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Injunction Denied

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Late yesterday afternoon the case of Elibabeth Raffensberger, et al., praying for an injunction restraining the Ann Arbor street railway company from running a spur of their line up Packard street, carne to an end, and Judge Kinne rendered his opinión in favor of the street railway. The case has excited universal attention. Lawyer Wilson, of Jackson, represented the plaintiffs in the case, and John F. Lawrence and Professor Thompson appeared in the interests of the street railway company. The decisión in the suit shows careful consideration on the part of Judge Kinne. The opinión, as filed with the county clerk is as follows: The circuit court for the county of Washtenaw in Chancery. Elizabeth Raffensberger, et al., vs. The Ann Arbor Street Railway Company. This is an application for an injunction to restrain the defendan from erecting the poles and operating the system of Electie Railway on Packard street in this city against the wishes and without compensation to the abutting owners upon said street. The defendant has obtained from the common council of the city of Ann Arbor, express permission and authority to thus use Packard streett The municipal authorities are charged with important duties; they are the chosen guardians of the public rights, and with them are lodged most important responslbilities. It is presumed that their legislation has been careful, wise and honest, and that when they admitted the defendant into the streets of the city, itwas the delibérate judgment of intelligent and conscientious citizens and that the permission given was surrounded with proper safe-guards. It is not the province of courts to review or revise that which is merely legislative in its character; the legislative and judicial are independent branches of government. If the legislative is clearly illegal or unconstitutional, courts do and should interfere; but injunctions arresting public enterprises should not be granted unless the grounds for the same are reasonably freefrom doubt. I have invited and received a full argument on the motion. The precise question involved has never been passed upon by the Supreme Court of Michigan. It is a new question in all the States, as modern as is the use of electricity itself as a motor for propulsión of machinery. I am satisfied that it is the law of the state that a street railway operated by animal power does not impose upon the street any new or increased servitude, entitling the owner to compensation. The question therefore resolves itself into the problem whether or not there is any real distinction between animal and mechanical power as a motor when applied to street railways. The authorities produced upon this argument being decisions announced within the past few months by the supreme courts of several of the states of the Uuion, clearly establish the doctrine that there is no such distinction. The motor is not the test or criterion, but the use of the street and the mode of such use. Street railways rre permitted and are legitímate because they afford increased facilities for the transit of people along the highway. lts cars are used by those who wish to pass from place to place along the street. It is a matter of public knowledge that electric railways are rapidly supplanting the horse railways and are generally regarded as possessing superior advantages. In the present state of the electric art, poles and wires are essential elements in the system of electric railways. They are indispensable incidents and must therefore be regarded as legitimate accessories to the use of the street. Telegraph and telephone poles are foreign to the natural and ligitimate use of public highways. They do not assist or facilítate passenger traffic and may be deemed increased burdens and servitudes. The theory of the bill in the case is that the electric railway, is per se, an invasión of the rights of the abutting owners. The authorities produced at the argunent establish the contrary doctrine. Any street railway may be so operated that it may become a public nuisance; but until the fact appears, it seems to me that the electric system of street railways occupies the same footing as the railways operated by animal power. Law moves and advances with human progress. It possesses the power by its flexibility to adapt itself to the new conditions. As the the acts expand and science developes, the genius of the law is found promptly supporting the latest discovery of the human mind. Private interest and convenience mustsometimes yield to the public good. It is probable that this question will be finally and definitely determined during the present term of the Suprémê Court. I should have been glad to have held the matter until then ; but with my present view of the law, the motion must be denied and the rule to show cause discharged, with the usual costs. E. D. Kinne, Circuit Judge. February 26, 1891. Af ter rendering his decisión, Judge Kinne adjourned court, not setting any date when it shall convene again.