Telegram-herald., 1888-08-14

L appssrs thss tas ssopslan ~ as 0seln-
sGe< occ1rrsd II Le8 HkD 3ef 2ft<f t1s
iofEeF sscis4oa - tbs ls1r KEanfluE a.
- la1lLIon in Ihis osss ths otrest ksl~sy
CoHpzny - - >upesiE ssHts2t suomttec
- tas As1zl-- PfopcslEion CONTAINING ne
iol-0Eias
'~fhs street EAal.ay Com p&sy make ths
taslowlnx px0poslLioB apoa ths aBasrstss1-
iEx en1 ooa2itl8n "a. de iessi aat10rlty
thsrefoF saes - saaA os sustained - Tie
ooarf SEA- nEst - h@d sEo eblalusd rem
the proper sCkh2rIiiss
k1fst-Ws .iA move cur tracks on East
ct, ostsseo b1eksys-st snd Weslthy-sEs-.
t~o fses further - TIE vest tbao Ihey sre
n0~ g. IS % pus tss innsf rsIl Of s~cn trsek
four iset tFous ths eeotsT u the street
5econd-Ws ~iil tsks out ne oob0lsstons
cutters nos II EasLsL.. etseen Buckeye
81 snd Wealthy ave, sna fepiscs TIE same
.lth vertical carts u OAK either upon the
present caro- lines or upon the Be~ curb
lines established 50 .s ~ give lro tset more
driveway On each side Of the street. II pre-
lsfres nzxiaz TIE street bat fo1r ises less
than Aonfos-st. betseen curtis. The latter
street not having vertical curtis This lat
tsr course will give tsn-fo0t Sidewalk on
esca aide Of tie street aud . ionrteea foot
driveway on each side Of the street Del IA
the euro line and the nearest rail- thereto.
and = driys-sy OF eight feet between he
~ 0 tracks.
Tbifi-From wsaltny.avs south 10 shsr-
mzn-sL We will tste up tne present tracks
and place the present dummy track ia the
center Of the street. and on this track will
operate both our steam motor line and
horse cars. We viii also take up the plan L
which Is now ia our dummy track and re-
place the same with gravel and make that
like the balance OF the street"
Section 20 of the ordinance provides:
The privileges granted 10 said Street Rail-
way Compsny Of Grand Rapids in this or
dinance are aud shall be considered as
granted 10 said Street Railway Company
only on condition that said Street Railway
Company shall fully comply with the prop
osillon OF said company made 10 the COun-
Gil on the 18th of June. and provided that
said ordinance will not have sny effect un-
less the cznditions of this section are com
piled with"
IL Is not shown that the company has
complied with the terms of their PROPOSE
ton To the Council, and rs . compliance
with the terms of such proposition is by
the provisions of Section 20 made q con-
dition precedent 10 the operation OF the
grant Of privileges, il would seem that
this application for q modification OF this
| Injunction comes too early. Ii Is true that
this Section Is to be read in connection with
Section 10 of the ordinance which grants
the ordinance until May l. 1889. to take up
the tracks from Shermsn-st. to Buckeye-st,
and relay the same under the provisions OF
the ordinance. But this does not relieve
the Company from the performance of the
other conditions named in their propo-
sition, viz, the substitution of vertical curbs
OF oak in place of the cobble stone. and the
reconstruction of the street in such manner
| IS TO give q wider drive and as the
consent of the authorities of the township
| OF Grand Rapids would be essential TO
| authorize the reconstruction of the street,
| the objection Is something more than
| technical.
1t is urged that as the Street Railway
| Company prefsced their proposition with a
| statement that it was made upon the un-
| derstanding and condition that due legal
authority therefor shall first be had and
obtained from the proper authorities were
| willing TO grant the privileges, that the
| Company would be excused from perform
| ance on their part l think first that as q
| question of pleadings this position is
| erroneous; that 1t would be incumbent up
| on the Company TO set out an excuse for the
| non performance of the conditions if 10
| fact, their inability to obtain the consent OF
the authorities TO make these changes
would be an excuse. But / do not so con-
tention was by the enactment of Section
20, that unless this change in the grade oi
the street could be effected. unless, in other
words. all the conditions named in the
proposition of the Street Railway Company
could be CO implied with. that il was not in
tended that the privileges granted by the
ordinance shoald b exercised. And while
inability 10 obtain consent of the proper
legal authorities might excuse the Street
Railway Company to the exteat that nc
action for damages for failure to perform on
their part could be maintained, yet it would
only demonstrate that the condition OF
things contemplated by the Common
Council as . condition precedent TO the
exercises of the privileges granted by the
charter has never existed and could not
exist. aud therefore by the ex press terms OF
the charter such privileges do not obtain.
1t follows from these views that the In
junction should not be dissolved upon thi,
showing. r. M. MONTGOMERY.
Circuit Judge.