Cincinnati daily press. [volume] (Cincinnati [Ohio]) 1860-1862, 1860-04-25
CIiy RaiIways-The ultimate Risht of su-

u
90 pervisiOn.
We do not understand that the Superior
Court has at any time denied the existence
of power in the City Council to permit the
use of streets by railway companies. On the
contrary, such power has been, as we under
stand IL, on several occasions, incidentally
recognized, if not distinctly affirmed. The
absolute right of passage over its own thor
oughfares is, or was once thought to be, in
the public. Government, as Judge Storer
insisted in one of his opinions, is, in this mat
ter, the trustee of the public. Now as gov
eminent can only act through its agents, and
as the Council is the only deliberative agent
of government in this city, it follows that
the Council is the only party capable to rep
resent the right of the public in the streets
and highways, or its discretion in respect to
the mode of their occupation.
Yet the Superior Court has, on one or two
occasions, seen fit to over-rule the action Of
the Council in respect to railways, so that
when permission to lay them down has been
accorded by the latter, the companies have
been forbidden by the. former to proceed
with the work, under penalty of heavy
amercements; and the enterprises, in conse-
quence of this obstruction, have been aban-
doned or indefinitely suspended.
Two distinct functions Of the government
having the power each to act independently
of the other, upon the same question, is an
anomaly which, we are inclined to think,
will be found to exist nowhere else than in
Cincinnati. A Court which at once admits
the power of the Legislature to deliberate
and decide upon a given subject-matter, and
then exercises the authority to overrule its
conclusions and nullify its decisions, is q
pretty absolute tribunal and should be pre-
sided over by gentleman of unusual gravity
and weight, or its practices may come to be
looked upon as arbitrary. 1t is the first time
within our knowledge, that the judicial
branch of the government has assumed to
act as an appellate jurisdiction from the Leg
islature; and is, perhaps, the beginning among
us of a new era in the philosophy of popular
government.
1t is to be observed, that the Court and the
Council professedly act upon different predi-
Gates, in pursuit of their conclusions. The
Council is supposed to take the interests OF
the people into consideration, and to de-
termine upon as accurate balance as possible
between public benefits and disadvantages;
while the Court, on the othor hand, appoints
itself the protector of that ultimate right of
supervision which remains to the original
dedicator, and passes to all who are in privity
with him." According to the positions taken
by Judge Storer, in the case of Hosea and
others, this is the paramount right in and
over a public highway, before which all
others must be postponed. Does any highly
respectable proprietor of a lot bounded upon
n street where it is proposed to construct Il
railway, come to the conclusion that such
railway would discommode him, or reduce the
value of his property, the Court as guardian
of the ultimate right of supervision" comes
at once to the rescue, and in the name of the
people prohibits the obnoxious improvement.
1t must do SO. If the objections of landed
proprietors are good in one case, they are
good in all cases. If the Court can act in one
it has no right to refuse to act in any. If it
has the power to grant relief to this proprie-
tor, it has no discretion to refuse it to that.
The condition precedent to an injunction in
any case is simply the showing of an opinion
that the work would operate to the injury of
the 'original dedicator" or of some person
Sin privity with him."
The fact that one department of our NUM-
cipal polity may legitimately act upon one
set of predicates, and arrive at one conclu-
sion, while another department may-the
subject matter and the question being the
same=-as legitimately act upon another set
of predicates, thereby arriving at an opposite
is one which, when it comes to
be generally understood and carried into
practice, will give an entertaining diversity
TO the operations of the government, and
afford great encouragement to people anx-
ious to invest in enterprises like those under
The ultimate right of SUPER
vision" is by no means extinguished by the
construction of the work. 1t "remains to the
original dedicator and passes to all who are
in privity with him." Any time when
gentleman becomes dissatisfied with the
railway which passes his premises, he has but
to call upon the Court, set forth the facts
which evince his ultimate right of super
vision" and, under the aegis of judicial au-
thority, proceed to supervise
This is evidently the idea of the law
adopted by gentlemen who propose to abate
the track upon Western-row-we beg par
don, Centrnl-avenue They have doubtless
consulted with persons learned in the law
who, taking the views of Judge Storer as an
precedent, can arrive at no other
than that the road may be de-
molished under decree of the Court when
ever complaint is made by the proprietors of
the adjoining property. Reduced to its
simplest terms, this is what was meant by
the decision alluded to-a decision of which
It is difficult to speak with feelings of re-
'pect, either toward itself or toward the
spirit by which it was dictated.
The New York Tribune in speaking of the
lbsurd story told by correspondent of the
Mobile Register, that Chevalier Wikoff desired
Pryor to fipht a sham dual With ,,o,.s-