The Cairo bulletin. [volume] (Cairo, Ill.) 1872-1878, 1876-01-14


such functions and powers, and are sub
ject to such liabilities u. are expressly
and clearly conferred or imposed upon
them by statute.
| That they are IN many things, rs, for
instance, the police power, merely acting
~ a constitutional part of the
| State duly delegated with proper
ilmction' 10 perform siich oriices
as the state. ~ u whole, could not. with
out great Inconvenience do.
| In the first place. II mu't De- conceded
that az the railroad in question having no
power conferred upon 1t by it. charter to
extend IT, railroad. in streets through
the corpOrated cities along its line. or AT
I ~ terinlni, without consent, we must
look to the general legislative enactment
OF the state Tor the solution OF the
right.
And a. ageneral proposition a respects
steam railways, legislative authroity Is
necessary to warrcnt them TO be placed
in the streets or highways.
The legislature may delegate to muni-
cipal or local bodies the right ~ grant or
refuse such authority, and furthermore
the usual power of general nature in
municipal corporations over streets, are
not sufficient 10 confer npon them the
right to authorize the appropriation OF
streets by ordinary railroads whose track.
are constructed in the usual manner. and
whose trains are propelled by steam
Another proposition, and then to the
question.
The New Lcyee street, which was prop
erly and legally dedicated by the owners
in fee simple TO the City of
Cairo, for the purpose of open
ing Il highway. and being accepted
by il, aud 50 offered for public
use, became public street Of the city of
Cairo, notwithstanding the erection OF an
enlbankment OF earth which temporarily
is intended for The protection from mum
daiion. but is a. much a public street a,
either Washington or Commercial ave
nue.
Tie city OF Cairo is organized under
the Scnerol Incorporation act OF 1872.
under which the legislature fuzzy dcle"a-
ted IL with power TO act in tlss matter of
granting the right OF way tn steam rail-
roads, and which it is bound to follow in
it, direction.
The only way you can grant the right
of way TO this .or any other railroad.
through the city. upon and in one of its
streets. is by ordinance upon the the pc
titon OF a majority Of the owners Of
property fronting the street or such por-
ton as to bc. occupied by the railroad.
Sec section 80, article |, of act of ls12,
Hnras edition, page 223.
ours truly.
IIARMoN II. BLACK.
City Attorney.
The following is the
OPINION OF JUDGE MuLREY.
The question whether the city council
can by ordinances or resolution without
any action Oh the part OF the owners OF
the land fronting and abutting upon new
IeNee street, grant the right of way and
privilege Of laying down and operating
Il railroad track through and along said
new Ieycc street, has been submitted to
me by some of the city council for de-
termination.
Want OF time absolutely forbid any
thing like an elaborate consideration of
the question.
The view, however, which take OF
the matter renders this unnecessary.
II may be promised in the first place that
the city council can exercise no powers
or functions except such ~ are expressly
conferred upon ii by the legislature or
such implied power, % are necessary 10
the exercise Of those which are expressly
conferred. And it may further he OBJ
scNel that municipal corporations are
ut all times absolutely subseryicnt 10 the
legislative will, except 81 iaraS restrained
by constitutional limitations.
These general principles, about which
ilrre can be no controversy, being
conceded, We very naturally. in the first
place turn our eyes 10 the statutes of the
state for satisfactory solution Of the
question.
The ninctieta paragraph Of section @,
chapter -. Oi the Revised Statutes, reads
rs follows The city council or board Of
trustees shall have no power TO grant
the use of or tight to lay down any rail
road tracks IN any street of the city TO
any steam or horse railroad company, ex-
ccpl upon petition OF the owners Of the
land representing more than one half Of
the frontage OF the street, or so much
thereof As Is sought 10 be used for rail-
road purposes" This j. the only statu-
tory provision bearing directly upon the
manner oirNrrcising the right to make
such grant that am aware Of and Ia
my Judgment il is conclusive of the gues-
ton. take 1t As we'll settled law,
without citing authorities Ia
support the proposition, that
whenever statutory right or power
il conferred, and The mode of exercising
such RIGHT OF power is prescribed by the
statute, it cannot be exercised Ia any
other manner. ! am confident that no
well informed lawyer will dissent rom
this proposition. aud that no respectable
authority can be found in conflict with it.
Taking this genera, principle in conncc-
ton with the section Of the statute above
cited, it seems to follow rs Il legal and
logical sequence III at before the council
could make any such grant the owners of
the land more than one-hali
OF the frontage OF The street, would have
to present to the city council petition.
asking that such grant be made. Ia my
judgment the petition in all such eases is
II iurisdlclionai condition, absolutely nee.
cssary 10 pnt the council In motion, and
without which the action of The council
would be simply null aud void, As well
might the county court attempt to lay
ont new road, or proceed TO order the
sale ot q mans estate without the petit
ten required by the statute being first
filed. Without the petition In such eases
the act OF the court wonld be c0,am non
jadice. and. therefore, binding upon no
one. An attempt on the part of the c0lln-
Ri 10 make such grant could hut result |
in complication highly detrimental to the |
best interests OF the city. | have been