Cincinnati daily press. [volume] (Cincinnati [Ohio]) 1860-1862, 1860-04-25

double track on broadway, ana permitting
them to lay a single track. The learned
Judge held that the City Council have con-
troll and supervision over the streets, but
that their power to permit the use of the
streets for a railway did not extend beyond
q single track. We quote;
1.-THE point, however, on which he would
now decide this case was, that he did not
think the City Council had any right what
ever to authorize more than one track on any
street in this city" ..t
The power of the Council it seems, is
single track power; even turnouts, we pre-
sumo, would exceed the power of the Coun-
Gil. II is exhausted in providing q track for
the people to travel in one direction, leaving
them destitute of way to return. If legal
principles were not so very Procrustean, we
might suppose that the relative width of the
streets would be a consideration, inasmuch
as a double track is far less obstruction to
other travel, on a street sixty-seven feet eight
inches in width between the curbs, like
Broadway, than a single track is to one
thirty-nine feet two inches wide, like Fourth
street-one of the most thronged streets of
the city, or to one thirty-six feet wide like
Western-row; or twenty-four feet wide like
John-street, each of which have RAILWAYS.
But it seems to be purely question of legal
power, not subject to conditions or circum-
stances, and if the street were half mile
wide, the legal power of the Council would
be guaged exactly at single track all the
same.
Any surprise at this novel limit of q legal
principle disappears when we come to sec
the sound reasons on which it is founded.
We quote from the report.
"His reasons were these: On the oath of
August, a resolution was passed in Council,
declaring that all railways to be laid
down, under the ordinance in question,
should occupy the center of the street
thereby giving construction to the power
they had assumed. If the City Council could
lay down two tracks they could lay down
twenty and if they could occupy more than
the middle of the street, according to their
own theory they could occupy the whole,
and could change the streets from their orig
inal purpose"
1t appears that the legislative body has
defined the limit of its own power, and can
not revise its own constructions; thereby get
ting itself into legislative deadlock which
it is the duty of the Court to hold the
key Of
The Council having ordered that all rail-
ways shall occupy the center of the street,
the Court has decided that two tracks can not
occupy the center oE the street, it being a
physical impossibility; therefore, the Council,
by its own order, has cut itself off from per-
mitting double tracks. If the learned Judge
should apply the acute analytic powers of his
mind to the investigation of single track
railway, he would perhaps discover that it
was composed Of rails laid five feet two in
ches apart, and that it is just as much
physical impossibility that two rails sep
Grated by that space can occupy the center
of the street, as that two tracks separated by
a space two feet four inches, can do the same.
From this he would arrive at the conclusion
that the Council had bound itself up in such
a fix that it could permit but single rail
quite primitive mode of conveyance.
1t is also forcibly argued by the learned
Judge, that "if the City Council can lay down
two tracks, they can twenty"
The argument is so logical, that perhaps it
is capable of extension. Logic does not usu-
ally begin and end at precise numerals if le-
gal principles do. If the power to lay down
two tracks carries the power to lay down
twenty, will not the power which the Judge
admits, to lay down one track, carry the
power to lay down twenty? and from that
can he not derive the power to lay down two?
1t is argued with equal force by the Judge,
that "if they could occupy more than the
middle of the street. they could occupy the
whole" There might, to some, seem to be
difficulty in defining just where the middle of
the street terminated, if the learned Judge
had not established it judicially. Two rails,
five feet and two inches apart just compass
the middle OF the street, and it is physically
impossible that four rails can occupy the
middle. We quote further
Besides, this is the only company to which
this grant has been given; and why it was
that the City Council should select one COM
pany, and give it privilege not given to the
Others, was to the Court matter of surprise.
1t looks like partial legislation, though per
haps good reason may be given for t."
BY this it will be seen that as the opinion
progresses it becomes, not question of want
OF power in the Council to grant two tracks,
but why it has not exercised it in all cases;
and because it has not, the Court seems to
hold that the power is lost by non user, and
that the Council is bound to come before the
Court and remove its surprise" by explain
ing why it has made this distinction.
In conclusion, the Court decided that as by
act of the Legislature the Council had the
power over these grants, the Court would
permit one track to be laid. We quote:
"lnasmuch as the Legislature. at its last
session, had, indirectly, sanctioned the exercise
OF this power by the Council to grant the
and as an outlay of money had
already been expended, the Court was willing
10 permit ONE TRACK TO BE LAID. But the
exercise of any such power on the part of
municipal body should be strictly controlled"
If the Legislature gives the Council entire
power over the whole loaf, the Court will
permit it to use half. The Court attends the
tap OF the Legislative power which belongs
TO the City Council, and decides when it shall
be turned on, and when cut off, and whether
It shall be drawn with single or a double
'pigot.
There are other legal principles laid down
n this opinion, which seem so valuable to the