Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-04-02
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street MlIulQ llS lHaChHf ahN III WV fNSN
outside of the track Oh either side.
The amendment to the charter, OBJ
tanned by the Mayor and Aldermen dur
ine the last-winter, authorizes them to
require the Company to pave between
their tracks, and two feet on each side.
We understood this to be the claim Of
the city: and we thought it very clear
that there wss no such obligation on the
Company, by virtue of that provision Of
the Charter in regard to keeping the
track and two feet on each side, in good
order and repair, or by virtue Of the
amendment to the Charter. We knew
of no ether claim or question.
The City Attorney gives it as his opin'
ion, that the company may be compelled
| TO paw between its tracks or rails. The
two feet on each side, he gives up. The
authority on which he relies, is Mayo
and aldermen Of Franklin Us. Ma6erTgr
s HUsfPH. 1863, where the Supreme CouTi
| of Tennessee held that a town ordinance
| recurring an owner of a lot to make a
pavement eight feet wide, in font Of his
lot, for a foot pavement, was constitu'
I~tiopal. The Court considered this ordi'
nance as requiring a duty to be per
formed for the w~ell-being and comfort Of
| the citizens of the town. It was, they
| thought. in the nature Of a nuisance &c
be removed, and not a tax, and they
| thought that though the lot in question
was unimproved, there was no such in
| equality in the case as constituted OF
preston.
The authority relied on by the Tennes
see Court, is Goddard, Petitioner, DC, II
| Pick. 5O4, in which it was held that a by
law Of a city requiring the owners OF
occupants Of houses bordering on streets
to clean the snow from the sidewalks IN
| front of their lots, was valid as a police
regulation. The Court thought thai
there was no taxation in that, but only 9
dirty to be performed, in respect to q por
ten of the street, in which the party hat
a peculiar interest and a benefit from it
distinct from that which he enjoyed IL
! common with the rest Of the community
Whatever the duties of owners Of lott
| fronting on streets may be as to keeping
the sidewalks in repair, and even If the
Supreme Court Of Tennessee correctly
held that to require them to pave such
| sidewalks is virtually to require them
TO remove ~nuissnees, it Is very certain
! that the earriage-way Of the streets be
longs to the corporation, subject to the
trust for public uses of them, and that II
| could not compel the owners OF vacant
lots TO pave to the middle of the car
riage-wav of the streets in front Of then
lots. Indeed the Tennessee case stands
alone, unsupported by any other and
can hardly be admitted to be Law. And
if it could, the owners Of lots being
deemed to own the naked fee TO the
middle Of the street, the decision could
not establish the right to compel 3 Rail
road Company, which has only an case
ment, to pave the whole length of q
street between the rails Of their road.
At all events, we were considering, not
the general power Of the City, but
whether il was invested with special
power by virtue of the Charter and the
Supplement to it. As to that, there can
be no doubt thst it is not. Aud as to a
general power, we think that the deci-
sion in Tennessee does not establish it,
and that it never viii be affirmed by
that or any other Court of Errors and
Appeals.
In the case of Con1DTs. Of FaUaU VS..
n. y. and Erie Il. r. % Il Barbour,
N. Y. Rep SIS, there was a reservation
in the Charter of the Company, Of power
in the Legislature to alter, modify or
repeal it and the Court held hat oven
with this, the Legislature could not, by
subsequent act require the Company to
cause a proposed new highway 10 be
taken across their track, and to cause al
necessary entertainments excavations and
other work to be done on their road, for
that purpose, at their own expense. The
Court said this was, IN effect, to take a
part of their road and impose q serious
burthen on them, without making any
compensation. They said that if the
prescribed arrangements were necessary
for the safety Of the passengers or freight
conveyed on the cars, they might be
required of the Company, being within
the powers reserved, and taking their
property for purposes connected .VEh
and for the benefit of their own insG
tons.
In short, as will appear below, the
Railroad Company Gu only be com
PEELED to aid in Saving, by the exercise
of the power Of taxation on the part of
the city.
A lamented member of the Memphis
Bar, in the Bulletin of Friday last, cited
ct full length an Illinois case, TO estab-
fish this right Of taxation, and seemed to
consider it " an emphatic negation of
our conclusions But, on the contrary
it completely oBirais those very conclu-
sions. These were that the Compasy
could not be compelled Itself to pave the
railroad track. The decision quoted, in
wise affirms that such 8 power exists,
but only that a private easement over a
street may be tdred as property,
to contribute, in proportion to its value,
towards the expense Of paving and curb
ing the street. On that question we
said nothing; for whether that right
or not, it is no ground for delay in
our streets. TIE city has TO pare
them, in any event. 1t is only a ques-
Of the duty of the company TO pay a
tax; not of its duty to itself DO the
The Supreme Court Of Illinois, in the
case cited, tCiy Of Chicago IS. Baer,)
held, a it had holden in Gig Of Chicago
2s. LaTned, 81 IN. 267, that " the Con-
i~titutional provision requiring equality
d taxation, applied as wellto special as
3essments for improvements of this Char
seter (paVingl as to any form of taxa
ion " and that when the burden is
be imposed upon those who are bene-
tilted by the proposed assessment, Hmust
,e imposed upon ali t0hO are directly ben
fitted, in TIE ratio Of the benefits" To
,e lawful, the assessment must be in the
of advantages or benefits. There
equality in imposing public bur-
lens. awe holditto be clear, " the Court
aid, "that while the power to make
hese special assessments may be sus-
aimed, under the right Of eminent do
main, yet in making them the Constitu-
nslprincipleo OF equality applies as fully
s to the ordinary modes Of taxation that
person properly eamst be Improved
Z tie erpcRse Of another, and that no
assessment can Be sustained
,hich imposes all tie cost upon n portion
T he property benefited, and Ieares
ther property equally benefited, a0hoAy
The Railroad Company has
ut an easement, a right Of use, as to the
round on which its track lies. The
Ity still owns the fee, aud cannot COM
the Company to bear the whole bur
en- of paving it. The Company, the
illinois Court says, has a property in the
md, a franchise, a right of exclusive
,cupaney or use in q particular way