Cincinnati daily press. [volume] (Cincinnati [Ohio]) 1860-1862, 1862-01-10
LAW REPORT.
HuPERroR couRr.


TIE PER-CApITA QUESTION DISPOSED or
General Term.-At q full session Of this
Court, the case Of the City Of Cincinnati Vs.
The Pendleton and Fifth-street Market.space
Railroad Co., was decided to-day-the opin-
ion being delivered by Judge Hoadly. The
great question involved, was the validity of
the per capita tax.
The proceedings before the City Council,
and the ordinances passed by that body in
relation to the street'railroads, were referred
70 in detail. The present controversy grows
out of the twelfth section Of the act Of 1852,
as amended in April, 1857, and the tenth
section of the same act. The contract be-
tween the city and the Railroad Company
derives its validity from this section, and if
not warranted by the terms of this law, it
could not be enforced.
The defendants counsel insist that their
franchise was derived from the State, and
that the city can not ask compensation for
the grant of such use, and that the words,
manner" "terms" and conditions" refer
only to the mode in which such use shall be
enjoyed, and that the stipulation for the pay
ment of one cent on each passenger, as
compensation for the use of the street, was
an attempt to raise revenue without au-
thority of law.
Secondly, that at all events the city
can not recover money payment to q
greater extent than any pecuniary injury
to be apprehended, aud which by the other
terms of the ordinance were provided for
and that this was payment for the consent
of the city, and not by way of compensa-
tion for the injury, loss or inconvenience the
municipal authorities may sustain, or in
consideration of anything parted with by
them,
The public authorities must have authority
in law for all their acts, as they would be
invalid when unauthorized by proper legis-
lation. 1t was unnecessary to consider
what the title of the city may be, or whether
she has any. She has the care, supervision
and control of the streets, and is the repre-
sentative of the general public, and is enti
tied to compensation. To receive in money ar
exact equivalent for any injury done to the
| streets to the extent of the public right il
them, money must be paid and the city may
ask such compensation, because such grant
may increase the travel on other thorough
fares, and require the opening OF new streets
and increase the police expenses Of the city
This was an expense not provided for a
ali, except by the license fee, and so far al
the question now in hand, that would bt
open to the same objection. The righ
granted to the railroad company was an ex.
elusive grant, to sustain which the whole
power of the Police Court, with penalties
was given by the city. 1t was said that thi:
was an enterprise for the public use; but il
was for the benefit also of private corpora
ton.
No proof was given that this per captt
charge was unreasonable or excessive. Tht
defendants had themselves entered into tht
contract without duress or fraud; and on tn,
whole case, the whole Court was of opinion
that the terms thereof did not conflict will
the provisions of the law referred to, ant
that it must be sustained. The iudgmen
was for the plaintiff.