The daily Cairo bulletin. (Cairo, Ill.) 1878-1???, 1881-01-14

age been vacated between Eighteenth 70
Thirty fourth Streets and become vested in
said company Ms herein before set forth.
"CArRo AND VINoENNEs RAILROAD Com
pANY."
find that the City Of Cairo, by Ordi-
mace approved April 10th, 1869, granted
to the Cairo and Vincennes Railroad Com
pany "the right of way over and along
Commercial avenue and st. Charles Street"
with ''the right and privilege to lay down
and operate a single or double line OF rails,
land no more) over and along said
Commercial avenue and st. Charles Street,
and across Levee Street to any point at
which the depot of said Company may be
located and established; provided however,
that such rights and privileges shall be,
and are hereby granted only upon the con-
dition and understanding that, said Com
pany comply with certain requirements IN
regard to the mode and manner Of construc'
ton and maintainence of said tracks and
operating of the same, in said ordinance set
forth. The ordinance contains no clause OF
forfeiture, and no limit as to the time with
in which the said requirements shall all be
complied with or the granted rights cxer-
cised.
1t has been claimed by the distinguished
counsel tor the people in the case of the
people &c. vs.. G. & V. r. r. Co. % lii. ia
(Which wnet by appeal from the Alexander
Circuit Court to the State Supreme Court,
and was there dismissed for want Of juris-
diction, without the points raised being d.
recty passed upon to whom ! am greatly
indebted for a copy of his very able brief
filed in that case
1st: That said Ordinance was not author
lied under the City Charter at date of its
passage.
2nd That if authorized, the requirements
therein set forth were conditions precedent
to the exercise Of the rights therein grant
ed and that such requirements not having
been complied with, nor the ordinance ac-
cepted by word or acts, prior to the change
of organization of the city and its rc-organ-
ization under the general law, said ordi-
nance, was repealed by the general ..u,w,
a
which forb'ds the city council from granting
the right to lay railroad tracks in the streets
except upon petition of the owners
of the land representing more than
one half of the frontage of the street to be
used for railroad purposcs-the previous
charter of the city containing no such re-
strictions, and as a consequence no such pc
tition having been made,
am not required to pass upon the question
of fact as to whether or not SAID Railroad
Company did or did not accept SAID 0rdi-
nance prior to said reorganization; but
even assuming there was no such acceptance
and with all due respect for the brief of the
learned counsel before referred to- | cannot
yield assent to the positions he assumes. In
my opinion. (and l deem it not essential to
this report to enter into any elaborate dis
cussion or citation of law or authori-
ties):
LIST: The City, at date Of passage of said
ordinance, had ample power under its then
charter to pass the ordinance, and the pro-
cess Of reasoning by which such power is
denied, seems to me very narrow and
forced construction of the powers granted
to the City under that charter and to said
Railroad Compay under its charter ana
can never be sustained by the courts
end That, under proper construction
of said ordinance, the said requirements
upon which the exercise of the rights there
in granted are prcdicated, can not be proper
ly regarded as conditions precedent to the
exercise of those rights-some of them at
least are requirements that could not in the
nature of things be complied with until
after the tracks were laid and the railroad
operated; nor is there any time specified
in which such requirements shall be COM
piled with and if conditions precedent, it
would be difficult to say when, if ever. said
granted rights did vest or could vest, as
some of the requirements are continuing
ones, having no ending.
Ord Said ordinance was not repealed by
said reorganization. twas valid ordi-
nance when passed. and was still "in force"
at date of such reorganization, aud not
repealed or amended" up to the time 1t is
conceded that the railroad company dld act
under and accept the ordinance. And I'M
der this state of facts, am constrained to
hold, in accordance with the opinion given
by me to the Council May 27 1880, in mat
ter Of the Cairo & st. Louis Railroad Com
pany, that the above. mentioned ordinance