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HomeMy WebLinkAboutOrd1917-063 r-- ,....,;,: ,', ~ ... _.if " ~RDINANCE NO.lo~ An ordinanoe repealing Ordinance No. bt~ whioh is an ordinance entitled;An ordinance to acquire for park and street purposes, fractional Lots,One (l),Two (2),Three (3),Four (4),Five (5),Six (6) and Seven in Blook Six (6) of the Frank L Ballaine TO'Nnsite of the Town of Seward Alaska,and authorizing the City Attorney to bring oondemnation proceedings in the name of the to'Nn of Seward,Alaska and. take such other ster's as deemed advisable to acquire said prop- erty for the purposes stated, and for other purposes. BE I T ORDAINED BY THE CO;!}:ON COmWIL OF THE CI TY OF SEWAF.D, ALASKA: ~ /"f:' That all of ol'dinance No. SII_, 'nhich is an ordinanoe ,passed by tee Common Council of the Oi ty of Seward Alaska,on tha 20th. day of November 1916 and entitled; "An ordinance to aoquire for park and street purposes, fraotional lots,One (l),Two (2).Three (3),Four (4),Five (5),Six (6), and Seven (7) in Block Six (6) of the Frank L,Rallaine Townsite of the town of Seward, Alaska, and authorizing the city attorney to bring oondemnation proceedings in the name of the to'Nn of Seward,Alaska,and take such other steps as deemed advisable to acquire said property for the purposes stated,and for other purposes~BE AND HEREBY IS REPEALED, AND THE City Attorney is hereby ordered to disn,iss the condemnation prooeedings,brought in the name of the to'N'n of Seward Alaska tccondemn the property therein desoribed and discontinue any and all proceedings and negotiations for the purohase of said property. I_~ Passed the Common Council of the City of Seward,Alaska this the ~day of ~1917, (J Approved t~ i2IJiay oJicIIJI'9'7 a>~ 'ij\ d.U. -, Mayor. Attes (/~j !~ t ,(L~ V' \.. J. '" c;,~ <7'), ,I' f'-v' {\ i' J ii' I y ) t. ) , )t.-,{'., ) ,It) I "' I ~ C:t. 1 J -1 '-- v /', '. f ,'.~ ,({J'J'(,:~~ \....~ .... "'. ''<:I,', " il C , . i~. r"; \~,:- : ",,'(\. v "---~ l"::'~ ,." ORDINANCE NO. 63 An ordinance repealing Ordinanoe No. 59 whioh is an ordinanoe entitled; An ordinanoe to aoquire for park and street purposes, fraotional Lots One (1), Two (2), Three (3), Four (4), Five (5) Six (6), and Seven in Block Six (6) of the Frank L. Ballaine Townsite of the Town of Seward Alaska, and authorizing the City Attorney to bring condemnation proceedings in the n~~e of the town of Seward, Alaska and take such other steps as deemed advisable to aoquire said rrcp- erty for the purposes sta.ted, and for other purposes. BE IT ORDAINED 9Y THE COMMON COUNCIL OF THE CITY OF SEWARD;, ALASKA: That all of ordinanoe No. 59, whioh is ~n ordinance, passed by the . Common Council of the City of ~eward Al&aka, on the 20th day of Nevember to ~cQ.uire 1916 and entitled; RAn ordinano~for park and street purposes, fra.ctional Lots, One ~l), Two (3), Three (3), Four (t" Five (5), iSix (6)~ and Seven (7) in Blook Six (6) of the Frank L. Ballaine Townsite of the town of Seward, Alaska, and authorizing the oity attorney to bring condemnation prooeedings in the name of the town of Seward, Alaska, and take suoh other steps as deemed advisable to aquire said property for the purposes stated, and for other purpoees, RBE AND HEREBY IS RF.~EALED, AND THE City Attorney is hereby ordered to dismiss the oondemnation prooeedings, brought on the name of the town of Seward Alaska to condemn the property therein desoribed and discontinue a.ny a.nd all prooeedings and negotiations for the purohase of said property. Pa.ssed the Common Counoil of the City of Seward, Alaska this :-:..:;; the 6th day of Au~u~ 1917. ---'~'.'_. ..- -..-..-.-.,- --' Approved this the 6th Au~ust. 1917. day of Sam'l McDonald Ma)ror. Attest: O. H. Poehlmann Municipa.l Clerk. r= I I 518 Page 1 To the common Council of The Town of Seward. Gentleman: I herwith submit to you my opinion in answer to the varioue legal queetioml propounded by you. Q,UESTION ONE. Frank L.Ballatne purohaeed of the United states the land upon which the town of Seward is located prior to ~ay 1905 and pla~d the eame for a town site: On the eighth day of -ay 190~e made a formal dedieat1cm of the streete and alleye as shown upon said plat,said ded.. ieation being in the following language: "Know all men by these presants that the undersignHt#!" Frank L. Ballaine is the owner in fee simplepf the tract of land above described and that the said Frank L.Ballaine has dedicated and donated and here- bl doee dedicate and donate to the public the use of all the avenues, streete and alleys shown upon the map hereto annexed and dee.r1bed in the dieoription hereto annexed ae public highwaye for paseage over the same by ordinary vehiclee and foot passengers only,eubject to the right of Frank L.Ballaine,hie heire and aseigne to construot,maintain,and OPI Irate in,'" along andthrough the length of any and all avenuee,streete and alleys and any portion thereof,all rail-ways of every deecription, street Rail-~ays,Elevated Rail-Ways,Under ground Rail-Ways , Telegraph Line..Te~ephone Lines,Power Lines and Lighte,Gae lains and Lights,Water Main. and ~drants,and all excavations and embankments,tracks,poles, wirel,tubee,tunnels,oonduits,pipes and main,s there"r,all of which righte are he~eby expressly excepted and reserved to said Frank L.Eall~ aine,his heirs and assigns forever as fully and entirely as if no deditation of said land had ever been made: In witness whereof the said Frank L.Ballaine hereunto set his hand and affixed his 6eal,this the 6th. day of l,~ay A.D.l905. On the 7th. day of June 1905,the plat and dedication was filed for record;In the meantime,between the eighth day of may and the seventh H day of June 1905 the said Frank L.Ballaine conveyed to divers and sun- dry persons a large number of the lots shown on the plat describing them by Jot and block,without reservation,and especially conveying the a~purtenanees thereto. It is evident from the reading of the dedication,tl'1at L.r.Ballaine did not convey to the publi~the parimount title to the street! and alleye;It ie aleo clear that he could not create,by his sweeping reeer- yation,rights he did not possess,but he did reeerv the paramount title .nd eome of the righte he already possessed,conveying to the pUblic oertain easements only. Seward at that time was not incorporated and it would eeem that the zeservatione made by Mr.Ballaine were wise precautions to prevent ua- due ueurpation of the streets and all eye until there was a corporation !- I-I T -1 I I I: ~ Page 2 to take oontrol.But if it was the intent of Mr.Ballaine to retain those right to himself as a c,mmereial commodity he certainl1 over looked a very important prinoipal of law,namely,that a conveyance of real-estate desoribing it by the number of the lot and block is a conveyance with ref/erance to the streets and alleys upon which it abuts and unless there is a reservation in the deed,clearly showing a different intent, oonTeys all the title of the grantor to the middle of the abu~ng streets and alleys:There being no reservation in any of the deeds exe- cuted by Mr.Ballaine the purchaser in each conveyance took all the #II title possessed by ~r.Ballaine to tlle center of t~e abut~ng streets and alleys; But seemingly to make it sure that he was conveying every thing he especially mentions appurtenances in the granting clause of each deed~ the reservations in the dedication to the pUblic being appurtenances, the clause in the deed granting all appurtenances certainly eliminates all doubt. It is currently reported that ~r. Ballaine has executed an instrument purporting to convey to the Electric Light Company,and the Water Company a right of way over the streets and alleys of the town. . I ha~e seen no confJrmation of the rumor,but if he did execute such an instrument,the only effect it would have ,would be a permit from Mr. Ballaine to the grantee to occupy the side of the streets and alleys so far as they abu~d upon lots belonging to him,but could in no way have the effect of granting permission to use any part of the streets or alleys abU~ng upon property to which he had previously parted with the title. Seward not having been incorporated at the time ~;r. Ballaine dediea- ted and recorded his dedication,to the pUblic,of the streets and alleys of the town,there was no provision of law whereby a franchise could be granted:Although the power to grant franchises is vested in the soverBi~ power of the state or government,congress has not seen fit to make any provisions for the exorcise of that power except through the municipal- itiee created by ii. But we find in chapter twenty two of the compiled lawe of the Territory of A1.aska which is devoted exclusively to the sub jeet of eminAPt domain,makes ample provision for every contingency, to r-'- .-.-........ ......--..........,.~.'~ Page 3 aequire rights of way over streete and alleys of un-inc:orporated towne.. Thia act wae paeeed June 6th.1900, and was i~orce long before ~r. Ballaine acquired title to the town site of Seward. This act a1eo provide for acquiring rights of way in incorporated towns,but before proceeding under that chapter it would be necessary to procure a permit or franch~ , se from the town;Thie becomes necessary for the reason that the law giv- es the town council the supervision and control of the streets and all- eye of incorporated towns in Alaska,and we find that Sect.636 of chap- ter twenty two,compiled lawe of Alaska,providee,that:"Before property" "can be taken it must appear that the uee to which it is to be applied" "is a use authorized by law~ It being necessary to procure a permit of franchise to ocupy the streets and alleys of an incbrporated town it could not be shown that such a use wae authorized by law until such permit or franchise was procured. It neeeesarily follows that if the public service companiee now operating in the town of Seward has not already procured a right of way over the streets and alleye of the town of Seward there i5 no way they can now secure euch a right,except by applying to the council and procuring a franchiee or permit of that body to make such uee of the etreete and alleye of the town as may be neoeeeary in the conduct of the businee8 in which the company is engaged. Had lir. Ballaine taken the precaution to reeerve out of each deed the rights reserved in the dedication it would certainly have been hie to diepose of as he saw fit until such time as the town became incorpo- rated,when his rights would have been eubject to the couneil'S control over the streets and alleye:However.his righte would have always been sUbject't' other public service compa.nies,to ex~rcise the right of emin4nt domaiJile Q,UESTION TVfO. What are the powere of the town council over the streets and alleye of the town? This quet'lt~on Gan be answered only in a general way,ae it is impoe- ible to anticipate the numerous queetione that will arrise from time to time in adminietering the affairA of the town;For that reaeon each ques- tion will have to be dealt with ae they ariee:Paragraph four of eeet. r - Page 4 !.Il . "" 627 compiled laws of Alaska,reads as follows: "To proTide for the loca- "eation oonstruction and maintainance of the necessary streets,alleys," , "erossings,sidewalks,sewers,and wharves.If such etreets,alleys,sidewalk! "or sewers or parts thereof is located and construoted upon the petition "of the owners of two tltirds 6n Talue of the property abu~ng upon and" "effected by such improTnlent,then two thirds of the cost of the same" "may,in the discretion of the council be collected by the assessment" "and leTey of a tax against the abu~ng property, and such tax shall be" "a lien upon the same, and may be collected as other real-estate taxes" "aae Golleeted. Paragraph 14 of the same section further defines the powers of the ... town council in the following language:"To take such action by ordinance "resolution,or otherwise,as may be necessary to protect and preserTe" "the liTes,the health,safety,and the well being of the people in the" "town and to publish all ordtnances. It certainly appears that the power of the Gouncil OTer the streets and alleys of the town are very broad and comprehensiTe,and when we add to those powers alreadyenumerated,the powe~police regulation it would seem that they are broad enough for all practical purposes. Q,UESTI01~ THREE. Has the council the power to enter into any contract under the terms of which it cannot be fully completed during the term of that council'? " My answer to that question is ,tHAI II CAK,-the author.ties are uniform on that subject. The city council is a duel body haTing two seperate and distinct functions to perform;one function is legislatiTe, the other is to conduct the business of the city. The council in its business capaeity cannot make a contract that . woul,d abriige** its legislatiTe ~owers,aB such contract would be ag~st public policy and vOid,but a contract is not necessarily void because it might in future abridge to some extent the power of the council to legislate. The same rule applies to the town council,in this regard, as applies ~o the legislature of the state or to the cong~ess of the United states. The council in its business capacity has the same power to eontract as the directors of any other corporation. Q,UESTION FOUR. Hae the town council the power to grant franchises and if so has it the power to grant unlimited or exclueive franchises? The power to grant franchises is Teeted primarily in the eOTereign power of the governmentbyt that power can be delegated to the municipal- itiee,but to vest s.eh power in a municipality it must be delegated in ~ Page 5 I\.. clear and un-mistakable language of be nece~~arily infe~d from the pOwer~ that are specifically granted. I find upon a earful examination of the law t~~t eongre~~ has not delegated to the munieipalities of Alaska the power to grant franehi~es in specific terms,it neQessarily follows that unless such powers are necessarily infer~d from other specific powers granted. that the municipality has not that power. Paragraph 5ix of Cect,627 compiled jaws of Alaska in defining the powere of the town coundl uees the following worde;"To providlt!or fire "protection,water 5upply,lighte,wharvee,publio health and poli~pro-" "tection and the relief of the destitute and 'indigent". The powers above numerated are specifically granted in plain and unmietakable language;Thie being the case it follows that every other power nece5~ary to eary out the provision of the power~ above granted are neceesari1y implied: Therefore if the council in its jUdgment i5 convinced that the best interest of the town demande that a franchise be granted to an Electric Light Company,a Water Company,or a Gas Company there is no doubt but what the council has the power to grant such a franchise. Regarding a Telephone Company tnere is some doubt in my mind about the power of the council to grant a franchise,for the reason that the statute is not 50 epecific in delegating the power to the council to make provisions for a telephone syetem,but there is no doubt but what it ha5 a right to enter into a contract with a telephone company grant- ing it the U5e of the streets and alleye for that use;The only differ- anee between the righ*s granted,would be,in the case of the permit, the company might ,under certain circumstances,be compeled to resort to the right of emin.-ntdomain to secure the rights of abutlfng property owners,where if the contract was a franchise ,such property owner could not enjoin the construction but would have to content him5elt' with an action for damages. The using of the word franchise in a contract will not make it a franchise,or the absen~e of the word franchise in a con- tract would make it no leS8 a franchise if such infact was its legal effeet. In my jUdgment it makes but little difference wheather a contra. et between the town and a public service company amounts to the dignity of a franchise or not,in either case the contract must be obtained be- fore the streets can be used for the purpose and in either case both par ties are bound by the contract,and as I have previously said the 11#1,,# r Page 6 differance i5 more apparfent than real,if the contract did not have tlle dignity of a franchise and any abu~ng property owner became obstreper- oue it would be an easy ~atter to go into the court and bring condemna- tion proceedings which would cause but little delay and the property- owner would be in no better Pos~ition than he would have been had he contented himself with a suit for damages. The council cannot grant an exclusive fra.nchise or permit,neither can it grant an unlimited franchise or permit, for the reason that such grante are against public pOlicy,and cannot be infer..d from ot:her powerll granted,and congress has made no specific grant of such power to the municipalities of Alaska. Q.UESTION FIVE. What control pas the council over the l.;lectric Light Plabt,the Water Plant,and the Telephone plant ,regarding their use of the streets and alleys of the town of Seward. When the town of. Seward was incorporated it found these companies occupying certain streets and alley of the town;The firet wae furnishing light,the second water and the third a telephone eerviee to the inh~t~- nee of the town;Each was engaged in a necessary pUblic serTice,and all I haTe preTiouely stated the paramount title to the streets and alleys of the town was and is vested in the abu~nb property owners subject to easemente granted to the general public. Ihe property owners were perm~ing said companie5 to use said streete and alleYll,without obJection,therefore,the presumption of law was and i5 that the companies were lawfully OcculYing said streete and alleys,in eo far as the town wae concerned,l'rhet,fr legalb so with regard to the abut~ng property owners I do not at this time give any opinion; The com- panies were at that time and ever since have been rendering a necessary public serTiee,which more than compensated for the uee made by them of said streets and alleys. ., Each company had llpent considerable money in constructing the plan- te and had acquired vested rights,so far as the town w~s concerned,which , muet be respected so long as they did not become a nui5anc~lIoweTer, their rights did not extend beyond the streets and alleys thet were ~>. .' Page 7 then occupying and to such streets and alleys only sO far as they were then actually occupying the sa,me. They have rlo right to extend or enlargl2.. the service ,in any respect ,wi thout first ,obtaining a permi t from the council 50 to do, but such a permit may be irr:plied from the nature of the contracts made between the council and the company,or it may be implied from the fact that the council permits such extension without formal objection;It is therefore,very important that the council jelouB~ ly guard its rights in all of its dealings with either of said companies euch implied rights would be construed to .be permits for a reasonable length of time ,but what would be a reasonable time would be a question of fact to be a.ccertained in each individual case and in all probability the courts would have to be resorted to in each case rendering the solu~ tion very expen~i ve and a~oYing. For this reason the council should be careful in making each contract to see that nothing was left to be implied. It ie clearly within the power of the council to hold them with in the limit~ they now occupy or permit an extension of the service upon such term~Only,ae the council may prescribe. It is also within the power of the council to compel them to conform to such reasonable regulations ,< preecribed by the council as may be necessary or proper,to secure to the pUblic the best posible service,use of the 6treets,poli~protection and regulation, and such other regulations as may be necessary or proper for the well being of the inhabitance of the town. What regulations are reasonable and what are unreasonable must be decided in each individual case ae it ma.y;kise. If the time should ever come t~at other publiC service companies shou- Id procure franchise5 or permi ts frorn the council to occupy the streets and alleyt5 for the same purposes as 8,ny one or a.11 of the preflent compa- niel!l are rendering,and there should no longer be ~nece~~ty for the exiet- anCe of anyone or all of the companies now op~ating,it or they would then become a nuisance and the council could then compel them to remove their poles and other obstructions frOIn the streets and alleys of the town,there being no contract between them and the city,while the opposi4- tion company hav'ing such contract,they could not plead veeted rights 1IrfHfI11##iltHIfMf