Randall et al. v. Jacksonville Street R. R. Co.-Opinion of Court.

have not been responded to by the court in the opinion. rendered.

The petition for rehearing alleges that "the use of a 'T' rail instead of a 'U' rail, as prescribed by the ordinances," (of the city of Jacksonville) "caused the whole litigation, was the basis upon which the appeal was sued out, and has not been noticed by the court."

When the court rendered the opinion in this case it was unable to discover, and it is now unable to discover that the ordinances of the city of Jacksonville prescribe a "U" rail, and prohibit the use of a "T" rail as alleged in the petition. The ordinances attached as exhibits to the bill do not anywhere mention a "U" rail, and the only mention they make of a "T" rail is in section three, where it is ordained that over certain streets named in said section the company shall have the privilege of laying a certain description of "T" rail, to-wit: "T" rail "suitable for railway purposes."

Granting, for the sake of argument, that section three impliedly prohibits large "T" rail "suitable for railway purposes" on those streets not named in it, yet it is no violation of the inhibition to lay on other streets traversed by street railways a small and light "T" rail, not "suitable for railway purposes." A "T" rail of a hundred pounds to the lineal yard may be "suitable for railway purposes," but the grant of the right to use a "T" rail of a hundred pounds to the lineal yard on a railway over certain streets would surely not inhibit the right to use a "T" rail of ten pounds to the lineal yard on a street railway over other streets. The implication cannot be broader than the grant. The grant is that a "T" rail “suitable for railway purposes" may be used on certain streets; this cannot imply that a "T" rail not "suitable for railway purposes," though it

Randall et al. v. Jacksonville Street R. R. Co.-Opinion of Court.

may be suitable for street railway purposes shall not be used on other streets.

Section three provides for the building of railways over certain streets, and the only fair inference or implication is that railways should not be built over other streets but only street railways.

We think that the city government of Jacksonville, while prescribing what sort of rail might be used on railway tracks, did not intend, by implication or otherwise, to prescribe what sort of rail should not be laid on street railways. The difference between a railway and street railway, commonly called a horse railway, is constantly kept in view in the city ordinances, and the difference is so vast that we cannot suppose that the City Council, while prescribing what sort of iron might be used on the former, meant by implication to prescribe what sort of iron should not be used on the latter.

And, besides, the City Council made so many express provisions as to the manner in which street railways should be built that we cannot think they intended to leave anything to implication.

The City Council expressly provide in Sections three, four and five that the tracks of the street railways shall "be laid down in the best and most approved mode of constructing street railways;" that they should "be of even grade with the streets." *** "so that carriages and other vehicles can cross said streets with ordinary ease;" that they should "not be used for purposes of railway connection or the transportation of railway freight, or passenger cars, locomotives or engines;" that "no freight shall be carried over them except the usual baggage of passengers or of persons going to or returning from market;" and that cars over them shall not be run "at greater speed than that allowed to other vehicles."

Randall et al. v. Jacksonville Street R. R. Co.-Opinion of Court.

These express provisions against interference with the ordinary use of the streets are certainly sufficient to prevent any, and the City Council, while making so many express provisions for that purpose, would surely have restricted the company to the "U" rail in express terms, and have prohibited the "T" rail in express terms, if they had intended to restrict the company to the use of the one or prohibit them from the use of the other. Instead of doing so, the City Council, as we have seen, nowhere use the term "U" rail, and nowhere use the term "T" rail, except in Section three as above quoted.

After the best consideration we have been able to give the subject, we think now as we did when we rendered the the opinion in this case that the city ordinances do not prescribe, by implication or otherwise, what pattern of rail the company may use in the construction of the street railway. We think the municipal corporation gave its assent to the construction of a street railway of any pattern, provided only that it should "be laid down in the best and most approved mode of constructing street railways," "and be even grade with the streets," "so that carriages and other vehicles can cross said streets with ordinary ease." The pattern of the rail was left to the discretion of the company, these conditions being complied with.

And it was because the allegations of the bill and answer and affidavits were so contradictory as to raise a reasonable doubt whether these conditions had not been complied with that this court affirmed the ruling of the Circuit Court dissolving the injunction, and sent the case back for final adjudication upon its merits after all the evidence that either party might be able to adduce should be fully before that court.

If it shall appear from the evidence that the conditions of the ordinance cannot be complied with if "T" rail be

Randall et al. v. Jacksonville Street R. R. Co.—Opinion of Court.

used, on account of its unfitness for such a track as is required, then, of course, the decision will be that the conditions have not been complied with; but a conclusion must be reached from the evidence, and not from any supposed prohibition of "T" rail in the ordinance, whether it be fit or unfit for street railway purposes.

The petition for rehearing states that "it was error in this court to affirm that this street railway was constructed over Hogan street under legislative authority and with the consent of the municipal corporation, when the bill and exhibits show, and the answer admits, that a 'U' rail was prescribed and a 'T' rail used."

We repeat that we cannot find in the ordinances any prescription of a “U” rail or prohibition of a “T” rail. And when the court in its opinion said "that this street railway was constructed over Hogan street under legislative authority and with the consent of the municipal corporation,' it is plain from the context and head-note that the court did not mean to say that the railway had been constructed in the mode prescribed by the ordinances. That question was remitted to be decided by the Circuit Court on the evidence that might be before it at the final hearing. This fully appears in the following quotations from the opinion, towit: "The dissolution of the temporary injunction leaves the cause still in court, and if at the final hearing it shall appear that this street railway has been constructed in an unauthorized manner and is a public nuisance, and that plaintiffs have suffered or are likely to suffer special damages beyond and in addition to that which falls alike upon all by reason of its being laid on their soil, then the court will have jurisdiction to remove the track so far as it is laid upon the soil of plaintiffs." And again: “If it shall appear from the evidence at the final hearing that this street railway on Hogan street, in front of the lot of com

Randall et al. v. Jacksonville Street R. R. Co.-Opinion of Court.

plainants, is on the soil of plaintiffs, and has not been laid down in the best and most approved mode of constructing street railways, as directed by the ordinance of the city government, and is a public nuisance, then the injury done to the soil of complainants between their lot and the centre of the street is an injury to the rights of complainants as individuals in addition to the injury done to the general public, and this suit is the proper remedy," &c.

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It is alleged in the petition for rehearing that there is "a suggestion in the opinion rendered that there can be no injury when the railroad does not occupy the whole street, but leaves room enough for a vehicle to pass." We are unable to find in the opinion on file any such suggestion. The language of this opinion is as follows: "Defendants deny that they have taken exclusive possession of that part of the street on which their track is laid, and aver that their track is so laid as to leave ample space on both sides of the road for the passage of persons, animals and vehicles, and presents no obstruction to the free and customary use of said street for all the purposes of ordinary travel."

The statement in the opinion that "defendants deny that they have taken exclusive possession of that part of the street on which their track is laid," and that they aver that their track is so laid that it "presents no obstruction to the free and customary use of the said street for all the purposes of ordinary travel," cannot, we think, be properly construed into a suggestion that there can be no injury when the road does not occupy the whole street, but "leaves room enough for a vehicle to pass."

Rehearing denied.