our reports abound in cases where, against bold and able controversy, public grants have been sustained, and where division in the court has marked with emphasis the strength of the doubts which existed. ”