Telegram-herald., 1890-10-03
WHY THEYAREDOWN
Ju1xs ssversn's Reasons for Deny
Ing the Inlunctioa-
A CLEAR CIT ORiL OPINION
Ehs hishs 90 ths We.rsFa uaisa tn fAst
hs.as = Fss2isslss Osiy. a-a "a 1st
ss HEs4et.ea IA So1tsfatty
WttA Lse.I ksssIstloAs.

Yesterday Judge SeyeEens gave his
opsnl0n II the case OF Ihe City against
the Western Union Telegraph COM
pauy. The opinion vas al oral one,
aad the following Is the substance OF u,
explaining The C0agL's reatons for de-
cldng N favor OF the city. lie sad;
In view OF the Importance OF the
qassllons involved Ia this notionI have
thought i prudent to take the Circuit
Judge into consultation and 20 that end
Transmitted % him full statement Of
the case. OF the claims Of the respee-
tive parties, as they were urged before
me on the argument. together with the
references 10 authorities cited by eoun-
eel. His reply has been received. and
while my doubts arc not altogether re-
moved, they are not SO positive as 10
prevent my deferring 10 ms views even
though he was not present At the hear
ing. The result is, that IN the opinion
OF the Court,
"Frst-Ihe act of Congress Guthoriz-
go 80 N0AAA R.Al4-1 ~ NhAt1tA -
their lines along the post roads OF the
United states = peImiss.ve only, and
the right conferred must be exercised
IN conformity with the local regulation
and control OF the states.
''Second-It - OF no Importance Ia
whom the fee of the streets and high
ways OF the state is vested, whether IN
the municipality in trust or IN the sd-
joining land owner. No prescrptlye
right can lie acquired therein by user.
but any privilege enjoyed by license of
the State or local authorities must be
exercised IN subordinatiou 10 the neces-
sites of the primary purpose OF such
streets and highwaysEthat IS, for pub
lie travel. and must yield when the
pubic necessities IN that regard require
u.
"Third-The power delegated to the
common council of the city to exercise
what IS called the police power of regu.
lstlOn and control of the streets IN
cluded within Il. the authority 10 deter
mine when anv construction permitted
IN the first instance has become an OBJ
struction TO the public IN It's enjoyment
of the primary and original purpose OF
the streets, and to order its removal II
IN their Judgment II IS necessary, is
board enough 10 cover tins case. lt is
not necessary 10 determine III this case
whether the council has the power to
exclude from the streets altogether a
telegraph company which has already
lawfully entered the city and con-
structed its hines therein. Ii is suffi-
cient 10 hold, as we do, that it has the
power to require the company to trans
fer IT'S line from one street to another
in the city.
''Itis upon this third proposition that
my doubt srises. In my opinion there
Is considerable force in the claim that
the power 10 regulate, delegated TO the
Common Council, is TO be exercised in
subOrdinatlon TO the general law
authorizing the telegraph company to
occupy the street for its purposes, and
that the power OF regulation does not
extend TO the oustiug OF the company
from the street altogether.
Fourth-If, "a the court holds, the
power of the Common Council Is large
enough 10 authorize 1t TO determine the
poles and lines an obstruction IN one
street, and 10 order their removal to
another, Il IS not in the province OF the
court 70 review the exercise OF its judg-
ment.
"FOr these reasons the motion for an
injunction Is denied"