Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1893-04-21
TO Be RESBNED Today
THs ARGUMENTS IN ggg STREET RAILWAY
INJUNCTION CASE
Only Partly Heard BY Judge Paul, Yesterday Al
srhoon-Spssch BY City Solicitor WAiis and
Replied to BY John Palmer for the Un-
pany-Msssrs Howard and Jacob
h 10 Talk This Morning


Iompanv are making a hard fight on
he motion 10 dissolve the temporary
Injunction granted by Judge Paul. on
Tuesday Lass.
Yesterday there were three solid
bours Of argument, and this morning at
ten o'clock the discussion Of the ques-
tions involved will be resumed by Judge
Jacob. for the Company, and ne Will De
replied TO by Mr.. John A. Howard
counsel for the citizens Of lower Jacob
street
Yesterday afternoon the argument
v Was opened by Col. White for the city
Co. White commenced soon after two
,eloek and spoke for about an hour and
Mali. presenting In strong manner
q elty's side Of the case. In the course
his speech he dlsSected the bill OF
Company, in which the temporary
upction was prayed for, alleging that
,as faulty In several particulars, nota-
an that IL did not show that the
IN or double track complained OF
q property owners aud the city
Necessary for the transaction OF Tue
,ess Of the Railway Company lie
the bin ought 20 show plainly upon
ce. not only that il was switch.
at 10 was a necessary SWltch, Ou'
In state of facts was set forth,
on the other hand, the answer OF
INV denied that il was a switch or
was, that IL was not necessary Tor
carving on Of the business OF the
hpauy.
Iol White submitted a map OF the
Beality. pointed out the former railroad
hines. the present lines complained Oh
md the lines proposed by the city as
solution Of the problem, ana theh
dwelt for some time upon the oostFuc'
tlon to traffic aud travel and the annoy
aDce and loss TO property owners causeu
bv the operation OF the ears over Tue
tracks as they az present exist. De
then Welded TO Mr.. Howard, who read
the af8davit Of Assistant City Engineer
A r, White. who made the measure
hents of the streets for tho map, aud
ihe affidavit of Charles schmidt
u the Board Of Public WORKS,
10 the effect that the Board
had never given the Company permits
sion 10 lay down its tracks as they To-
dav exist. but that the curve at the
southeast corner Of Forty-third and
Jacob streets was allowed 20 be put no
upon a verbal understanding with FreS-
ident j. j. Jacob that the whole mat
ter would be- submitted TO Council. Mr..
Howard also read the amdayits OF
Louis BishoG, Henry Brlnkmahn'
Joseph Hydinger and John NenLel' set
ting forth the obstruction 10 the tnor-
ougbfare and the damages they had
oF "a
way Company, then read his affidavit, Ia
contradiction 10 that OF Mr.. Schmidt,
deEyiug the statements therein maue.
Col. White then resumed his argu-
ment. making the point, among others,
that even ~ the Board OF Public Works,
or the members thereof, had entered
into an agreement with the Railway
Company, they could not thereby olnd
the city Of Wheeling, because the Board
had no power 90 make any such agree
ment or give any use OF the streets over
10 Railroad Company. The Board
only had such powers as was delegated
70 them by the Legislature or by Coun-
ell. and was chiefly concerned with the
care, repair and Improvement OF the
streets. The Company, be held was
closely restricted in its rights upon the
streets, aud could take nothing for
granted which was not expressly set
forth in the ordinance granting the
franchise. Col. White cited numerous
authorities as he progressed, and closed
by asking that the Injunction De oIS-
solved.
just before four o'clock Mr.. John
Palmer began his reply 10 Colonel
White. At the outset he called the at
tention Of the Court 70 the fact that the
7'1Areal question before IL was simply to
prevent the city from interfering with
he COmpany's tracks. 10 was not
Question, at present, as 20 whether the
track was a switch or not, and discus
slon upon that matter was not % the
point. The point was that the city had
torn I'D about $50 feet of both main and
side track, aud had thereby interfered
with the transaction Of the business Of
the Company. lie then Said:-
Right here 1 desire 70 point ont that
the Railway Company has the right 70
put tracks upon the street. Not
track, but tracks 10 said track 10
the ordinance Of the Citizens Railway
Company, but In the Wheeling Railway
Company's ordinance 70 said tracks,
and under Il the Company could have
nut down two tracks all the way down
Jacob street. IL, therefore, don't mat
ter whether the track in dispute is a
switch or main line. Another thing.
The Company changed It's tracks open
v, In broad daylight, and everybody
lew Il. The members OF Council under
Doa what was going on-COuncil itself
lst have known that this Company
5 improving aud reaying its tracks
over town, and at this point as well
hers, yet no objection was made. 10
S all left 70 the discretion Of the
npany. The trouble came not from
ncn, which knew all about il, but
h outside parties. The position OF
city, now, In this matter is a little
suliar. II wants TO discredit the &C
ms OF its agents, the Board Of Public
orks. In the first place they claim
lat there was no notification by the
Board, and secondly they Try 10 get
away from themselves, so TO speak, by
claiming that even il there a nOtifcs-
ton given 10 was nitro CirOS. Well, an
infant can plead its infancy, aud babe
can plead babyhoOd, but il does not look
we'll in q City Council to plead ultrO
pirdS In a case like this
Mr. Palmer then went on 10 take up
some OF the arguments OF Col. White as
TO the Inconvenience Of the tracks, be
claiming thew were q nuisance, and