City of Newark v. Ohio Electric Railway Co.

(orally).

This is a suit brought to forfeit the franchise of the defendant on certain streets in this city, which was granted to the former owner of the Ohio Electric Railway Company.

The petition alleges that there has been a non-user of Church street, north of the Square, and Second street, and that they are only used for loading and unloading freight.

It is claimed that the defendant has forfeited its right to the franchise on those streets. '

An injunction is asked to enjoin the company from using Church street where it is now used for loading and unloading freight. The company claims on the other hand that the right to use Church street, as it is being used, is covered by Section 4 of its franchise.

Section 4 reads as follows:

“The cars to be run upon said track shall be operated by electrical power, or other modern power, except horses or steam, and shall be used to transport passengers, baggage, mail, express, freight and other articles pertaining to the business of said railway company.”

I think that means transportation, and not that the cars may stand there to load and unload. It means transportation from one point to another over the road, and I do not think gives any right to make this portion of Church street a station for loading and unloading cars.

The co.urt does not think this demurrer is well taken, and it is overruled.