Nash v. Lowry

• Decision Date: 25 July 1887
• Citation: 33 N.W. 787,37 Minn. 261
• Parties: NASH AND OTHERS v LOWRY AND OTHERS.
• Court: Minnesota Supreme Court

37 Minn. 261

33 N.W. 787

NASH AND OTHERSvLOWRY AND OTHERS.

Supreme Court of Minnesota.

July 25, 1887.

(Syllabus by the Court.)

The common council of St. Paul, by ordinance, granted in terms the right to lay street-railway tracks in any or all the streets of the city, (with certain exceptions.) Subsequently the legislature “confirmed and validated” the ordinance. Held, that it is immaterial to the validity of the grant whether the parties to whom the right was granted constitute a corporation, or only a partnership.

Also, that the grant is a contract; and, while the council could not make such contract without the explicit consent of the legislature, it became binding upon the city as soon as the legislature “confirmed and validated” the ordinance; so that thereafter the council could not rescind or revoke the right so granted.

Appeal from district court, Ramsey county.

W. H. Mead, J. M. Gilman, and C. J. Thompson, for Nash and others, appellants.

H. J. Horn, (C. K. Davis and J. M. Shaw, of counsel,) for Lowry and others, respondents.

GILFILLAN, C.J.

The argument in this case covered a great deal more ground than is necessary to go over in order to arrive at a correct decision upon it. The facts, so far as are necessary to present the merits, are these: January 8, 1872, the common council of the city of St. Paul passed an ordinance in terms granting to certain persons in it named, or such of them as should accept and comply with the terms thereof, together with such other persons as should thereafter become associated with them, and to their heirs, executors, administrators, successors, and assigns, permission and authority and consent of said council to lay a line of railway, with single or double track, with all necessary or convenient tracks for turn-outs and side tracks and switches, in any or all of the streets of said city, with certain exceptions and restrictions not necessary to be here noted; the carriages or cars thereon to be propelled by none other than animal power. More than two-thirds of the persons named in the ordinance duly accepted it. An act of the legislature in February of that year assumed to declare the persons so accepting, with some others, a corporation under the name of the “St. Paul Street-Railway Company,” and to confirm and vest in said corporation the rights specified in said ordinance. The persons named in the act, or a majority of them, organized under it, and thereafter assuming to be and did business as a corporation under said act by said name, and exercised the rights specified in said ordinance. In 1877 a mortgage upon all its franchises and other property, executed by said St. Paul Street-Railway Company, was foreclosed by action, and the mortgaged property sold, and in October of that year the purchaser at the foreclosure sale, with others, assumed to organize, under chapter 30, Laws 1876, as a corporation by the name of the “Saint Paul City Railway Company,” and in October, 1878, the district court, in...