The Oskaloosa herald., 1909-06-10
.OP|N|ON IN THE
'HTTCHlRACkICAsE.
Full Text Of Document Handed Down
by Supreme Court.
WRITTEN BY JUSTICE WEAVER
Powers Of Critics Are Outlined In an
Exhaustive Manner-Many De-
clsions Are Cited In the
Opinion.

1 optIHoH
| Following is the title and the COM
plete text of the opinion on the Os-
kaloosa Hitchraok case as handed
down by the Iowa Supreme Court, cop
les of which have just reached local
| attorneys interested in the case:
In the Supreme Court of the State
of Iowa, Filed June End, 1903.
| w. r. Lacey, ct al, Appellants, VS..
The City of Oskaloosa. ct al, Appel
lees.
Appeal from Mahaska District Court.
Hon. w. G. Clements, Judge.
Il Action in equity to restrain the de-
PENDANT city and its officers from re-
moving certain hitching posts or
racks which have been planted and
maintained along the street lines bor-
dering public para. The petition
was by the district court dismissed
and plaintiffs appeal.
/ Burrell & Dewitt and j. f. and w.
R. Lacey, for Appellants; q. C. Orvis
and j. C. Williams, for Appellees;
Silas M. Weaver. author of opinion.
"The site of the town of Oskaloosa
was plated in the year 1874 by the
commissioners of Mahaska county,
who for that purpose made entry or
the land, which was then part or
the public domain. The town was in
corporated in the year 1853 and is
now a city of about $4,000 inhabitants.
Near the center of the tract there was
plated a block of land designated as
a public square" This square con-
stitutes a rectangle measuring z56h
feet on each side and is bounded by
public streets each 80 feet in width.
The county court house faces the
square from the opposite side OF one
of the adjacent streets and the re-
mainder OF the Immediate neighbor-
hood includes many OF the principal
business places of the city. Within
recent years the streets about the
square have been paved and three OF
the streets are occupied by car tracks.
The square itself mas been improved
and ornamented with trees, walks,
seats and other accessories commonly
provided in public parks. At an early
date the park was inclosed by
fence of primitive pattern, which was
used to a, greater or less degree as a
hitching place for the horses of farm
ers and others visiting or trading at
the neighboring shops or stores.
Hitching posts and racks were also
provided from time to time and very
generally used. In the year 1885 on
| aF
council granted them leave to erect
hitching racks around the public
square without expense to the city.
On one occasion, witnesses say, pro-
badly in 1885, or earlier, the racks
were removed 'serreptitiously,' but
leave was obtained from the city au-
!. thorities to restore them and they"
have since been maintained by pri-
vate subscription and at considerable
expense. The posts were set as near
as practicable on the line between
the street and the square. The side
walks are laid wholly upon the park
side of the line and the street paving
extends beyond the line Of posts and
= forms a gutter between that line ana
: the sidewalk, Teams hitched to the
rack stand wholly within the streets.
The racks have been continually used
; for their intended purpose and upon
many days the hitching room thus al
= forded is entirely filed. During the
winter season "a to 80 loads of ma
nure and other rubbish and waste ac-
cumulate where teams are allowed tc
stand, but during the summer the
streets are cleaned with reasonable
frequency. The streets about the
square have been used to some extent
q as a market place, though they have
: never been set apart for that purpose
by action of the city council. The
! plaintiffs or some OF them have con-
) | tributed to the planting and main
!. tainance of the posts and racks and
!. all of them are property owners and
A business men whose shops and stores
are in the immediate vicinity and
they have found or claim to have
found that said racks and the con-
veniences thereby afforded to the pub
!. lie add value to their property ana
business.
On March IL, 1907 the city council
d ordered the racks removed and re.
i erected at another location several
S blocks distant and therupon this &C.
e ton was instituted to restrain the
It execution Of such order. At the date
y of the order the city of Oskaloosa
If had not taken advantage of the statute
allowing it to elect board of park
commissioners and the control of It's
public parks as well as of its streets
IT. was then vested In the city council
81 On the following day, however, tins
u council provided for the election o
It. such commissioners at the ensuing
| municipal election and the hoard Tim,