Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1888-06-03
CARY-STREET ROUTE.
yuRTaER ARGUMENT IN THE IEJUKc-
TON CASE.
Views ss Presented 10 the Court by Colo
mel TAzowtll Elicit and City
Attorney Meredith.

The defence 10 dissolve The IN junction re-
tirlinng the Union Passenger. Railway Com
pany from extending rs line on Cary street,
and the Board o. Aldermen from granting
the privilege 10 do so, was continued In the
Chsncery Court before Judge Barton yestor.
DAY az II o'clock. Colonel Tazewcll Elicit,
Of counsel fog the petitioners, made the open
IN speech.
PLAINTIFFS WEws.
lie began ty iusietins that the court Of
equity must have fun power 20 enion mu-
Niciptl corporation when a. WAS undertaking
ascp beyond those ciyea Il by It's charter
that he saw 20 reason why there shOulG be
ary distinction betwccna municipal corpO-
ration ir0m passing an Illegal ordinance any
more Than euteriDg into an Illegal
contract; that they claimed IN tbis
case That The court was Cnioined
from making a contract, though called an
ordinance. lIo cited authorities % sLbsiaq-
TIT hrs yicvs. He then insisted that the
attempt on The part OF the Cty Councl 10
grant The Carv.strcct ordnance vas uiirG
UFfs; that while there was some difference
among thc authorities az 10 The power OF &
council TO authorize the laying OF a street
railway. yet be contendeG HAT the true doc
tfiue s. hat the city has 70 such power
- permit such an act without c0npcn alton
IN the abutiEg owners; ID 4 even taking
tho views o. Tie authorities holding 10 tho
contrary, thew never authorized the laying
of tAe track where il would destroy the use
az Che street 10 TIE general public; that the
allegations in their bin. which, upon the mo-
ton before the court, had 10 be now re-
RArlcd as true, presented Just That KIND oi
case, ard therefore called for tho interference
% "a court of equity.
C0lou,l Elicit further Insisted that The bill
charged tbst the laying Of tao Cagy.strert
track, togrther with its many wires and
poles, wOuld Doc a nuisance, and Tor that rea-
F.n TIE court bad jurisdiction 20 prevent rs
being done, and cred authorities 10 sustain
DOB, position. lie SD that while neither his
nrm as counsel nor his ciieut- had any desire
60 unnecessarily hamper this company,
which had 50 materially benefited the
oy. yet In arguing The question
before The court as 10 the night
o. use electricity SIS a motive power, he must
f.y th7t The company was using IL, In bis
oa1i00. without authority OF Law; That tins
Cry Council he'd no right to authorize the
u-r oi such q motive power; that The Coun-
,lrs power D. limited by The charter Of the
cf'; tbtt 10 is rule OF law that all
uur.c'oI charters must be strictly con.
I'rl.d, and cited authorities; that the
charter OF the CITY only gave the C0un-
rI power o. lay sfrect-ralway tracks
and to run thereon "hor,c-cars"; that the
term hor>e-car must De construed 70 mean
ri. drawn by horses or mules; that as the
charter mentioned ihit Nina 81 meiYe. power
20 must De prc.umed th1t tic legislature
intended 10 cX ludc all other kinds Of motive
rpwtr. and thlt therefore the permission 10
Usr electricity 20 run street railway cars was
beyond the power az TIE Council to grant.
Colonel Ileit then commented on the sct
@ . oa.f fu March ICE on.
f'cl can act e1argiug the powers Of the
Union Passenger Railway Company" lie
insisted th.t that act was intcgded 70
rr.rle the powers Of the railway
company and not ~ the city; that
4 10 had been Intended 10 enlarge The
power. 81 the ciy rs intent was not set
f.rih iu its title. aad was therefore unconsu.
90 |ln.l aud void. Tie insisted then that u
should nos De considered as enlarging The
powers ~ thc city, but only those OF the
railway company; that ia this light should
Poe r.Id that section Of the act allowing the
company % use such motive power So the
CITY through whose streets II shauld run
would permit. lie ia-isied that the word.
"uay p.rmit' should not I've construed 10
mean "may choose TO permit but TO mean
"u.Y h1ye authority TO permit; that there
fore t di1 not enlarge the powers OF the
Council "a, 10 The motive power beyond that
specified In the charter Of the city.
For these reasons be insisted that the
Council had 10 right 10 grant the power 10
use electricity. Hence the placing OF poles
and wires in the street would be unau.hor-
Izcd distractions, and therefore Hussnces.
The Colonel then dwclt upon the facts st
forth i'm his bin, aud insisted that no benefit
to the public could be derived from the lay
my 81 the Cary-strect track, but that great
injury would be done TO a large number OF
persons. Having elaborated the above views
be Insisted that The motion TO dissolve should
Re denied.
Colonel Elicit closed at o'clock.
Mr. MEREDITH.
Citv-Attorncy &. Y. Meredith then made
the concluding argumept for the defence
lie stated that he appeared simply on behalf
of toe city 81 Richmond aud a., officers who
had been cuioiued; that he made no motion
% dissolve the injunction SO flc a. the COM
pauy was concerned; that bis argument
would. therefore. be addressed as TO how far
court OF equity could eujoiu municipal
council which the courts recognized n
miniature legislature 10 the passage OF its
local laws or 10 the exercise OF lis legislative
discretion.
Mr. Meredith cited the leading textbooks
o. show that the courts refused 10 enloiu
municipal councils Is TO the passage Of Ordi-
naucCs Tor the exercise OF legislative discre'
t0n, and confined themselves 90 enlOining
the enforcement OF ordinances o. the deing
% oyts by municipal governments. lie In
sisted that this rule OF courts Of equity not
% interfere with the exercise q discretion
LODGED I'm subordinate hOdlc, was not limit
ed To legislative bodies, but even extend
I'd 20 executive officers s. 10 mat
ters about which they were required by
law To- exercise dl.cretion; that The rule was
based upon The idea that the judge never
puts his discretion in opposition 10 the party
Iu whom 80 is LODGED ~ las.
After citing auiLOriucs in support OF these
positions 3lr. Meredith took up the question
30 90 the righ, OF the Council TO grant the
Cary-sireet franchise, and insisted that the
granting Oi the privileges Was the eX-
erci~e OF g'>laiiye discretion; that
willie the franchises would be contract
when granted. that the granting Of them
would be q legislative act similar TO the
State Legislature grautjug charters to corpo-
T4tions. lie insisted that the city had power
20 grant the franchise 20 the full exlent set
forth in the ordnance eniOlued. lie read
the section OF the charter authorizing the Guy
90 las >trcet-ralW4y tracks and tO run GOrse-
cars thereon. aud theR discussed the power
~ The Council - grant such a franchise
without regard 10 the motive power. lie
called 20 The aNtpion or Inc Oourl tnAt tue
fret ordinance granted the Union Passenger
Railway Company only granted them the
right 10 use horse power. He then insisted
that there bad been offered but three OBJ /
jeciions 10 the power % city council 10 /
grant The franchise for the laying OF a street /
railway. The first ground was the depriSa- I
ton Of the rgnt Of The general public TO the /
Use q The entire street; the second /
that Il was a monopoly, and the third, 1
tha, il was 4 new servilude upon the ease /
meni Of travel which The public had, which 1
new seryitude could not be put upon the /
street without compensation 10 the Abutting /
owner. ~ they owned The fee in the street.
IL insisted that the rights Of the public In |
the streets are IN the different States actually
the same, though some states hold in lan-
Rua2e That The easement Is in the pub
he and The Zee IN the abuttlng owners,
while others hold that the fee Is Ia the
public wi,hs possible reyerdon 10 the abut-
ting owSers should the streets be closed;