Year: 1859

road from point within the citv of Gin
cinnati TO point on the western boundary of
Hamilton county, as in The case of "The Gin
oinnati, Harrison and indianapolis Railroad
Company" no one, probably, would doubt
the power to form company for the purpose,
or the power 10 appropriate, by the proper
proceeding, the use Of the streets Of any in
tervening town or village. This appears
quite clearly TO be within the language of
the law. Is the plain meaning of the words
Of the statute to DO altered or disregarded,
because IL happens that it is a city - and a
large onc-the streets of which it is proposed
TO use. It can not be fairly claimed that such
a use would be 80 unjust or inconvenient to
the city, or its inhabitants, as clearly not to
have been within the intention Of the Legis-
lature. SO far as the test Of experience has
been applied, and opinions have been ex-
pressed by those who have informed them
selves upon the subject, the consequence
would be directly the reverse; and instead of
damage and inconvenience, usefulness and
convenience would result---contributingm much
to the growth and prosperity Of the city,
and tho comfort Of its inhabitants. But if
a possible Inconvenience or even inius-
tice in the view of some were TO ensue,
do not understand that this would per-
NIT departure from the plain language
OF the law. On the contrary the rule of con-
struction is, that the words of statute when
clear should be adhered to, without reference to
any supposed consequences; and that words
are to be modified or varied only when their
import is doubtful or obscure. 1t has boen
said, eve assume the functions of Legislators
when VIC depart from the ordinary meaning of
the precise words used, merely because we gee
or fancy we see an absurdity, or manifest in.
justice from an adherance to the literal mean
ing" alI US


1t may possibly be urged that this Is not au
ordinary railroad, that it is a street. railroad,
and therefore not kind or description of road
within the scope or object Of the act. That il
is to be street-railroad, as distinguished from
any other railroad, which, in its route, passes
through the streets of city or village, is per-
haps only to be inferred from the name given
IN the certlhcate-a name undoubtedly selected
from the importance the raiIroad will acouire
from passing through the streets of Cincinnati.
In legal view, on the face of the proceedings,
there is no difference, and tho name of a thing
ought not to be allowed to condemn it; but the
uses and purposes for which it is intended
must be regarded. Now, the uses and pur-
poses, as understand them, are within the
general scope and objects of the act. and in
deed, are precisely those which tho law con-
templates, and for which it has in terms pro-
vided-they are the transportation of passen-
gers and property. Indeed, it NAV be said
the law contemplates the case of railroads run
ming for short distances in view of the very
matter of transportation Of passengers and
property. 1t provides for the rate to be
charged for such transportation, whom the dis
tanoe exceeds thirty miles, and allows, in case
of transportation for less distance, such
reasonable rate as may be from time to time
fixed by the Company or prescribed by law


The railroad proposed being within the letter
of the statute, and the uses proposed within its
general scope and object, I can not suppose
that any court would undertake to determine
that because the length of its route will be less
and the passage over it more frequent, than
have been usual heretofore in the State, the
law does not authorize its construction. The
point OF legality will not be made to turn upon
mere question Of degree or discretion, as To
which persons are 50 apt TO differ, but will be
decided upon fair Combination of the mean
ing Of the words in which the Legislature has
expressed its intention. I am, therefore, of
opinion that the City Council have authority to
agree with the Company as to the use of the
streets, and that in the event of an inability to
agree, the Company have the right to appro-
propriate, pursuing the course prescribed by
law. ... ..s3


After the organization of "The Cincinnati
street railroad Company" another company
was organized, which also proposes to con-
struct railroad substantially between the
same termini, l am asked whether prior Or
ganization viii give prior right to obtain,
either by agreement or appropriation, the use
of the streets for the purpose of locating and
constructing the road.


1t is manifest that the Legislature, in the
general incorporation act Of May, 1852, acted
upon the principle that no special or peculiar
privileges were to be conferred, but that the
machinery of corporation might be used by
all alike, to accomplish the purposes prescribed;
and first among those purposes was the con-
struction OF railroads. There is no limit in the
law to the number of railroads which may be