Spring Water Co. v. Town of Monroe

Crow, J.

(dissenting) — I dissent from the majority opinion. The act of 1905, on which appellant relies, fixes and limits the territory over which ratification is to extend. Its manifest purpose is to validate franchises within territory over which the commissioners still retain jurisdiction, and relieve the grantees and holders of void franchises from the necessity of making further application to the county commissioners for their renewal or validation. At the time of the passage of the act, the jurisdiction of the county commissioners over the streets and alleys of Monroe had been terminated by the incorporation of the -town, and it would seem that the words “outside the limits of incorporated cities and towns” were only intended to apply to roads, alleys, and highways still under the jurisdiction and control of county commissioners at the date of the passage of the act, and to exclude those then within the territory of any such municipality, although outside at the time of the granting of the original void franchise. To adopt any other construction would be to withdraw from the town council a portion of its power and authority conferred by Bal. Code, § 1011 (P. C. § 3524), and deprive them of that complete authority over the streets, alleys, and highways within the municipality granted by that section.

I am of the opinion that the act did not validate the appellant’s void franchise as to any street, alley, or highway, which at the date of its passage was within the municipal boundaries of the town of Monroe. When the town was incorporated, appellant was occupying a portion of its streets without legal right or authority. The complete jurisdiction of the town at that time extended by operation of law over all such streets freed from the burden of any franchise or rights asserted by the appellant, and this court should not hold that the act in question afterwards imposed any such burden, without the consent of the municipal authorities, unless it was the clear and manifest intention of the legislature that such a condition should result. The use of the words “upon highways outside of the limits of incorporated towns, . are hereby confirmed and declared to be valid,” precludes us from adopting any such construction.

The judgment should be affirmed.