this dissent, except the fourth proposition dis*527cussed. In Ms view the city council still has the right to expose the franchise to sale as provided in the Constitution, and ought to do so. In this way the occupancy of the street may be legalized. In this state the power to grant right of way in the streets of a city is wholly in the council. The owner of the abutting property, much less the taxpayer, has no right to interfere so long as he suffers no peculiar damage in the matter of location. The only thing the Constitution requires is that the city shall sell the right. Not having done so the remedy of the complaining taxpayer is a mandamus against the city council to compel it to comply with the provision of the Constitution. But he has not the right alone to sue to oust the street car company as a trespasser, any more than he would have the right to sue any other trespasser upon public property. If the council refused to sue, or was so complicated in its relation to the railway company as that it could not act impartially, then and then only the taxpayer could sue in his own name, but in behalf of the city.
In this view of .the matter, Judge O’Rear thinks the judgment should be affirmed.