Telegram-herald., 1888-08-14
NOT TO Be DISSOLVED
r-s sI~sEr sal~.y INJUNCTION
Saes~ as4sxsusssy's Dssisis1 - tas S-ss
sfssb@ E.sf street A@Esrsasa ChaFeh
Az4lass the street. Railway
sf Gssaa kzR l2s.

IA ths c.ss Of ths Rslsrn1sd church against
me street Railway Csnpany
Ths East stfsss R<fOruaed Church
-
TIE street. Ralssy Company, Of Crane
Rapids.
Aa application i made 10 this case for
lesss 70 he q supplemental ansssr. and Tor
dlssoi zon Of the IA iongtio1 heresoi0fe
granted, restraining The company ff0ni using
a steam a.Otof On East-st ia hOEt u the
premise. OF ths con- mplsinsnt
Ga hearing sftsr The answer vas nled. =
preliminary Injunction was grated in sc-
conda1os Win the prayer OF toe biii. and
sas cAssd apon the sr0and chiefly that the
cit{ and township Of Grand Raplss lad co.
or hnsts Jurisdiction over the street. and
taAt 40 authority from the CITY having been
ahOsn 20 maintain q street railway II last
ST. operated oy steam motors the eom psDy
we're tncs operating without right and xsrs
| therefore restrained
To overcome this difficulty the company
hss secured the enactment OF an ordinance
OF the city granting under certain restric-
| tioas and on certain condi lions ths right TO
operate the railway By steam motors, ana
| IL Is claimed that under the authority Of
/ this ordinance and the ordinance Of the
| 10 snship the company Is now fully entitled
OF right Co operate its road
| The present application Is for leave to ole
an answer setting out the enactment Of this
| ordinance. the acceptance o. the ordinance
| oy ihe railway company. and also for
| dissolution of the Injunction. Three oo-
| Isctions have been urged ali relating 10 the
validity or the force and effect OF the ordi-
| mace.
| have no doubt that If the defendant so
| desires it should be entitled 10 hle the sup
piemsn.al answer for the purpose OF putting
| on the record the questions upon which it
Quires . flnzl judgment of the court. as II
an attempt should Dc made topass upon
| the question upon the merits at this time.
and The defendant should De excluded from
| ming such supplemental answer. there is
no method by which . review OF the decis-
| ION which would really go 10 the whole
| merits OF the controversy between the par
ties could be had. As have no disposition
| to thus cut OF the right of review, shall
| permit the answer to be filed If desired. and
give the defendant an opportunity 70 pro-
cesd 10 . hearing and have q review OF the
4 question involved II desired.
The more important question Is whether
| upon the hling Of this answer the I'M unc-
ton heretofore granted should be dissolved.
! Three objections are urged which 90 TO the
validity or to the force and effect OF the or
| dinance.
| First-It Is contended that the ordinance
was not legally adopted. and this for two
| reasons. IL Is said that the ordinance
should have had q vote Of two-thirds of the
| members OF the Council. The charter pro-
vision Is that an ordinance which requires
the expenditure of money shall require for
its adoption . two-thirds vote of the Coun-
| cal. Ii Is contended that, as the expenditure
| OF money is involved in the enactment of
the ordinance, the charter requiring II to be
published that this ordinance comes within
the terms Of that provision. | am not able
TO azyve with the contention. j think what
| WAS intended vas To distinguish between
4 ordtrances involving by the term of the
ordinance" an expenditure of money, and
those which did not contain such provis-
| ions, the former requiring two-t thirds vote
and the latter majority vote.
= II 10 next said that the ordinance 10 in
| valid for the reason that it appears that
| there were present sixteen aldermen, OF
| whom eight voted in the affirmative. seven
| in the negative and one declining TO vote
The Mayor upon this vote declared
the ordinance carried. Numerous cases are
cited TO show that If during the delibera-
1 tions Of the body less than majority of
4 those present cast vote in the Affirmative,
| the question cannot be treated "a carried.
\ The cases, however, are cases, so far as I
| have examined them, in which the action
attempted Was either by q minority consti-
H y
| which some persons entitled 10 vote were
| excluded from v0.ing. or the question was
| not put to them for . vote. | have found
< no case and none was cited which is in
u point here or where the facts were like
| those In the present case. III the conclu
sion be reached that under the circum-
| stances such a. are here disclosed, a mem
| Der OF the Council may by refraining from
voting defeat the adoption Of an ordinance
10 -. fh.f
| would follow. Ii was . part of the CON-
I plainant's contention here that notwith-
| standing the fact that the votes of one half
| Of the members OF the Council favored the
| adoption Of this ordinance, yet il cannot be
| treated as tie vote, and adopted by the
Mayors casting vote. IL this be true, it
| will De seen that the power Of the member
| rsfrainins from voting extends further than
that of one who casts q negativs vote and
may, under the circumstances here disclos
I ed, not only defeat the adoption by a ma
| j0rity vote of the Council but may further
| more operate ss having the effect 10 nullify
the power of the Mayor to dstermine the
4 question Of the adoption Of q measure by
bis casting vote / think the more reason
able doctrine is to treat the refractory MEM
Der ~ though be we're absent and while
1 IL II true be was present in the flesh, 10 is
also equally true that be was not present
Il
"a . member of the Council. IT his failure
| TO vote had left the Council without . quo
| rum. il 10 Of course clear that the measure
| could not be adopted legally; but there be-
| ing quorum and a majority OF the quo
rum voting for the adoption Of this orii-
nance. | think il vas legally adopted
/ IL is next urged that the provision con-
tanned ia this ordinance which not onlv
/ falls 20 require that th. trains operated by
the road shall stop st street crossings. but in
terms prohibits the stopping Of such trains
between the depot st Buckeye-st
| sno Shsrmsn-st.. constituting this road
l 20 ell iatsnts and purposes an ordinary
rsilrosd. and distinguishes the road from
| such q road az was held authorized under
l the Street Raj way charter By the Suerems
4 Court Of Aianezots. IN the case Of Newell
/ ~ toe Minneapolis & l.. N. Rsfivsv Com.
psnv. 9TH Northwestern Reporter SO
which has been referred 70 heretofore in toe
course Of this litigation. In the case jast
/ cited il Is true tnst the evidence showed that
L the cars were stopped 20 take on psssenrars
and put or passengers az street cros<inzs
whenever they chose. jast a. is customarv
I on street rail Ways. and il cannot be denied
thas this is fssturs Of the case Of cons;-
1 d~rsbie iuportsnce. II a vel nndersfo0s4
| Of cnurse. that the only ground upon which
/ IL is held that street railways nav &c
operated in the public streets Of city
without condemns Of the right OF rsv
sna that thsy do not create an sddi,iOssl
/ servisnde IS that their operation a in
/ furtherzncs Of TIE purposes FOR which The
street wss Dedicated 70 The public, in that
I Ehsv relieve the lorzl trsvsl unon the
street. and render fhe str-st bg 90 much
more available for travel bv Others. Ths
Minnesota csee i = true. hsii thai rheu
. street rsilrsY having this purpose ard
operated 10 a manner cslcui istsi 70 rro-