Bids for franchise or construction line $ 404. Highest bidder. Where the charter of a town provided that it might award franchises for the construction of street railways, but required that a franchise of this nature should be awarded to the highest bidder, it was construed as meaning the highest cash bidder. So where a franchise for the construction of a street railway was granted in consideration of the placing by the company of a certain amount of gravel upon the streets, an injunction restraining the construction of the railway was granted, on the ground that this bid was not a cash bid. In New York in granting a franchise for the construction of a street railway, it was held that the common council of Brooklyn, New York, was not compelled to award the franchise to the highest bidder since the New York Laws of 1886,7 providing that such franchises shall be disposed of at auction, is confined to New York city. In Pennsylvania it is held that the opening of bids and the awarding of a contract by the borough council for the construction of an electric light plant, which had been authorized by former ordinances, is not an act of such a legislative character as, under the Pennsylvania statutes, is required to be recorded in the borough ordinance books.10 The power conferred upon the city of St. Louis to authorize by ordinance the construction of a street railway without offering the franchise at public auction, is held not to be affected by a later track at that point. To call a track of this length and so # * Bridge street makes a double track line between the points indicated, and is so operated. Defendant had no legal right to construct the same and its continued maintenance and use is without authority of law," per Stewart, J. 6 Buckner v. Hart, 52 Fed. Repr. 835, affd., 54 Fed. 925, 5 C. C. A. 1, 4 Am. Elec. Cas. 23. 7 Chap. 65. 8 Adamson v. Nassau Elec. R. Co., 89 Hun (N. Y.), 261, 68 N. Y. St. R. 851, 34 N. Y. Supp. 1073. Penn. Gen. Borough Act of April 3, 1851; Act of May 23, 1893. 10 Schenck V. Olyphant, 181 Penn. St. 191, 37 Atl. 258. statute,11 requiring the authorities of a municipality to sell at public auction the franchise or right of way for an electrical line to the highest bidder.12 In this connection it is decided in a case in New York that, where a city is not obligated to sell a franchise to an electric company at public auction the simple fact that one man or set of men of doubtful or unknown financial credit offer to bid more than a competing company for a franchise that is to be of permanent benefit or detriment to the citizens of the city, does not require the common council to accept that offer if its judgment favors another company.13 11 Mo. Act of April 9, 1895, § 1. 12 State, Crow V. West Side Street R. Co., 146 Mo. 155, 47 S. W. 959. 13 Barhite v. Home Teleph. Co., 50 App. Div. (N. Y.) 25, 63 N. Y. Supp. 659, 7 Am. Elec. Cas. 75. It was said in this case: "That body was intrusted with an important duty and in its performance had a wide discretion. The lar ger sum bid in this case was not the all controlling, determining fac43 tor. Other circumstances entered into the question, and the body intrusted with the granting of this franchise, in the fulfillment of its obligations to its constituency, was bound to weigh all the various considerations and then to decide what was for the best interests of the city, and when that decision was reached and made effectual by the agreement, its action could not be disturbed," per Spring, J. 673 § 405. Electric street railway crossing tracks of another street railway. An electric street railway, where it has received the necessary authority and has complied with all the requirements of the law, may construct its tracks across the tracks of another street railway at grade. The fact that one street railway is earlier in its occupation of the street than another does not, of itself, confer upon it any such right as will enable it to obtain an injunction restraining the later company from crossing its tracks. Where both have received grants to construct their lines in the streets of a municipality and have complied with all the requirements of the statute and terms of the grant, they stand on an equal footing, so far as their rights to use the streets are concerned, and a claim by the earlier company that its consent as an abutting owner is necessary to enable such other company to cross its tracks at grade, will not be sustained. Where a company has constructed tracks in the streets, and possibly apparatus for the operation of its road, it thereby acquires certain property rights in such track and apparatus, and the above rule should not be so extended as to confer the right to cross tracks of another company without reference to the fact of materially impairing the operation of such company's road. But, though any of the methods of crossing, which the safety and convenience of the public require, may involve interference with the wires of the other company and necessitate a joint use of tracks and wires at such crossing, this will not entitle the other company to compensation.2 Where such crossing could not be made a subject of agreement between the companies or has not been satisfactorily adjusted by municipal regulation and control, the courts would probably, where it materially impaired the rights of the company earlier in its occupation, restrain the construction of such crossing until some agreement had been reached by the companies, or the municipal authorities had, in the exercise of their power over streets, regulated and prescribed the mode of crossing. § 406. Nature of right of railroad in street it crosses.- The right which a steam railroad obtains in a street or highway which it crosses is merely a right to construct its tracks across the same and operate its road thereon, the street or highway still being subject to any and all the lawful uses to which it may be put; and the fact that a railroad has been granted the right to construct a crossing at grade confers, as a general rule, no greater rights in the street than is possessed by the individual traveler, or by a corporation authorized by the state to 1 Scranton & P. Traction Co. v. Delware & H. Canal Co., 1 Super. Ct. (Penn.) 409. 2 Consolidated Tract. Co. v. South Orange & M. Tract. Co., 56 N. J. Eq. 569, 40 Atl. 15. law to cross the tracks of a steam railroad at grade, using such safeguards as were prescribed by statute, in such cases, the court refused to grant an injunction or to order different safeguards from those prescribed by law. The court said: "Under our general equity powers, conferred by the Public Statutes, chapter 151, section 4, we are of opinion, that when a street railway corporation is constructing its road, in accordance with the powers conferred upon it by its charter, ford R. Co. v. Bridgeport Tract. Co., 65 Conn. 410, 32 Atl. 953, 5 Am. Elec. Cas. 246. The court said: "The legislature has deemed it proper to allow the construction of electric railways in certain streets of the city of Bridgeport. In full view of the danger attending a grade crossing of the plaintiff's by the defendants' road on Fairfield avenue, it has deemed it for the public interest to permit its construction; and it was no imore bound to provide for compensation to the plaintiff for the injury it may suffer than to provide for it in favor of any individual who may have occasion to cross defendants' tracks at the hazard of a possible collision with its cars. The plaintiff took the risk of suffering such an inconvenience or peril when it elected to build its road over Fairfield avenue at grade. Such a crossing in the center of a busy city was a source of danger before the defendants' charter was granted. The defendants' charter does not create a danger so much as increase a danger; and as it is one incident to the lawful use of the highway, the plaintiff suffers nothing which it should not have contemplated as possible when it made its original location, and nothing to which such a location did not necessarily make it subject. The impairment of its prop erty, the interference with the accustomed and necessary operation of its road, and the danger to the lives of those whom it transports. presents simply a case of damnum absque injuria," per Baldwin, J. This action was in the nature of an injunction to restrain an elec tric railway from crossing the tracks of a steam railway at grade, it being claimed that it interfered with the operation of the road and endangered the lives of its passengers. It appeared that there had been compliance with the laws of the State in acquiring the right to construct a street railway, and that in the exercise of the police power the State had prescribed and regulated the manner of crossing the tracks, which the street railway company had accepted, and proposed to act in accordance with. The injunction was refused. See also Chicago & Calumet Terminal Ry Co. v. Whiting, Hammond & East Chicago St. R. Co., 139 Ind. 297, 38 N. E. 604, 5 Am. Elec. Cas. 247; Penn. R. Co. v. Suburban Rap. Trans. Co. (Allegheny Co. Com. Pl., 1892), 1 Penn. Dist. Rep. 636, 4 Am. Elec. Cas. 250. 8 Old Colony R. Co. v. Rockland & Abingdon St. Ry. Co., 161 Mass. 416, 37 N. E. 370, 5 Am. Elec. Cas. 233. Per Lathrop, J. |