The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1886-11-30
MEMPHIS DAILY APPEAE---TUEsDAY NOVEMBER So 1885

| involved Ia tne iiugauOn. Her8
seems TO us that on the fsca of th
two grants set ont in the PIE ding
there js ihst conflict which rails s :
Federal question.
Bat aside from thst, authority
claimed by THE Memphis CITY RNlws,
Company and by The Cilzens' Railws,
Company 10 contract with the city O
Memphis for any purpose whateve
connected either dlreatly or ind recsl,
with constructing, maintaining anC
operating aaid railways. Now II
1866 ard 1879 the Memphis CITY Rail
way entered into such a contract, ia,
terms aud ktipulshons OF which I hav,
already stated. In 1885 the city Of Mem
phis entered into contract with tbs
CiJizens' Railway Company, which Or,
dertakes In express terms, and Is
dis inctly sverred in the pleadingp, to
modify, change and limit The contract
entered into in 1856 with the Memoirs
City RsilroId Company. The cont, act
undertakes in express terms to restrict
the rights claimed or asserted by the
Memphis City Railway Company. and
to exclude 1t from a portion ot.the
streets of th6city OF Memphis-to de.
fine its limits and exclude Il. Now
the grounds On which the city and the
new company claim that tight ara
wholly immateria, unless claimed
under the old company itself.
They claim 1t by virtue Of the
fact, as set out in the plead
ing1, that the old company has
misust d and abused its chartt + privi-
leges and forfeited them 10 some ex.
tent. The city claims the right to
make the. Coltfast Of 1885 with the
new company under legislative
power, and the Cit2 ne Railway Com
PAL y asserts 1t by virtue of the same
powers OF the Taxing District aud
its own charter. Thus it appears that
these two rival companies, acting un-
der powers assumed to have been
granted by Stata legislation, ( uan
either in their oSn c arte's J. 10 /
the city, or all Of tn IN, md, ase TO
exercise the resptC i've hanchi,.
claimed by each, and I'll y dis nrsp 40
to the extent OF their Spsctiye iIknta
and set up coLfliGirg claims.
How stands the Csc upon that state
of facts?
This court does not now decide
whether the ro-tract OF 1865 is va i'd
or invalid. Bat this may be said
about that: II the city OF Memphis
did not have IN It's charter authority
to make that contract, Ia express
terms, may it not be asserted that the
charter privilege granted to the rail-
road company conferred that power ?
1t would be, or seem to be, an absurd
ity to cay that because the city charter
was silent, when the Legislal ure Ia ex.
press terms empowe ed the railway
company to contract with the city for
any purpose whatever conuectt d d.
rectly or indirectly with construct
ing, maintaining and operating
that street railway, that the
city had no tuch power. That
clause in the charter Of the railway
company would seem to be gu Efficient
grant OF leRisla I've power to authorizs
the city to make the contract. The
point is not now presented for decls-
on, and we only suggest it here to
show how these powers may and
10 arise, II at all, by leglsla-
i've giant. We'll, assume that
he city had the authority to make
;he contract with the old company in
1866, and by the charter OF the Oft
zsns' Railway Company or its own, it
had the authority TO make the con-
ract Of 1885 with that company, and
you produce a corh ct that raises
constitutional question as to whether
he franchise established by the con-
,rsct of 1866, and author zed by the
charter OF the old company, is not vio-
led by the franchise established by
he coouact OF 1885, author xed by the
.harter of the new company or that OF
he city itsyh. Woen you reach that
situation you have Federal question,
necessarily; and the pIeadiDgs raise
nese qntstioBs. The old company
user 8 tnat its rights have been VIC.
ated that its vert charter rights |
lave been violated by what is being
lone and what has b zen done. The |
dill sets them up. Aud In the other
'ase the answer and the cross bill set |
Up thee questions.
Now the theory Of the bill OF the |
Memphis City Railway Company
lga INST the Taxing Distr Ct is, that by |
virtue. of the derision made in 1866 the |
Taxing District is estopped from as
Ierting the rights that are thus
,ls med, and interfering with the old |
company. Then when you come to
cad the answer of the Taxing Dis.
riot, the Taxing District sets up in
ts own defeDse the CHS OF the new
and an authority to con-
ract with the new Company in the
xercise Of its own powers and the
lowers conferred upon the new COM
ANY. And so, upon bill and answer
.ppears Federal. question, perfectly
Instinct and clear.
In the other case-the Oitizsns
Railway Company sgainst the Mem |
his City Railway Company-ihe bill /,
nd answer, and the cross bill and |
nswer, and the exhibits, raise the
anne Federal question, perfectly plain
N the pleadings, to say nothing Of the
'etition for removal.
Our conclusion ie that while there
nay be also other questions, it is per-
Getty clear thai there is a Federal
uestion in both cases that will give
his court jurisdiction, and upon
1hich the Supreme Court OF the
Jnited States ought to render the
nal decision, II the parties desire.
The motion to remand Is overruled.
My brother, Judge Hammond, con-
urs fully.