, 1880-11-28
THE RAILROADS.
important Decision by Judge Tu.
ley Relating to Private
Tracks.
The Greatest Freight Blockade Ever
Known in the United
States.

States,
Falling OF IN EastBound Traffic Owing
to Shortage in Cars.
IMPORTANT DECISION.
Judge Tuley yesterday delivered an iu-
portant decision in the case of Garritv ys.
Ihe Chicago & Northwestern Railroad Com
pany, on the power Of the city to grant IL
censes to railroad companies to lay down
tracRs and run steam-cars for private adyan-
tage within the city limits. The Judge said.
IN substance: The bill In this case alleges
IN substance that the Chicago Dock & Canal
COMPANY, a stock corporation organized un-
der the laws OF this State, solicited and pro-
cured to be passed by the City Council of
chicago (June 9, 1879 an ordinance granting
! 10 sa!d Company for the term of ten years
tne flghtto lay down, maintain. and use such
railway tracks and switches upon North
Water street, and Illinois street east of the
east line Of st. Clair street, and
across the premises owned by said Company
as might be necessary to afford convenient
railway access to said premises. That the
chicago & Northwestern Railroad Company
now have railway tracks laid upon the said
ILLINOIS street, running towards Lake Mictli-
gan from point about 500 feet east of said
st. Clair street, between which point and St.
Clair street the complainants, three in num-
Der, now own, and for several years past have
owned, lot of land described in said bill,
That the Railroad Company, under pre-
tended assignment from the Dock and Canal
Company, are about to lay down said railway
track in front Of complainants' presmises,
and to the east line Of said St Clair street, at
which point the defendants, Bullen s. Co.,
are about to connect certain railroad
tracks about to be laid west Of
st. Clair street with tho tracks
to be laid east Of said street,
the intent being to form a continuous
BuIten Il Co., on the corner of Pine
and Illinois streets, east on said Illinois
street to Lake Michigan. The bill attacks
the validity of the ordinance, and seeks an
Injunction M against the LAYING Of the railroad
against Bnllen Il Co. making any con-
nections with such railroad tracks at St. Clair
street
The Judge then discussed the reasons al
leged s e on the argument against the validity
Council at the time it passed the ordinance
did not have before tia petition OF the owners
Of majority Of the front feet of that part
of Illinois. street over which the tracks
that the Dock & Canal Company owned much
more than half the frontage, and that it pre-
sented petition for the passage Of the ordi-
nance. After stating that the bill was suf-
ticient to raise question as to the validity
OF the ordinance, though wrong reason was
assigned for such validity, the Judge re-
marked that the question presented was one
OF great Importance, AND one which had
never been passed on directly by the Su-
pren4ee Court: He then continued:
conferred by this ordinance is to be found,
if it exists, in said Clause 80 or Clause Of
said Sec. l, Of Art S, Of the Act for the in-
corporation Of cities and vi'ages> Sec sets
ii; ii ~ and % Clause % % IS IS As sl'' follows:
OF the right to lay down any railroad tracks
horse Taroad Oh s e2cept anp apon pe
ton Of the owners Of the land representing
more than one-half of the frontage Of
the street, Or 50 much thereof as is sought sI
other Clause . gives the Council, in, regard
to streets, the broad power to regulate the
neither Of these provision gives the city any
express, power to grant the use Of street for
as fresd a vsz axnEsxk Sat aahoq9 athoqE9
to grant the use of street to steam or
horse railway company. yet by necessary
inference, the Council being prohibited from
granting such use except upon petition OF
the power to make such grant, having first
received such petition. If this Clause 9o
contained I'LL express grant of power to the
City Council to grant the use OF streets to
steam and horse railway companies, it would
follow that the power was limited to making
such grant to steam and horse railway COM
panies upon the familiar doctrine that, the
Legislature having specified to whom such
grant may be made iii, this instance to steam
and horse railroad companies), there is an
grant to any other person or corporation.
The same construction must prevail where
the right to make the grant exists by, virtue
of an implied power. Therefore, III place OF
the power, it contains, BY fair Implication,
n prohibition against the exercise of such
power.
But it is contended by the learned counsel
for the defendants that Clause y, which con-
fers the power to regulate, Streets is an
Pile authority for the power to pass this ordl-
nance. If there is in Clause 80 an implied
prohibition against the exercise OF suca Il
power, know of no rules OF construction
6y whch e faht b G1 tne pggGf 20
with that implied prohibition. It will he
noticed that under the former charter Of the
city there was an express power given to
direct and control the location OF railroad
tracks, in which respect it was stronger and
different from the present city charter. 1t IS
to be admitted that it is a tair argument that
the cases referred to hold that the City
of Chicago has the power, by reason
of its ownership of the fee Of the streets, and
from the general power to regulate the use
of the streets, to grant to steam Tor horse)
railway company the. right to lay down
tracts in, and use the same for, railway pur,,
poses. But this is not such case. In al!
the cases referred to the power was placed
upon the ground that such use Of the
streets was q public use, and for the public
benefit ami convenience. And in all cases
there was by legislative act the concurrence
of the Legislature to such n use OF the
street by the corporations to whom the same
was granted.
But where the Legislature has not given
the person or corporation the right to con-
struct and maintain a public railroad: ard
where the use to which the tracks are to De
put is exclusively private use and for prl-
vate benefit, a very different question troW
that involved in the cases cited is presented.
Although the city may own the fee in the
streets, it has taken and holds 1t III trust for
the public use. 1t cannot, without lesls-
latiye sanction, sell a public street, or lease
it, or give it away, nor can it use it Tor any
other than public purposes, or for any other
use than that of a public street, 1t cannon
erect building or place any other oost1uc-