
    (Eighth Circuit — Cuyahoga Co., O., Cir’t Court,
    Jan. Term, 1896.)
    Before Caldwell, Hale and Marvin, JJ.
    THE BOARD OF COUNTY COMMISSIONERS OF CUYAHOGA COUNTY v. THE A., B. & C. R. R. CO.
    
      State road passing through hamlet under exclusive control of trustees of hamlet — See. 1651 R.fS. —
    Sec. 1651 R. S. gives to the trustees of hamlets the exclusive jurisdiction of public roads etc. within the limits of the corporation; and therefore, where the trustees of a hamlet have given a franchise to an interurban street railroad company to lay its tracks on one of the streets of the hamlet which is also a state road, the commissioners cannot maintain an action to enjoin the use of the street by such street railroad company. >
    Error to the Court of Common Pleas of Cuyahoga county.
    In November, 1894, the commissioners of Cuyahoga county, granted to the Akron, Bedford and Cleveland Railroad Company, a franchise to construct and operate a street railroad upon one of the public roads of the hamlet of Newburgh, within said county. One of the terms of the franchise was, that the track should be laid along the southern side of the highway. In May, 1895, the railroad company obtained a franchise over the same road, from the trustees of the hamlet of Newburgh. By the terms of this franchise the track was to be laid along the northerly line of the highway. The railroad company began to lay its track in accordance with the terms of the hamlet franchise, and the commissioners of the county brought suit to enjoin the company from laying the track on the northerly side of the highway. Judgment was given for the defendants in the lower court, and the plaintiff appealed.
   Marvin, J.

This is the case of The Board of Commissioners of Cuyahoga county v. The A. B. & C. R. R. Co. to enjoin the construction of the track of the railroad company along the’ northeasterly side of the state road passing through the hamlet of Newburgh.

The commissioners make the claim that this road shall not be laid along the northeasterly side, because they, the-commissioners, recently, before the railroad company undertook to construct this road, had expended considerable money under the statute found in the 89 Volume of the' Ohio Laws, page 199, which statute authorize the levying by the commissioners of a tax on the entire property of this county to construct and improve public roads outside of' cities and incorporated villages. The commissioners say that, a franchise wbb granted by them to the railroad company to construct this track on the southwesterly side of that road.

Now, without going into a discussion of all that is before us, we find that section 1651 of the Revised Statutes of Ohio gives to the trustees of hamlets the exclusive jurisdiction of public roads and streets, alleys, sewers and drains within the limits of the incorporations; trustees of the hamlet have exclusive jurisdiction, Now, that being true — and let me say that language is a little stronger than section 2640, which gives the control of streets to the council of other incorporations than hamlets — that being true,it seems-to us the commissioners cannot maiutain this action. Whether the trustees have given a franchise to this company or not, it seems to us that the commissioners cannot maintain an action to enjoin the use of a street, the exclusive control of which is given to the trustees of the hamlet, and the petition for the injunction is dismissed.

(The authorities cited to the court were: Elliott on Roads and Streets, B32, 312; Cooley on Const. Lim. 4th ed. 811, 312; citing 20 Ill. 200, 24 Ill. 22, 50 Ill. 39, 16 Mo. 88, and 33 Mich. 28. The Ohio cases cited were: 46 Ohio St., 595, 699, 663; 45 Ohio St., 401; 35 Ohio St., 1; 17 Ohio St., 99; 33 W. L. B., 171; 31 Ohio St., 648; 11 Ohio St., 190. Statutes: Sections 4615; 4829; 4831; 4850; 1599; 1606 to 1613; 1651; 89 O. L., 199; 90 O. L., 315; 66 O. L., 150, 151, 152; 71 O. L., 65.)  