Cincinnati daily press. [volume] (Cincinnati [Ohio]) 1860-1862, 1860-04-30
Are street Railroads n Monopoly of Public
ThorOughfarese

HcflDefS.
Are street Railroads n Monopoly of Public
Thoroughfarest
In the state of betweenity in which the
power of the City Council to license street
railroads is suspended by the opinions of the
Superior Court, which oscillate between the
right to authorize single track and no right
TO authorize any, with a fair prospect of
coming out at the latter end of the horn, the
question whether the permission to lay a
railway track in a street is an exclusive oc-
cupancy of it, and therefore monopoly of a
public highway, is disposed of by the Court
as if there could be no controversy on that
In his last opinion Judge Storer said that
if it were not that the companies had ex-
pended large sums of money on these lines,
he would have no hesitation in saying that
a Court of Equity would enjoin the City
Council from granting any permit to use
these roads. 1t will hardly be affirmed as a
legal principle, even in the Superior Court,
that right to the perversion of n highway
from its purpose, and to exclude the public
from its use, can be acquired by any expendi-
ture of money, and it will be seen that ac-
cording to Superior-Court law, these rail-
ways and large investments are suspended
iB very dubious condition.
The Court assumed that the laying of a
track in a street or an exclusive occupation
of it, q like easy assumption of fact with
that which distinguished its opinion in the
case of Hosea and others against the Ohio
md Mississippi Railroad Company, in which
it was assumed, as premise, that a railway
track on Front-street would cut off the con-
veyance of goods from the city to the river.
In his last opinion on the Pendleton Street
Railway case, Judge Storer said:
"As question of power it seemed to him
there was no doubt that a municipal CORPORA
ton having the control and supervision of the
public highways and bound to keep them
open and in repair, have no power to grant
to any number of individuals, or to a body
corporate, any right in its nature exclusive
that tends to a monopoly, or that has in il
greater or broader claim to enjoyment than
every other individual has.
s"It cannot be doubted for a moment that
the grant of privilege to occupy the streets
of the city by railway is inconsistent with
the right to use it on the part of others to
whom the power of competition is not left
directly opposed to the ordinary use and en-
joyment of the thoroughfare, inconsistent
with the claim of a man who drives dray, q
wagon, or an ordinary vehicle for pleasure
because all are required to give way, to oc-
cupy secondary position. A very necessity
of the right conferred is that the Council shall
give legal right to the Company to be pro-
tected; and, hence, in passing the ordinance,
the City Council have declared that these
Companies shall have the exclusive occnpa-
ton of the track while their cars are running
and even go 80 far as to even lay penalty on
the driver of dray or q ordinary vehicle, if
he shall obstruct the road. This is necessity,
and no fault can be found with it as a matter
of legislation, if the right exists But this
necessity proves that the grant itself is incon-
sstent with the ordinary right of every citi-
ZEN
IL WIN hardly be denied Lnat the City Coun-
Gil have the power to regulate the travel
upon the streets to the end of the greatest
public convenience, yet under this theory
any regulations are in the nature of exclu-
sive privileges, and therefore demand the in
reference of the Court The Council. for
public convenience, have ordered that the
cars shall take the center of the street, and
that other vehicles shall not obstruct them.
- 'iiiD 10 o ihOAOpOllY anu lHCOHSlSIenI Wlll
the free use of the street by others, so also
is the regulation that vehicles shall take the
right hand side. 1t equally gives IA broader
claim TO vehicles going in one direction; sit
is in its nature exclusive" and one-sided; it
is inconsistent with the free use of the
street by vehicles going in an opposite di-
rection; ''its very necessity is that it shall be
legally protected" and that penalties shall
be laid on drivers of vehicles who shall OBJ
struct this exclusive occupation of the right.
hand side of the street.
1t will readily be seen that the Superior
Court has entered upon pretty extensive
field oflabor. The principle laid down by
the learned Judge is nothing else than thai
any regulations Of the use of the streets
which are made to promote general con
venience, are grants of exclusive privileges
1t is not alleged that the rails themselves ar,
inconsistent with the equal use of the stree
by other vehicles, but the requirement tina
other vehicles shall turn out and give thu
cars the center in passing, constitutes the ex
elusive privilege. The right Of the cars II
the use of the streets is not denied; the opin
ion of the Court is based solely on the re
quirement that other vehicles shall turn ou
and give the cars the center when they meet
Yett will not bedenied, outside the Superio
Court, that this regulation is intended for tn,
general convenience. The regulation is jus
as much an exclusive privilege of other We
hcles to the sides of the street, driving tn
cars to the center and to "a secondary posi-
ton" as it is to'the cars. =.
Furthermore, the whole ground of tn
Courts action is based on the exceptions
regulation of the Council, assigning to cars
position on the streets different from that {
other vehicles, leaving it to be understoo
that if they followed the same order as othC
vehicles the Court would have no ground
action; yet this monopoly of the center
the street is, in the case of the Pendleto
railway, forced upon the company by IL
order Of the Court prohibiting them froI
laying double track on which the cars coul
follow the regulations of other vehicles, an
conhning them to the center, and to whG
the Court calls an exclusive privilege and
monopoly; and the learned Judge has him
calf laid II down "a n general nrincinle 90,