Covington v. South Covington & C. Street Ry. Co., 246 U.S. 413 (1918)

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Covington v. South Covington &

Cincinnati Street Railway Company
No. 225

Argued March 19, 20, 1918
Decided April 15, 1918
246 U.S. 413

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES

FOR THE EASTERN DISTRICT OF KENTUCKY

Syllabus

A grant of "all the right and authority" that a city "has the capacity to grant" to construct, hold and operate a street railroad on designated streets, without a hint of limitation as to time, is a grant in perpetuity if the city has authority to grant perpetually.

An ordinance entitled "an ordinance prescribing the terms and conditions of street passenger railroads within the City of Covington," providing for proposals and a contract to be made with the best bidder respecting specific routes and declaring that "all contracts made under the provision of this ordinance shall be for the term and period of twenty-five years," held not to be addressed to the scope of future ordinances, and not to limit the term, otherwise perpetual, of a franchise for other routes granted by a later ordinance.

One street railroad company held a perpetual ordinance franchise, and another a limited one with but eight years to run, with the right, however, at expiration, to secure a new franchise or compensation for its property. An ordinance, entitled as granting the right of way to the first company over the streets held by the second, authorized the first to contract for the second’s right, and to "occupy and use" such streets "subject to the conditions, limitations and restrictions" contained in the ordinances regulating the first company’s rights in the streets it already occupied, but, as a condition, obliged the first company to give up part of its line which would be but imperfectly supplied by the new rights even if they were perpetual. Held that the ordinance granted a perpetual franchise to the first company, and was not merely a consent that it acquire the right of the second.

Where not otherwise construed by the state court, legislation vesting the streets in a city, and giving its authorities exclusive control over them and its council exclusive power to establish and regulate all sidewalks, streets, alleys, lanes, spaces and commons of the city, is to be taken as empowering the city to grant street railroad franchises in perpetuity. Owensboro v. Cumberland Telephone & Telegraph Co., 230 U.S. 58.

A street railroad is one of the ordinary incidents of a city, and, with respect to the municipal granting power, stands on a different footing from steam railroads habitually run over separate rights of way.

Affirmed.

The case is stated in the opinion.