The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1884-04-24
THE INJUNCTION.

The injunction filed In the district
court by the city railroad company to
prevent the city from interfering with
the company in the extension of its
track on Live Oak street, was argued
at length before Judge Walker last
night, Col. A. ]. Peeler representing
the company, and Messrs. Walton q
Hill, John Dowell and City Attorney
Pendexter appearing for the city.
The answer filed in the case was in
the nature of exceptions to the allie
cations of the petition, setting forth
that the residents and property own
ers on Live Oak street objected to the
running Of track on that street as a
great Inconvenience to them and det-
riment to their property; and further,
that it was not shown that the use of
another street Cypress street) as
had been proposed would not equally
serve the interests of the company,
and at the same time without incon-
| venience to the general public. The
object of the extension being to con-
| meet the business portion of the city
with the Central depot, there was no
reason why the proposed extension of
the city railroad should be diverged
from the more direct route by Cypress
to that of Live Oak, which would be
two blocks further.
On the other hand, it Is contended by
the company that a couple of blocks
difference In directions is matter Of
little consequence to the public, and
| that the Cypress route is liable to the
objection of being already occupied by
the track OF the Central railroad.
The argument of the counsel was
learned AID elaborate, lasting nearly
two hours and covering, 1t seemed,
nearly every phase of the questions
involved as to effects of legislation
generally and specially upon the rights
of cities and private corporations as
affected by municipal rights. Vested
rights, rights inchoate and effectuated
original and reserved powers, ease
ments, etc., were all learnedly dis
cussed in their bearing on the ques-
ton at too great length to attempt to
follow. For the company it was
strenuously insisted at the conclusion
of the agreement that the use
of the street in front of a mans
premises don't belong to him or any
more than it does to all the other
citizens of a place. Public convent
ence meant the convenience of the
public generally, and not of few who
may happen to be inconvenienced,
and if actually damaged have the right
to cavil and sue for damages.
Col. Peeler argued that where the
fee of the street is in the public or in
the city corporation, in trust for the
public, the legislature may authorize
the street to be used by railroad
company without the consent of the
city, and without compensation to the
city. authorities cited)
| In the case at bar the legislature of
Texas by special act approved May 10,
: 1871, authorized the Austin City
Railroad company from time to
time to construct, equip and
run horse railroads upon and
and along such streets Of the city as
the public convenience, or the inter-
terest of the company may require.
This Is an absolute and unconditional
grant of authority, and 1t is not in the
power of the city or the court to say
that the authority thus given shall
not be exercised, or to rest let its exer-
else. The charter thus granted, ex-
tending as it does, not to particular
street or streets, but in express terms
to all the streets, is a binding contract
) for twenty five years, as to all the
streets, which no constitutional con-
venventlon or legislature can repeal,
much less city corporation, which is
itself but the creature of the statedi
When a railway company has the
right to occupy the streets of city
with its track, without the consent OF
the municipal authorities, the city can
not impose conditions on the railway
company by an ordinance granting
the right OF way which shall be bind
Ing on the company upon its use of
the street, and create an obligation
for the performance of the conditions.
(Authori ties cited)
If the consent of the city Of Austin
was necessary it was given as to
ALL THE STREETS
by ordinance of September 9TH, 1884,
and after the company had in part
constructed It's road and was about to
furtur extend it on a particular street;
the repeal of the ordinence as to such
street Is with out effect as against the
right of athe company. Rio Grande
Railroad Company VS.. the CITY of
BIownville, as Tex. SO.
There Is nothing in the charter of
the city government, or In any law of
the state which countenances' this at
tempted violation of all the princi-
pies of justice, and If constitutional
convention or legislature cannot i'm
pair the obligation of a charter con-
tract, or take property without due
process Of law municipal corpora
tion, the mere creation of the state.
which may be abolished at any time,
however exalted the estimata it may
place upon its power, or high handed
the measures to which it may resort
cannot do so, and it is the province of
the court to check all such attempts.
Judge Walker reserved his decision.
THE INJUNCTION.