Evening star. [volume] (Washington, D.C.) 1854-1972, 1872-08-31
The Railroad War In Court.
". AND q. n. r. AGAINST THE BOARD OF rUpIf,
WORKS AND VICE vERsA-DRCIsIOy
OF JUDGE HUMPHREYS.

X X Il
WORKS AND VICE vERsA-DRCIsIoy
OF JUDGE HUMPHREYs.
Yesterday after our report Of the cases of the
W. and q. Il. II. Go. agt. the Board of Public
Works and the Board of Public Works agt. the
Washington aud Georgetown Railroa,, Comparr
before Judge Humphreys, holding the FIuitv
Court, closed, Mr.. Jos. II. Bradley, jr., ooE-
Guided his argu ment for the COMPANY and was
followed by Mr.. s. l. Phillips who said thst
there vas involved In this case questions OF great
Importance, one of the greatest being whether
improvements were &c be retarded BY the III gifts
OF a thousand and one cOrpoT ators. The board
was not an irresponsible one and they could be
removed by the power by whom they were ap
pointed. So far had they performed their dutie.
that streets which few months ago were ms
rasses are now being improved and buildings
being erected thereon, ana the price or iandhas
gone up from tTine To a sum ubdTeaMed OF.
The praise of the board was now heard from
end OF the country TO the other. The board
does not come here as private sIIitor, but
| the representative of the government and the
people, and the question is whether thiS
private corporation shall prevent the parking
and identifying OF the Avenue by keeping their
track in the center, and whether hey may lay the
unsiChtiy cobble stone pavement in their ira rs.
He argued that under the - IL section OF the
organic act the board has eEtre an exclusive
control of The streets, aven1es and alleys. Con
gTess in this gave them legislative powers. He
claimed that under this unconditional grant OF
power they had the right to grade, pave and
park streets and avenues. The term repair
must necessarily mean grading and paving. Tor
this latter the only IRsde of keeping in
repair. he DcNt proceeded to Ul<Cr<S what
the rights OF the Washington and Georgetown
railroad, and read from their charter that the
use and mainteI ance OF said sad shall be sab
jet to the proper municipal reguls;Ous OF the
cities OF Washington and Georgetown. tie do
MED that the company had the fee tImple 10 the
lard in the center Of the avenue, and it would
be preposterouS tor them to CLAIM, such power.
Have they the right u set NJ their arbitrary
will and say that they will put down anv pave
nent which the people do not Want. Wal the
people say that the company have the power to
gIPVent n M
the most beautiful street in the country. He
concluded by charging that by sn agreement
between the board and the railroad the tracks
were taken up from the center and laid on either
side of the proposed park, under which the
board made contracts and spent large sans OF
money, and were going ahead with the work
when they were enjOined.
Mr.. Bradley concluded the argument, saying
the board of public works relied uPon the act
aIpToPFsting 81 eco .9,<. passed by tine iegiSla-
tive assembly, in which all changes made we're
to he in accordance with plan submitted 70
the legislature. The parking of the centre OF
Pennsy lvania avenue east was not presented as
part of that plan. He admitted that the rail
road company were bound to conform to the
grade OF the street, but denied that any act OF
Congress required them to conform to the char
acter of the pavement.
A recess was then taken until o'clock p. m
DECISION OF THE COURT.
After recess, Messrs. Shepherd and Brown. of
the board of public works; Mr.. e. g. Sailor OF
the railroad company. and few others. ap-
peared in the courtroom, and Judge Hum
After giving his construction Of the acts Of
Congress cited by counsel, he says" One
question between the parties is where the track
shall be laid. The company contends that II
has the right-notwi tanalng the alteration of
grades-to lay its track in the center III the ave-
nue., or as near 1t as NAV he. | have come to
the conclusion that this is q right which the
company has, If il can be exercised without in
terseriDg as prohi bited.
The company has the real estate in the center
of the avenue, takes il with its burthens, j.
bOUnH a lppI, VI n A. ~ nal moi
be authorized to force An individual to change
sides of street, neither can it take away the
property of the company without cOIdcmning
il for public and compromising therefor
We cannot say what motive induces the action
OF the company. Sufficient is it that they have
right to the center. unless power has been
given to the constituted authorities Of the Dis
trict TO change their locality" 4
The remaining question is tb It of the pave
ment TO be made by the company; ami that j.
not without its difficulties. BIT a the question
is not in an attitude to be DECIDED, the opinion
cannot be conclusive upon the court. nor can it
affect the determination of the present case.
The act of 100 related only to the avenue from
the Capitol grounds 10 18th street. The act OF
Is providing government for TIE District of
Columbia being subsequent, is not controlled
by the previous act as 70 III finished repairs. In
Gil n alters OF the exercise OF power. where there
Is a reasonable deCbt of its existence. courts
should decline to assert it. 1t may be that the
alteration proposed 5y the board would be more
tasteful, ornamental and agreeable to the eve.
But the question snbscitted to me is one OF
power. Legislative power may regulate the
question; but, n have before said, the board
has not legislative capacity. It's unQlestou.1
dele gated powers are ample for the objects and
uTposes OF its creation"
- l viii draw up, or direct to be drawn, a de-
cree eDiOining the board Of pEtlic works from
changing tie tTackof the railroad, and a decree
refusing ard dLsallOEius an injUEcti0n against
the railroad, and dischsrging the rule against
he same az the suit of the board"
TIE iGdge in rendering his decision. intimeted
that the board had a remedy to require the COM
pany to pave their PORTION Of the sGest to &C.
cord with ;As remainder.