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sements of the bill sufficiently charge, | executor by the Probate Court, or that the
proofs establish, neglect of duty and trust fund ever came to his hands. As the
ent of the trust estate. The charge facts thus denied are conclusively established
which is distinctly admitted by the by the evidence, the denial is an aggrava-
that the Probate Court found in the tion of the misconduct of the appellant. A
f the appellant, executor of John Caven- trustee, into whose hands trust assets are shown
df longing to said trust estate, the to have come, who not only fails to discharge
$17,149 49, and ordered him to pay over any duty of the trust, but even denies that he
hmself as trustee. The averment of has ever received the property, cannot success-
cient to charge, and the admis- fully resist an application made to a court of
answer sufficient to prove, the re-equity for his removal.
the defendant, as trustee, of the sum
persioned. They are conclusive evi-
the fact. For when one person is to
Dy and receive the same money, and
nimas but to enter receipts and pay-
ther proper accounts accordingly, the
er that as done which ought to
Th, where a sole executor sustains
: Laracter of executor and guardian
adjudge the ward's proportion of
This hands to be in his hands in
df guardian, after the time limited
the settlement of the estate whether
arxant has been passed by the Or-

or not. Watkins v. State, 2 Gill. & J., viere the same person is executor of an tarian of a distributee, and there is

show in which capacity he holds
payment of debts and settlement of
sail be presumed to hold them
State v. Hearst, 12 Mo., 365. See
sv. Johnson, 2 Hill (S. C. Ch.),
Karr, 6 Dana, 3.

nd that the trust fund came to the the trustee does not stop with the orree of the Probate Court finding the as hands as executor, and directing to himself as trustee, for it appears tate and filed in the Probate Court his stee for the fund, and upon the f that receipt procured his discharge r. The record of the Probate Court, e, shows these facts. We have, the simission of record of the appelwith the court of probate acted, at and upon the strength of which it eving him from liability as dit is binding on him, and he canany controversy with the appelThis admission that the fund came to

The counsel for appellant say that they re-
gret that the pleadings and evidence do not
permit a full presentation of the case upon its
merits. We cannot act on this vague intima-
tion. There may be facts not disclosed which,
if shown by the record, would entirely change
the aspect of the case. But we must try the
case as the record reveals it. Upon the cause,
as presented, with no explanation vouchsafed
by the appellant, it is difficult to conceive of a
clearer case for the removal of a trustee and the
appointment of another in his stead.
Decree affirmed.
True copy. Test:

James H. McKenney, Clerk, Sup. Court, U.S.

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1. A general exception to a charge, not directing
attention to particular portions objected to, raises
no question for review by this court.
2. The mere failure of a steam ferry company to
provide a seat for a passenger on its boat is not of
itself proof of negligence.

3. Under the circumstances disclosed in this case,
that proper care required the defendant to furnish
the jury would not have been justified in finding
seats sufficient to accommodate all passengers that
its boat could safely carry, or such number of pas-
sengers as ordinarily traveled upon it.
Argued Apr. 9, 1885. Decided Apr. 20, 1885.
[No. 242.]

IN or the Cartern District of Penn

N ERROR to the Circuit Court of the Unit

to inquire whether the proof sus-sylvania.
arge of neglect of duty and misman-
the trust funds.

An possession of the trust mo-
we the duty of the appellant to
directed by the will, if it
to do so. The proof shows
possible. The appellant admits,
at be has made no investments of
and placed no funds in securities
or in bank, and set aside no annui-

ft of the cestui que trust or the
Ha own admissions show neglect
management of the trust estate.
to invest constitutes of itself a
tt and is ground for removal.
rei, 7 B. Mon., 174; Lathrop
N. J. Eq., 192.
deframe set up in the answer of the
al that he ever gave a receipt
or that he had been discharged as

The history and facts of the case appear in
the opinion of the court.

Messrs. Jerome Carty, B. F. Clapp and
Mayer Sulzberger, for plaintiff in error.

Messrs. Richard D. Dale and Samuel
Dickson, for defendant in error.

of the court:
Mr. Justice Harlan delivered the opinion

low, took passage at Camden, New Jersey, for
The plaintiff in error, who was plaintiff be-
Philadelphia, on a ferry-boat belonging to the
defendant, a New Jersey Corporation engaged
in the business of transporting passengers, ani-
mals and vehicles across the Deleware between
those cities. On that trip the boat was un-

ty-what sufficient insufficiency of general excep
NOTE.-Appeal or error-exceptions particular
tions. See Moore v. Bank, 38 U.S. (13 Pet.), 302, note.

[474]

[474]

[475]

[476]

of the defendant's servants-would have been required to find for the plaintiff, if the defendant failed to provide her with a seat, or if she was unable, by reason of the crowded condition of the boat, to obtain one. In other words, that the mere failure of the Company to provide a seat for a passenger on its boat was, in law and of itself, proof of negligence. It ap

usually crowded with passengers. The river
at the time was very full of ice, and it was dif-
ficult for the boat to get across and enter the
ferry slip on the Philadelphia side. The wharf
on that side was reached only after repeated
efforts. In the attempt to land, the boat was
driven against the bridge with such force as to
throw the plaintiff and a number of other per-
sons, all of whom were standing during the pas-peared in evidence that the boat was provided
sage across the river, with great violence upon
the floor. The fall caused serious and, per-
haps, permanent injury to the plaintiff. In this
action she claims damages from the defendant
upon the ground that her injuries resulted from
the careless and negligent management of the
ferry-boat by its agents and servants. The plain-
tiff made a case entitling her to go to the jury
upon the issue as to the defendant's negligence.
But there was, also, proof tending to show that
the striking of the boat against the wharf on
the Philadelphia side occurred under peculiar
circumstances, and could not, perhaps, have
Deen avoided by any diligence upon the part of
the agents of the defendant.

When the evidence was concluded, and after
the parties submitted their requests for instruc-
tions, the court delivered its charge upon the
whole case, reading to the jury the instructions
asked by either party that were approved, and
accompanying them with such observations, by
way of explanation or qualifiaction, as it deemed
necessary.

The third and fourth points submitted in behalf of plaintiff were overruled. They were as follows:

"Third. If the jury believe from the evidence that the defendants received the plaintiff as a passenger, and that they failed to provide her with a seat, or that she was unable to obtain a seat by reason of the crowded condition of the boat, and while standing in the cabin she was, without any fault of her own, thrown down and injured by a sudden shock to the boat, then the defendants are guilty of negligence, and your verdict should be for the plaintiff.

"Fourth. If the jury believe from the evidence that the defendants received the plaintiff, a woman 67 years of age, as a passenger, and that they failed to provide her with a seat, or that she was unable to obtain a seat by reason of the crowded condition of the boat, and while standing in the cabin she was, without any fault of her own, thrown down and injured by a sudden shock to the boat, then the defendants were guilty of negligence, and your verdict should be for the plaintiff."

66

At the conclusion of the charge, the plaintiff, by counsel, excepted to the overruling of her third and fourth points, and, also, to the charge and opinion" of the court. No other exceptions were taken.

1. The general exception to the charge did not direct the attention of the court to the particular portions of it to which the plaintiff objected. It, therefore, raises no question for review by this court. Conn. Life Ins. Co. v. Union Trust Co., 112 U. S., 250, 261 [Bk. 28, L. ed. 708], and authorities there cited."

2. The only question for determination relates to the refusal of the court to instruct the jury as indicated by the third and fourth points of the plaintiff, which involve substantially the same proposition. Those points were properly overruled. Under the theory of the case which they present, the jury-although the sudden shock to the boat, from which plaintiff's injuries immediately resulted, may have occurred without want of care or skill upon the part

with seats; but it did not appear that a less num-
ber was provided than was customary and suf-
ficient for those who ordinarily preferred to be [47
seated while crossing in ferry-boats between
Camden and Philadelphia. No circumstances
were disclosed that would have justified the
jury in finding that a proper degree of care,
upon the part of defendant, required it to pro-
vide seats sufficient for the accommodation of
all the passengers that its boat could safely
carry, or of such number of passengers as or
dinarily traveled upon it.

The judement is affirmed.
True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S.

JAMES B. EDMONDS ET AL., Commis [453 sioners of the DISTRICT OF COLUMBIA, Appts.,

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BALTIMORE AND POTOMAC RAIL-
ROAD COMPANY.

(See S. C., Reporter's ed., 453-463.)

Washington City—right of Baltimore & Potomac Railroad Company to use of streets, subject to control of Congress-construction of statute.

1. The title to the streets of Washington is in the United States, and the right to use them for any other than the ordinary use of streets should pro

ceed from Congress.

2. The Baltimore and Potomac Railroad Company ington as have been expressly designated by Concan occupy only such streets in the City of Washgress for that purpose.

struct a lateral track from Maryland Avenue across 3. The said Company is without authority to conor along 14th Street to reach a freight depot on square 233.

4. The said Company was not organized under the and it derives no authority under that Act to use general corporation law of the District of Columbia the streets of the City of Washington.

5. The Maryland charter of the said Company does not confer any power to use the streets of a city as an incident of its right to run to and from such city.

[No. 1283.]

Argued Apr. 9, 1885. Decided Apr. 20, 1885.

APPEAL from the Supreme Court of the

of Columbia.

The history and facts of the case appear in the opinion of the court.

Mr. A. G. Riddle, for appellants.

Mr. Enoch Totten, for appellee: It is the established law of this court that whenever a statutc authorizes the construction and operation of a railroad, the authority is ne cessarily implied to construct warehouses, stations and other works, and to construct side tracks communicating between them and the main line of the road.

Rock Creek v. Strong, 96 U: S., 276 (Bk. 24, L.

454]

ed. 815); R. R. Co. v. U. S., 93 U. S.,453 (Bk. 23, L. ed. 970); see, also, Toll Bridge Co.v.R.R. Co. 17 Conn.,454; Black v. R. R. Co., 58 Pa. St., 249; Turnpike Co. v. R. R. Co., 2 Harr. (N. J.), 314; Duncan v. R. R. Co., 94 Pa. St., 435; R. Co. v. Daniels, 16 Ohio St., 390; R. R. Co. v. Kip, 46 N.Y., 546; Protzman v. R. R. Co., 9 Ind., 469; R. R. Co. v. Municipality of N. O., 1 La. Ann., 128.

As to the implied authority of a railroad company to construct its road on and over the public domain, see Improvement Co.v. La Crosse Co., 54 Wis., 659; R. Co. v. State, 3 Ind., 421; R. R. Co. v. R. R. Co., 8 C. E. Green, 157; Davis v. R. R. Co., 1 Sneed, 94; U. S. v. Bridge Co., 6 McLean, 517.

Congress having reposed the power of selecting the site for the warehouse in the officers of the Company, and they having chosen this square, it is just as firmly established as a terminus of the side track as if the Act itself had in terms fixed the location. This being true, the right to lay the connecting side track follows from necessity.

R. R. Co.v. Hall, 91 U. S., 356 (Bk. 23, L. ed. 429); Duncan v. R. R. Co., 94 Pa. St., 435; R. R. Co.v. Adams, 3 Head., 597; R. R. Co. v. Speer, 56 Pa. St., 325; People v. Brooklyn R. Co., 89 N. Y., 75; Rorer, R. R., 489; R. R. Co.v. R. R. Co., 23 N. J. Eq., 157; Hughes v. R. R. Co., 18 Fed. Rep., 106; R. R. Co. v. Gas Light Co., 63 N.Y., 326; P. R. Co. v. Dunbar, 100 Ill., 110, R. R. Co. v. Brownsville, 45 Tex., 88; 10 Johns., 388.

Mr. Justice Miller delivered the opinion of the court:

This is an appeal from the Supreme Court of the District of Columbia.

|

The Railroad Company has constructed its road from Baltimore through the District of Columbia and through the City of Washington to the Potomac River at Long Bridge, on which it crosses that river to the Virginia side. It has done this by virtue of several Acts of Congress granting the necessary authority to do so. At the Washington end of the bridge it has purchased and now owns one of the squares of the city and part of another, numbered, in the division of the city into streets, squares and lots, squares 233 and 267. These squares are divided by Fourteenth street, running north and south, and square 267, on its south side, abuts on Maryland avenue, one of the streets of the city. At the junction of Maryland avenue, whose course is nearly east and west, and Fourteenth street, there is a considerable space of ground made by Water street, which follows the bank of the river, and the other two streets, which is a public highway made by the union of all three streets at that point. A map or diagram found in the record, and which the reporter will copy, is necessary to a clear understanding of the controversy. [See next page.] The Railroad Company alleges that its increased traffic requires in the City of Washing-| ton additional accommodations for receiving, storing and transferring freight, and that it has purchased the two squares mentioned for that reason, and that it intends to build a freight depot on square 233, as being at once convenient for the Company and more out of the way

of the travel, current business and residences of the citizens than any point within reasonable distance of the line of the road. As their road is at present located lawfully on Maryland avenue, along which it touches the city end of the bridge, this allegation is probably true.

In order, however, to reach square 233 with its trains, they must depart from_Maryland avenue and cross square 267 and Fourteenth street, which lies between the two squares, or they must make a curve from the avenue around the south end of square 267, and reach square 233 by the use of the public highway made by the junction of Maryland avenue, Water street and Fourteenth street, and, in so doing, depart from Maryland avenue. The Company gave notice, as required law, to appellants, who, as Commissioners of the District of Columbia, are charged with the care and protection of the streets and other highways of the city, that it intended to construct a lateral track, which, leaving its main track on Maryland avenue at a point near its intersection with Thirteenth street, should cross square 267 from its east to its west side, and then crossing Fourteenth street, would reach its projected depot on square 233. The Commissioners refused to consent to this, and, fearing it would be attempted without such consent, they guarded the way across the street by police force for some time.

[455]

In this condition of affairs, the Railroad [456] Company filed its bill in chancery in the Supreme Court of the District of Columbia, praying an injunction against the Commissoners, to prevent them from interfering with the exercise of the right which the Company claimed of laying its track across Fourteenth street, and that court granted an injunction as prayed.

The appeal of the Commissioners from this decree brings the matter in issue before us for review. Neither the pleadings in the case, nor the relief sought by the bill, nor the decree of the court, brings into question the right of the Company to purchase squares 233 and 267, nor the right to erect on either of these a warehouse for the storage of freight. Nor does the question arise of their right to locate at that place such a depot as their business requires, nor to use it as such, if they have the right of access to it by using the streets and highways of the city for that purpose. This court does not, therefore, consider those questions, because the only point raised by the record is the right of the Company to my in or across the streets of the city their railroad track, and use it as a means of transit for its locomotives and cars, without any express authorization by Act of Congress, or the consent of any authority representing the City of Washington or the District of Columbia.

The assertion of the existence of such a right is, to say the least, somewhat novel. It is not known to any member of this court that any railroad company, whether its cars are propelled by steam or horse-power, has ever claimed to use the streets of an incorporated city or any part of them, without express authority from some legislative body, or the authorities of the city governmennt. It would be a strange grant of power which, authorizing a railroad company to enter or even pass through a city, should

[476]

of the defendant's servants-would have bee required to find for the plaintiff, if the defend ant failed to provide her with a seat, or if sh was unable, by reason of the crowded conditio of the boat, to obtain one. In other words that the mere failure of the Company to pro vide a seat for a passenger on its boat was, i law and of itself, proof of negligence. It ap with seats; but it did not appear that a less nun ber was provided than was customary and su ficient for those who ordinarily preferred to b seated while crossing in ferry-boats betwee Camden and Philadelphia. No circumstance were disclosed that would have justified th

usually crowded with passengers. The river
at the time was very full of ice, and it was dif-
ficult for the boat to get across and enter the
ferry slip on the Philadelphia side. The wharf
on that side was reached only after repeated
efforts. In the attempt to land, the boat was
driven against the bridge with such force as to
throw the plaintiff and a number of other per-
sons, all of whom were standing during the pas-peared in evidence that the boat was provide
sage across the river, with great violence upon
the floor. The fall caused serious and, per-
haps, permanent injury to the plaintiff. In this
action she claims damages from the defendant
upon the ground that her injuries resulted from
the careless and negligent management of the
ferry-boat by its agents and servants. The plain-jury in finding that a proper degree of car
tiff made a case entitling her to go to the jury
upon the issue as to the defendant's negligence.
But there was, also, proof tending to show that
the striking of the boat against the wharf on
the Philadelphia side occurred under peculiar
circumstances, and could not, perhaps, have
been avoided by any diligence upon the part of
the agents of the defendant.

When the evidence was concluded, and after
the parties submitted their requests for instruc-
tions, the court delivered its charge upon the
whole case, reading to the jury the instructions
asked by either party that were approved, and
accompanying them with such observations, by
way of explanation or qualifiaction, as it deemed
necessary.

The third and fourth points submitted in behalf of plaintiff were overruled. They were as follows:

"Third. If the jury believe from the evidence that the defendants received the plaintiff as a passenger, and that they failed to provide her with a seat, or that she was unable to obtain a seat by reason of the crowded condition of the boat, and while standing in the cabin she was, without any fault of her own, thrown down and injured by a sudden shock to the boat, then the defendants are guilty of negligence, and your verdict should be for the plaintiff.

"Fourth. If the jury believe from the evidence that the defendants received the plaintiff, a woman 67 years of age, as a passenger, and that they failed to provide her with a seat, or that she was unable to obtain a seat by reason of the crowded condition of the boat, and while standing in the cabin she was, without any fault of her own, thrown down and injured by a sudden shock to the boat, then the defendants were guilty of negligence, and your verdict should be for the plaintiff."

At the conclusion of the charge, the plaintiff, by counsel, excepted to the overruling of her third and fourth points, and, also, to "the charge and opinion" of the court. No other exceptions were taken.

1. The general exception to the charge did not direct the attention of the court to the particular portions of it to which the plaintiff objected. It, therefore, raises no question for review by this court. Conn. Life Ins. Co. v. Union Trust Co., 112 U. S., 250, 261 [Bk. 28, L. ed. 708], and authorities there cited."

2. The only question for determination relates to the refusal of the court to instruct the jury as indicated by the third and fourth points of the plaintiff, which involve substantially the same proposition. Those points were properly overruled. Under the theory of the case which they present, the jury-although the sudden shock to the boat, from which plaintiff's injuries immediately resulted, may have occurred without want of care or skill upon the part

upon the part of defendant, required it to pr
vide seats sufficient for the accommodation
all the passengers that its boat could safel
carry, or of such number of passengers as o
dinarily traveled upon it.

The judement is affirmed.
True copy. Test:

James H. McKenney, Clerk, Sup. Court, U.

JAMES B. EDMONDS ET AL., Comm sioners of the DISTRICT OF COLUMBI Appts.,

0.

BALTIMORE AND POTOMAC RAIL
ROAD COMPANY.

(See S. C., Reporter's ed., 453-463.)

Washington City-right of Baltimore & Po mac Railroad Company to use of streets, s ject to control of Congress-construction statute.

1. The title to the streets of Washington is in t United States, and the right to use them for a ceed from Congress. other than the ordinary use of streets should p

2. The Baltimore and Potomac Railroad Compa ington as have been expressly designated by C can occupy only such streets in the City of Was gress for that purpose.

struct a lateral track from Maryland Avenue acr 3. The said Company is without authority to c or along 14th Street to reach a freight depot square 233.

4. The said Company was not organized under and it derives no authority under that Act to general corporation law of the District of Colum the streets of the City of Washington.

5. The Maryland charter of the said Company d not confer any power to use the streets of a city an incident of its right to run to and from si city.

[No. 1283.]

Argued Apr. 9, 1885. Decided Apr. 20, 18

APPEAL from the Supreme Court of

District of Columbia.

The history and facts of the case appea the opinion of the court.

Mr. A. G. Riddle, for appellants.

Mr. Enoch Totten, for appellee: It is the established law of this court t whenever a statutc authorizes the construct and operation of a railroad, the authority is cessarily implied to construct warehouses, tions and other works, and to construct tracks communicating between them and main line of the road.

Rock Creek v. Strong, 96 U. S., 276 (Bk. 24

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2

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ER. Co. v. U. S., 93 U. S.,453 (Bk. 23, see, also, Toll Bridge Co. v. R. R. Co. 64 Black R. R. Co., 58 Pa. St., 249; 4. R. R. Co., 2 Harr. (N. J.), 314; TR. R. Co., 94 Pa. St., 435; R. Co. v. * Ohio St., 390; R. R. Co. v. Kip, 46 Protzman v. R. R. Co., 9 Ind., 469; Hunicipality of N. O., 1 La. Ann., mplied authority of a railroad comact its road on and over the pubwe improvement Co. v. La Crosse Co., B. Cov. State, 3 Ind., 421; R. R. Co. 8C. E. Green, 157; Davis v. R. R. ‚H; V. S. v. Bridge Co., 6 Mc

having reposed the power of selectfor the warehouse in the officers of 2y, and they having chosen this as firmly established as a tersade track as if the Act itself had the location. This being true, ay the connecting side track folm pecessity.

T

Ha, 91 U. S., 356 (Bk. 23, L. ed. 5. v. R. R. Co., 94 Pa. St., 435; Adam, 3 Head., 597; R. R. Co. v. Fast 325; People v. Brooklyn R. Co., * Rover, R. R., 489; R. R. Co.v. R. NJE, 157; Hughes v. R. R. Co., 18

RR. Co. v. Gas Light Co., 63 2. R. Co. v. Dunbar, 100 Ill., 110, rocille, 45 Tex., 88; 10 Johns.,

Miller delivered the opinion of

peal from the Supreme Court net of Columbia.

|

d Company has constructed its more through the District of and through the City of Washington mac River at Long Bridge, on which river to the Virginia side. It by virtue of several Acts of Conthe necessary authority to do so. on end of the bridge it has and now owns one of the squares of art of another, numbered, in the ety into streets, squares and and 267. These squares are Fourteenth street, running north dsquare 267, on its south side, and avenue, one of the streets Aleanction of Maryland aveurse is nearly east and west, and there is a considerable space ate by Water street, which follows river, and the other two streets, highway made by the union t at that point. A map or diaa the record, and which the renecessary to a clear undertroversy. [See next page.] Company alleges that its inres in the City of Washingaccommodations for receiving, hustering freight, and that it has quares mentioned for that attends to build a freight 123, as being at once convejay and more out of the way

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of the travel, current business and residences of the citizens than any point within reasonable distance of the line of the road. As their road is at present located lawfully on Maryland avenue, along which it touches the city end of the bridge, this allegation is probably true.

In order, however, to reach square 233 with its trains, they must depart from Maryland avenue and cross square 267 and Fourteenth street, which lies between the two squares, or they must make a curve from the avenue around the south end of square 267, and reach square 233 by the use of the public highway made by the junction of Maryland avenue, Water street and Fourteenth street, and, in so doing, depart from Maryland avenue. The Company gave notice, as required law, to appellants, who, as Commissioners of the District of Columbia, are charged with the care and protection of the streets and other highways of the city, that it intended to construct a lateral track, which, leaving its main track on Maryland avenue at a point near its intersection with Thirteenth street, should cross square 267 from its east to its west side, and then crossing Fourteenth street, would reach its projected depot on square 233. The Commissioners refused to consent to this, and, fearing it would be attempted without such consent, they guarded the way across the street by police force for some time.

[455]

In this condition of affairs, the Railroad [456] Company filed its bill in chancery in the Supreme Court of the District of Columbia, praying an injunction against the Commissoners, to prevent them from interfering with the exercise of the right which the Company claimed of laying its track across Fourteenth street, and that court granted an injunction as prayed.

The appeal of the Commissioners from this decree brings the matter in issue before us for review. Neither the pleadings in the case, nor the relief sought by the bill, nor the decree of the court, brings into question the right of the Company to purchase squares 233 and 267, nor the right to erect on either of these a warehouse for the storage of freight. Nor does the question arise of their right to locate at that place such a depot as their business requires, nor to use it as such, if they have the right of access to it by using the streets and highways of the city for that purpose. This court does not, therefore, consider those questions, because the only point raised by the record is the right of the Company to may in or across the streets of the city their railroad track, and use it as a means of transit for its locomotives and cars, without any express authorization by Act of Congress, or the consent of any authority representing the City of Washington or the District of Columbia.

The assertion of the existence of such a right is, to say the least, somewhat novel. It is not known to any member of this court that any railroad company, whether its cars are propelled by steam or horse-power, has ever claimed to use the streets of an incorporated city or any part of them, without express authority from some legislative body, or the authorities of the city governmennt. It would be a strange grant of power which, authorizing a railroad company to enter or even pass through a city, should

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