Louisville Trust Co. v. City of Cincinnati

SAGE, District Judge. Before discussing the question whether the decision of the supreme court of Ohio, referred to in the answer, in the case of City of Cincinnati v. Inclined Plane Ry. Co., 52 Ohio St. 609, 44 N. E. 327, is binding on this court, the force and effect of the statute of Ohio passed March 30, 1877, will, independently of that decision, be considered. The act is as follows: ' “Section 1. Be it enacted by the general assembly of. the state of Obio, that any inclined plane railway or railroad company heretofore or that may hereafter [be] organized under the act of May 1, A. D. 1852,' entitled, ‘An act to provide for the creation and regulation of incorporated companies in the state of Ohio,’ shall have power'to hold, lease or purchase, and maintain and operate such portion of any street railroad leading to or connected with the inclined plane as may be necessary for the convenient dispatch of its business, upon the same terms and conditions on which it holds, maintains and operates its inclined plane: provided, that no other motive power than animals shall be used on the public highways occupied by such street railway company without the consent of the board of public worts, in any city having such a board, and the common council or the public authority or company having charge or owning any other highway in which such street railroad may be laid; and provided, that no inclined plane railway or railroad company shall construct any tract or tracts in any street or highway without first obtaining the written consent of a majority of the property holders on the line of such proposed tract or tracts, represented by the feet front of lots abutting on the street or highway along which such tract or tracts are proposed to be constructed. “Sec. 2. No such purchase or lease shall be made without the consent of the holders of the stoct in the company purchasing or leasing, and in the company leasing or selling such street railroad, or of the owners thereof. “Sec. 3. This act shall take effect on its passage.” The contention for the complainant is that inasmuch as the inclined plane company was organized under the act of May 1, 1852, it had perpetual existence, with the franchise to build, maintain, and operate its inclined plane and railway, and that these franchises were likewise perpetual. The greater part of the inclined plane was built on property the fee of which was vested in the company. It, however, occupied a part of Locust street, and crossed above grade, and at such a height as not to obstruct travel, Miami, Baltimore, and Dorsey streets, under permission granted by resolution of the board of aldermen and the common council of the city of Cincinnati in 1871, which limited the grant to 20 years from the date of its passage. This limitation, it is contended, did not constitute one of the terms and conditions upon which the company held, maintained, and operated its inclined plane, any more than if the company had leased from some private individual, for a limited term, part of the property upon which it built its inclined plane. The argument is that in either case the corporate existence would not terminate when the time of the grant or of the lease expired, but the corporation would still have the power either to have the lease renewed for another definite term, or perpetually, or, failing in that, to condemn the right in perpetuity under the express power granted in section 12 of the act of May 1,1852. It is, moreover, urged that, as the company acquired the land on both sides where it crossed the streets and built its inclined plane at such a height as not to impede public travel along the highway, — 725 — there would be really nothing to condemn, for the reason that the owner of abutting property retains all title to 1he highway, excepting such as is necessary for the public to secure a passage over it. It may be conceded, for the sake of the argument, that the existence of the company under the act of May 1, 1852, is perpetual, or, at least, without time limit, and that its franchises are of like duration. The weak point in complainant’s contention is by reason of the fact that the municipality of Cincinnati is also a corporation, endowed with the control and management of the streets of the city, and that the twelfth section of the general corporation act of May 1, 1852, made it competent for the city as a municipality and any railroad company to agree upon the manner and upon the terms and conditions upon which the streets, or any part thereof, should he used or occupied. The section also contains a provision that if the parties shall be unable to agree thereon, and it shall be necessary, In the judgment of the directors of such a railroad company, to use or occupy such street, the company may appropriate so much of the same as may be necessary for the purposes of such road, in the same manner and upon the same terms as is provided for the appropriation of the property of individuals by the tenth section of said act. The provisions of this section define and limit the franchise which is granted to the city as a corporation, and that which is granted to the railroad company as a corporation. The inclined plane railway company recognized t.he right of the city, under section 12, to proscribe the terms and conditions upon which it should occupy 'Locust street, and cross the other streets named. The fee of those streets was vested in the public. The company accepted the grant, from the city. The grant has terminated, and whatever may be said as to the right of the company to appropriate, by proper proceedings, so much of the streets as may be necessary for the purposes of its inclined plane, the fact is that it has not done so, and is a trespasser. Without a grant from the city, or an appropriation in accordance with the provisions of section 12, the company has no right: to use or to occupy any part of any street in the city; and in that predicament it is now, and has been ever since long before the Ml! in this cause was filed, unless the city is estopped, which will be considered later in the opinion. The ownership by the inclined plane company of the land on both sides of the streets where they lire crossed by the inclined plane track, while it might go to the question of the amount of compensation to be awarded, would not disípeme with the necessity to institute condemnation proceedings. IleíVmug now to the statute of March 30, 3877, we see that the power of the inclined plane company to hold, lease, or purchase, and maintain and operate, such portion of any'street railroad leading to or connected with the inclined plane as may be necessary for the eon lenient dispatch of its business, is to be “upon the same terms and conditions on which if holds, maintains, and operates its inclined plane." If, therefore, the inclined plane company lias no longer any righr to hold, maintain, and operate its inclined plane, it has no right to maintain or operate the street railroads which it has acquired,- and this is true whether the franchises of the inclined plane — 726 — company are perpetual, or are limited in time. In other words, the power or franchise to acquire the right is not equivalent to possessing the right. But the defendant denies that the statute gave to the inclined plane company the right to maintain and operate Route 8 perpetually. Passing, for the present, the question whether the decision of the supreme court of Ohio upon this point is binding upon this court, it is clear that the act of March 30,1877, does not, in express terms, confer any such right on the inclined plane railway company. If such was the intention of the legislature, it would have been easy to express it. Unless expressed, or resulting by necessary implication, it does not exist. The rules of construction do not favor implied grants. The supreme court of the United States, in Minturn v. Larue, 23 How. 436, said: “It is a well-settled rule of construction of grants by tbe legislature to corporations, whether public or .private, that only such powers and rights can be exercised under them as are clearly comprehended within the words of the act, or derived from them by necessary implication, regard being had to the objects of the grant. Any ambiguity or doubt arising out of the terms used by the legislature must be resolved in favor of the public,” In Central Transp. Co. v. Pullman’s Palace-Car Co., 139 U. S., at page 49, 11 Sup. Ct. 478, the opinion of the supreme court contains the following: “By a familar rule, every public grant of property, or of privileges or franchises, if ambiguous, is to be construed against the grantee, and in favor of the public, because an intention on the part of the government to grant the private persons, or to a particular corporation, property, or rights in which the whole public is interested, cannot be presumed, unless unequivocally expressed or necessarily to be implied in the terms of the grant, and because the grant is supposed to be made at the solicitation of the grantee, and to be drawn up by-him or by his agents, and therefore the words used are to be treated as those of the grantee; and this rule of construction is a wholesome safeguard of the interests of the-public against any attempt of the grantee, by tbe insertion of ambiguous language, to take what could not be obtained in clear and express terms.” See, also, Slidell v. Grandjean, 111 U. S. 437, 438, 4 Sup. Ct. 475; Oregon Ry. & Nav. Co. v. Oregonian Ry. Co., 130 U. S. 26, 27, 9 Sup. Ct. 409; 4 Thomp. Corp. p. 4357, § 5659, and cases there cited; Stein v. Water-Supply Co., 141 U. S., at page 80, 11 Sup. Ct. 892, where the supreme court quote with approval from The Binghampton Bridge, 3 Wall. 51, 75, that, “in grants by the public, nothing passes by implication”; and “if, on a fair reading of the instrument, reasonable doubts arise as to the proper interpretation to be given to it, those doubts are to be solved in favor of the state; and where it is susceptible of two meanings, the one restricting, and the other extending, the powers of the corporation, that construction is to be adopted which works the least harm to the state.” The supreme court refer to this rule as one “in respect to which there is no difference of opinion in the courts of this country,” and, applying it, held that a grant, under legislative authority, of an exclusive privilege, for a term of years, of supplying a municipal corporation and its people with water drawn by means of a system of waterworks from — 727 — a particular stream or river, does not prevent the state from granting to other persons the privilege of supplying, during the same period; the same corporation and people with water drawn in like manner from a different stream or river. The court of anpeals of the state of New York, in People v. Newton, 112 N. Y. 399, 19 N. E. 831, said: “The terms of the grant conferring the right which is asserted are to be strictly construed, and the privilege it confers cannot be extended by inference. If there is any ambiguity, it must operate against the company, the general rule being that the grant shall be construed most strongly against the party claiming tinder it, and every reasonable doubt resolved adversely to it. Nothing is to be taken as conceded; nothing is to be included in the grant but what is given in unmistakable terms; and, as was said in Langdon v. .Mayor, rt> X. Y. 145: ‘Whatever is non unequivocally granted is deemed to be withhold;’ nothing passing by implication. The affirmative must be shown. The court is not to search tor any hidden meaning.” The supreme court of Indiana, in Western Paving & Supply Co. v. Citizens’ St. R. Co., 128 Ind. 530, 26 N. E. 188, and 28 N. E. 88, declared that it was — ‘‘Mettled that such charter is to bo strictly construed against the railway company, and that it has no doubtful rights under such charter, for, where there are doubts, they are construed against the grantee, and in favor of the city.” In Pennsylvania R. Co. v. Canal Com'rs. 21 Pa. St. 22, Chief Justice Black said: "When a state moans to clothe a corporate body with a portion of her own sovereignty, and to disarm herself to that extent of the powers which belong to her, it is so easy to say so that we will never believe it to be meant whim it >s not said. * * * In the construction of a charter, to be in doubt is to be resolved; and every resolution which springs from doubt is against the corporation.” The supreme court, in Fertilizing Co. v. Hyde Park, 97 U. S. 666, was no less emphatic: “livery reasonable doubt is to be resolved adversely fro the corporation!. Nothing is to be taken as conceded but what is given in unmistakable terms, or by an implication equallj clear. The affirmative must be shown. Silence is negation, and doubt is fatal to the claim. This doctrine is vital to the. public welfare. It is axiomatic in the jurisprudence of this court.” The supreme court of Louisiana, in New Orleans & C. R. Co. v. City of New Orleans, 34 La. Ann., at page 447, uses the following language: “Charters and other acts conferring powers and privileges upon corporations, though ostensibly mere ordinary achs of legislation, are usually prepared by lite parties interested, and by them submitted for legislative approval. This is one among many reasons why they are always so .strictly construed. Pierce, R. R. p. 491. “They are assumed to have been prepared with care and forethought, and to embody clearly ail the rights and privileges which it was supposed (lie legislature would have been willing to grant. To permit such privileges to be cloaked and covered up under ambiguous and equivocal expressions, not distinctly presenting the subject of their extent and propriety to the legislative mind, would be to expose the legislature to deception, and to enable" par-lies, by artful duplicity of language, to claim and enjoy privileges which, it may be, the lawmaking power (¡id not intend to grant, and would'have refused had they been directly and clearly asked. “Against the possibility of the success of such devices, the judiciary sets its face like flint.” — 728 — Keeping these rules of construction in mind, let us now consider what the effects of the construction claimed hy complainant would be. They are fully set forth by Judge Smith, of the superior court of Cincinnati, in the City of Cincinnati v. Cincinnati Inclined Plane Ry. Co., 30 Wkly. Law Bul. 324, 325. Among them are the following, as stated by defendant’s counsel in their brief: “(1) To remove all limitations on the life of any grant for a street railway which an inclined plane railway company might acquire, and to give such company a perpetual right in the streets occupied by such street railways. ■ “(2) To deprive the city of its stipulated rights to car licenses and percentages on earnings, and of its right to charge the company with part of the expense of repairing the streets, where such rights had been reserved in the ordinances originally creating the grants. “(3) To give to a class of inclined plane railway companies (those incorporated under the act of 1852) rights which could not be granted to any other companies, whether inclined plane or street railway companies, or to individuals under the laws, since they would be free from the restrictions of the various statutes, beginning with the act of May 14, 1878, which forbade cities to make or renew street railway grants for a longer period than' twenty-five years. “(4) To oblige cities to permit inclined plane railway companies to use the streets for street railways on the companies’ own terms, under penalty, in case of the refusal of the city, of having the right of way over any and all streets condemned for the use of the company in perpetuity. “(5) To enable the inclined plane railway companies in Cincinnati organized under the act of May 1, 1852, to acquire any existing street railroad which leads to or connects with its inclined plane, and thus enable these companies to operate practically all the street railroads in the city in perpetuity, and free from all restrictions except such as the city might, by common-law right, impose independently of any power reserved in the original grants. “(6) To permit the Cincinnati Inclined Plane Kailway Company to charge such rates of fare upon portions of street railroads acquired by it as the company might see fit to charge, there being no limitation as to the rate or rare m the grant by the city to tire inclined plane railway company of permission to cross and occupy certain streets with its inclined plane. While it may be admitted that the state could, by subsequent legislation, control the rate of fare to be charged on street railroads by inclined plane companies, yet the city would have no such right, unless it had been reserved by contract. “(7) As railway companies incorporated under the act of Majr 1. isr>2, are authorized to operate general traflie railroads, which have the right to carry freight as well as passengers, the construction claimed by complainant for the act of March 30, 1877, would authorize inclined railway companies to transport freight over the street railroads acquired by them, and to use for that purpose such large and heavy cars as would increase the wear and tear of the streets, and necessitate more frequent repair of the streets, at the expense of the city.” Prom these considerations, and upon the application of the rules of construction hereinbefore set forth, it is clear that the Cincinnati Inclined Plane Bailway Company did not, by the transfer of Boute 8, acquire the right to maintain and operate that route perpetually. This court agrees with the superior court in its opinion, which was affirmed by the supreme court of Ohio, that the true construction of the provision of the' act of March 30, 1877, giving the company right to hold, maintain, and1 operate street railways on the same terms and conditions upon which it held, maintained, and operated its inclined plane, is to regard the provision as having reference only to the terms and conditions spoken of in the twelfth section of the act of 1852, and that the act merely granted to inclined plane railway — 729 — companies power to hold, lease, or purchase, and maintain and operate, certain portions oí street railroads, but made no grant to the company of any street-railway franchise, nor did it give, or purport to give, to the company permission to use any streets for street railways. The act cannot properly he so construed as to compel the city to make a grant, or to permit the assignment of a grant, to an inclined plane railway company upon any other terms and conditions than those which the city has the right to exact from any grantee of a street-railway route. The argument of counsel for the complainant that inasmuch as section 2 of the act of March. 30, 1877, provides that no purchase or lease under section 1 shall be ma.de without the consent of the holders of the stock in the company purchasing or leasing, and in the company leasing or selling, such street railroad, or of the owners thereof, no consent of the city is required, and that, therefore, all rights which the city had against the original owner of the street railroad leased or purchased by an inclined plane railway company are destroyed, is altogether untenable. That section may dispense with the consent of the city to an assignment of an existing grant, by deed of conveyance or by lease, but it does not destroy any of the conditions upon which the grant was made, or release' its owners or assignees from any of the burdens imposed by the contract between the city and the original grantee. The conclusion of the court is that, upon a lease to or purchase by the inclined plane railway company, that company would take the street railroad leased or purchased subject to all the terms and conditions imposed by the city, and under whieh it had theretofore been maintained and operated. These questions, however, are foreclosed in tills court by the opinion o" the supreme court of Ohio in the cage of City of Cincinnati v. Inclined Plane Ry. Co. It is true that the supreme court did not üle an opinion in the case, but it did what was equivalent; it afiirmed the judgment, for the reasons stated in the opinion below. 52 Ohio St. 609, 44 N. E. 327. That affirmation was an adoption of the opinion of the superior court in general term, in which the matters were fully and ably discussed, and the conclusion reached that the inclined plane railway had no longer any right to maintain and operate the lines of street railway involved in the case. The company wag, however, allowed six months in which to apply to the city authorities for a new grant to maintain and operate such fines. The judgment of the court included Route 8, and the tracks on Main street between Liberty and Mulberry, under the ordinance of 1871, and on Locust and Main streets, and one of the tracks on Auburn street, under the ordinance of 1875. The decision is based upon the construction of certain statutes of Ohio conferring certain powers upon municipal corporations, and imposing limitations upon their powers, and the construction put by the state court upon such statutes is binding on the federal courts in Ohio. In City of Detroit v. Osborne, 135 U. S. 492, 10 Sup. Ct 1012, it was held that, the local law of a state conferring the right to recover from a municipal corporation for injuries caused by defects in its highways and streets is binding upon courts of the United States — 730 — within the state. The court quoted with approval the following language from Claiborne Co. v. Brooks, 111 U. S. 410, 4 Sup. Ct. 489: “It is,' undoubtedly, a question of local policy with each state what shall be the extent and character of the powers which its various political and municipal organizations shall possess; and the settled decisions of its highest courts on this subject will be regarded as authoritative by the courts of the United States, for it is a question that relates to the internal constitution of the body politic of the state.” To the same effect, see Norton v. Shelby Co., 1.18 U. S. 440, 6 Sup. Ct. 1121; Meriwether v. Muhlenburg Co. Ct., 120 U. S. 357, 7 Sup. Ct. 563; Rich v. Mentz Tp., 134 U. S. 632,10 Sup. Ct. 610. These cases are clearly distinguishable from the cases cited by counsel for the complainant. Butz v. City of Muscatine, 8 Wall. 575, was a case in which it was held that, where a question involved in the construction of a state statute practically affects those remedies of creditors which are protected by the constitution, a federal court will exercise its own judgment on, the meaning of the statute, irrespectively of the decisions of the state courts. In that case the state statute limited the authority of the counsel t‘o levy a tax upon the property of the state, and the supreme court held that the statute did not apply to a case where a judgment had been recovered against the city. Chicago v. Sheldon, 9 Wall. 55, held that a contract having been entered into between parties, valid at the time, by the laws of the state, no decision of the courts of the state subsequently made can impair its obligation. Township of Pine Grove v. Talcott, 19 Wall. 673, decided that questions relating to bonds issued in a negotiable form under an act of the legislature of the state involved questions relating to commercial securities; and whether, under the constitution of the state, such securities are valid or void, belongs to the domain of general jurisprudence, and the decisions of the state court are not binding upon the federal courts. In Block v. Commissioners, 99 U. S. 699, after negotiable bonds had been issued and negotiated, and after the rights of the holders thereof had become fixed, an opinion was delivered by the supreme court of the state as to their validity; and the supreme court of the United States held that it was at liberty to follow its own convictions of the law, and was not bound by the decisions of the state court. In Burgess v. Seligman, 107 U. S. 21, 2 Sup. Ct. 10, the supreme court, recognizing the controlling effect of decisions of the state courts which become rules of property and action in the state, and having all the effect of law, especially with regard to the law of real estate, the construction of state constitutions and statutes, asserted the right and duty of. federal courts to exercise their own judgment whether the law has not been thus settled, and with reference to the doctrine of commercial law and general jurisprudence. The doctrine of estoppel is invoked by counsel for the complainant upon the grounds: (1) That, immediately after the passage of the act of 1877, the inclined plane company acquired Route 8 by lease for 99 years, renewable forever, with privilege of purchase. (2) That from the time of this acquisition no percentage of gross — 731 — earnings or car licenses which were required to .he paid under the ordinance establishing Koute 8 was paid to nor demanded by the city, and, on the contrary, the property was taxed under the steam railroad law. (3) On January 1, 1879, the company executed a mortgage to Peachey and Goodman, trustees, upon all and singular its railways, franchises, and property, including Koute 8; and the lessors joint'd in the mortgage, so that it might be superior to their claim for rent; and there were issued, under it, bonds to the amount of §125,00®, which were used for the purpose of paying the debts of the company, and making improvements on the property. On ¡September 24, 1885, the substitution of electricity, cable, or compressed air as a motive power upon all the roads then held by the inclined plane company was consented to by the board of public works of the city. (4) That on August 12, 1887, by direction of the board of aldermen and councilmen of the city, its clerk submitted to the board a report upon the street railroads of the city, which informed the board of the routes operated by the inclined plane railway company. That report included a communication from Hon. E. A. Ferguson, representing the owners of the lines, which set forth the acquisition and the action of the board of public works consenting to the substitution of electricity, cable, or compressed air as a motive power, and gave a full history of the franchises at that time held, maintained, and operated by the inclined plane company. In October, 1888, the company, having applied to the board of public affairs (which in the the meantime had taken the place of the board of public works) for permission to erect along the entire length of the road the poles, wires, and other appliances necessary to operate and maintain tin' whole line as an electric road, and to change and relay tin; tracks, and improve (he curves and switches, from Liberty street north to the Zoological Garden, so as to better adapt them to the running of cars by electricity, and having' obtained the desired permission upon certain conditions, relating to the change and relaying of the tracks, and improving the curves and switches, and fixing the conditions under which the permission should be exercised, proceeded to carry out the terms of this permission, and on January 1, 1889, executed a mortgage to the complainant to secure bonds to the amount of §500,000, of which §125,000 were to be reserved against the bonds outstanding under the trust mortgage to Peachey and Goodman and the remaining bonds, §375,000, were issued, as was also §125,000 of preferred stock; and the money from the sale of these bonds and stock was used to equip the line with electricity, relay the tracks, reconstruct the inclined plain', and build a power house. The court adopts the view taken by counsel for the city in answer to the claim that, the city is estopped, placing their contention upon the following grounds: The city did not require nor compel the railway company to make any changes. Upon the company’s request, not made to the city, but to the administrative board only, that board authorized the change from horse power to electric power. The inclined plane was reconstructed without any permission. The acts of the board of public works and the board of public affairs were — 732 — simply permissive. They did not purport to confer any rights upon the railway company, nor anything more than the privilege to make the changes for which the company sought their consent. The boards had the right to suppose that the railway company knew what its title was, and that it assumed all the risks involved in the change of its motive power. A municipal corporation is not estopped by reason of the act of a board not authorized to bind the city by its independent action. 2 Dill. Mun. Corp. (4th Ed.) § 660. The common council of a city can only contract by ordinance, resolution, or order, and an illegal and void contract cannot lay the foundation for an estoppel. In Richardson v. Grant Co., 27 Fed. 495, it was held that municipal or public corporations are not liable on a quantum meruit for the valué of materials furnished under illegal or forbidden contracts when the municipality could not choose whether or not it would retain or reject the benefit of such work or materials. See, also, McCracken v. City of San Francisco, 16 Cal. 591, cited by the supreme court of the United States in Merrill v. Monticello, 138 U. S. 687, 11 Sup. Ct. 441. The resolutions consenting to the change of motive power did not create or renew a grant, nor did they constitute either an expressed or implied recognition of any valid existing grant. State v. Cincinnati Gaslight & Coke Co., 18 Ohio St. 262. The cases in which an estoppel in pais may be raised against a municipal corporation are where the defect was formal, and where the other party had relied upon the contract, and the municipal corporation had received money or property under it. See City of Detroit v. Detroit City Ry. Co., 60 Fed. 166, and cases there cited. The reversal of the judgment in that case was upon another ground, and did not affect the proposition here stated. ■ In the case at bar the resolutions relied upon to raise an estoppel do not show any intention to make a contract granting or renewing a right. They were not competent to accomplish that request, because the boards passing them could not lawfully make or renew a grant, nor did the city receive any money or property. Cincinnati & S. Ry. Co. v. Incorporated Village of Carthage, 36 Ohio St. 631. The complainant and the bondholders were bound to know the law of the state, to take notice of the limitations on the power of the board of public works and the board of public affairs, and of the statutory restrictions as to the mode and manner of making contracts by the city. They were bound, also, to know that in State v. Bell, 34 Ohio St. 194, it was decided, two years before the first mortgage was made, that the board of public works had no power to make a street-railway grant. It is necessary, upon claiming rights by estoppel, to be able to define the rights claimed. Counsel for the complainant go no further than to claim that the complainant is entitled to have the railway operated until the bonds are paid. But, as is suggested by counsel for the defendant, suppose the company failed to make money enough to pay the bonds; what would happen? And, upon foreclosure proceedings, the road should sell for enough to pay the bonds; what would the purchaser of the road — 733 — get? How long would the estoppel operate in favor of tbe purchaser? The failure to oust the company from the operation of Route 8 after the expiration of the grant therefor, in 1881, gave to the company no new rights. They continued to use the streets onfy by sufferance. The failure to exact the payment o£ car license for the cars run upon Route 8 could not work an estoppel against the city, because the neglect of the city to enforce its rights would have no effect, excepting so far as the statute of limitations might come into play. It lias been held that a consent to a change of motive power creates no grant or license to use the streets. It is a mere act of regulation. In re Third Ave. R. Co., 121 N. Y. 536, 24 N. E. 951. As to the report made by the city clerk to the board of aldermen, it was read, ordered to be printed, and no other action was taken upon it. It was never read in the hoard of councilmen, and it did not, nor did the letter of Mr. Ferguson, which was incorporated in the report, suggest any claim by the railway company the right to operate its street railways in perpetuity. Mt. Adams & E. P. Ry. Co. v. City of Cincinnati, 23 Wkly. Law Bul. 68; Zottman v. San Francisco, 20 Cal. 97. The taxation of the property of the inclined plane railway company under the steam railroad law was by the county auditor. The city had nothing to do with it, no authority over it, and it was not shown that the inclined plane railway company was thereby compelled to pay any greater amount of taxation than if it had been taxed as a street-railway company. The application of the company to relay its tracks in certain streets that were repaved was altogether independent of the question whether it occupied the street under a contract or under a license. The authorities in support of the proposition that the company must relay its tracks when the street is imprpved, and that the obligation exists independently of any express statutory requirement or specific agreement with the municipal authorities, are cited in Booth on Street Railways, at section 254, where the law is so stated. The supreme court of Ohio, in Railroad Co. v. Defiance, 52 Ohio St. 262, 40 N. E. 89, held that the— “Powers conferred on municipal corporations with respect to the opening, improving, and repairing of their streets and public ways are held in trust for public purposes, and are continuing in their nature, to be exercised from day to day as the public interests may require; and they cannot be granted away, or relinquished, or their exercise suspended or abridged, except when and to the extent that legislative authority is expressly given to do so. Such authority is not given by section 3283 of the Revised Statutes.” Section 3283 is section 12 of the corporation act of May 1, 1852, revised. The two sections are identical in substance. The difference is only in the manner' of expression. The city was prohibited by statute from making any grant to a street railway for a period longer than 25 years. Can it be possible that, by conduct or silence or acquiescence, it could extend such grant indefinitely or perpetually, or, in other words, accomplish indirectly what it war, beyond its power to do directly? The supreme court recognized and applied — 734 — in Railroad Co. v. Defiance the rule with reference to the construction of grants which has been hereinbefore stated, to wit, that they "will be construed strictly against the grantee, and liberally in favor of the public, and never extended beyond their express terms, when not indispensable to give effect to the grant.” The only remaining question to be considered is whether section 720 of the Revised Statutes applies to this case. That section provides that: “A writ of injunction siiall not be granted by any court of the United States to stay proceedings in any court of a state, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.” This section, it' has been held, must be construed in connection with section 71.6, which provides that: “The supreme court and the circuit and district courts shall have power to issue writs of scire facias, and to issue all writs not specifically provided for by statute which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.” These provisions, however, do not affect this case, nor do the provisions of sections 640 and 646 of the Revised Statutes, by which also the interpretation of section 720 is restricted. Those sections relate to cases removed from the state courts to the, 'federal courts, and authorize federal courts, by injunction, to prevent further proceedings therein in the state courts. Section 720, it has been held, applies not merely to staying proceedings in any court of a state, but is an inhibition against staying a party in the conduct of the proceedings in a state court. Fisk v. Railroad Co., 6 Blatchf. 362, Fed. Cas. No. 4,827. It applies, also, to prevent an injunction staying a party at any stage of the proceedings in a state court, as where the proposition was to enjoin a sale of land under an order of the state court. Sargent v. Helton, 115 U. S. 348, 6 Sup. Ct. 78; Chapman v. Brewer, 114 U. S. 158, 5 Sup. Ct. 799. Property in the hands of a sheriff under process issued by a state court will not be interfered with by injunction from a federal court, nor can a party be restrained from taking possession of property which the judgment of a state court requires to be delivered to him. Watson v. Jones, 13 Wall. 679. Section 720 also prohibits the issue of an injunction to restrain the sale of property under an execution issued out of a state court, although application is made by a third person whose property is taken. Watson v. Bondurant, 2 Woods, 175, Fed. Cas. No. 17,278; Perry v. Sharpe, 8 Fed. 23. It has been held that the holder of a chattel mortgage cannot enjoin the sheriff from selling the property under execution of a judgment against the mortgagor. Ruggles v. Simonton, 3 Biss. 325, Fed. Cas. No. 12,120. It follows that this court, even if its opinion upon the merits of this controversy were in favor of the complainant, could not by injunction prevent the city of Cincinnati from reaping the fruits of its litigation in the state court with the inclined plane company. The validity of the act of March 30, 1877, under the constitution of the state of Ohio, is denied by counsel for defendant. It is not necessary to the decision of this cause to enter upon the discussion — 735 — of this question, which belongs, primarily, to the domain of state jurisprudence, and which a federal court will not take up excepting under an imperative necessity. The equities of this cause* are with the defendant. The bill will be dismissed, at the complainant's costs.