The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1893-04-21
THOSE DOUBLE TRACKS,
Arguments Heard Yesterday
Afternoon Before
JUDGE PAUL., WHO WILL DECIDE
The Case This MorninG After Argu.
ments by Judge Jacob aud Pros
eepslng Attorney Howard-The Ar
guments OF City Solicitor White
and SIr. John Palmer Yesterday,


Arguments were heard before Judge
Joseph r. PAUL in chambers yesterday
afternoon on tho motion to dissolve the
injunction granted by him Tuesday by
which the city's board OF public works
was enjoined from taking up the
switch or double tracks Of the Wheel
ing railway company on Jacob street,
below Fourty,third. Judge John ],
Jacob, president OF the Wheeling COM
pany and its counsel, assisted by AttOr'
ney John Palmer, of Wellsburg, repre-
sonted the interests OF the railway, and
Col. Robert White, city solicitor, and
Prosecuting Attorney John A, Howard
took care Of the city's interests,
Colonel White opened the argument,
and spoke for nearly an hour referring
TO many authorities in the course oil
his argument He contended that tho
two tracks dlyerge from one track $50
feet below Forty-third street and con.
tinue as separate tracks to Forty-third
where they do not converge, but branch
oil, one to Jacob and tho other to
Wood street, making them in fact aop.
arate or double tracks, which by ordi-
nance the Wheeling railway company
could not by ita franchise put down,
without consent OF Council. He showed
that the street at that point is narrow
one, leaving 7.l2 feet space between the
curb aud track, not enough space for an
ordinary vehicle to pass in safety. Even,
however, il the city had given the COM
pany permission to lay these double
tracks on Jacob street, and had after.
ward seen that they formed source
OF injury 10 the streets usefulness, the
city had the power to order them up,
and il not removed by the company,
the city's servants could do it. as was
done IN this case, The colonel claimed
the double track or switch as at pres.
ent, is not necessary for the operation
OF the road, and that a junction OF the
tracks from Jacob and Wood at the cor
nor OF jacob and Forty.third into one
track is all that ia necessary.
At this point number OF allidavits
were read by Mr.. Howard, from bust.
ness men along Jacob street. showing
the great injury done to their business
by reason OF the tracks Mr.. Charles
Schmidt, board OF public works mem.
her, testified in an affidavit that the
board had not given the company per-
mission to lay the tracks.
In rebuttal an affidavit from Judge
Jacob was presented, testifying that ut
u meeting ut which two members were
present, permission had been given, and
tie notification Of this action by the
board, from the clerk was submitted.
Colonel White was unable to SEQ the
right OF the board OF public works to
grant such privileges, which he said,
are confined only to council.
Mr.. John Palmer opened for the
Wheeling company, and made a power
full argument, LISTING over an hour,
during which many law authorities
were submitted. lie stated ut the
opening that the matter in hand did
not cover the merits OF the right the
company had to lny double tracks or
switches, but was motion TO dissolve
tho injunction. He called attention to
the city ordinance giving the Wheeling
Railway Company certain privileges,
among which is tho right to lay
cracks" on certain streets, among them
Jncob street. On the other hand, the
ordinance granting concessions to the
Citizens company says they can lay "a
track" on streets which are named, 80
that il tho Wheeling company wished
10 put down double tracks over all the
streets on which it holds the franchise,
il could do 30. He called attention TO
tho city's representatives disclaiming
responsibility for the action of the
board Of public works.
lie claimed the track or tracks in con.
troversy were not IN abatable nuisance,
as they have been completed since last
December without injuring anyone.
lie called attention to the rights of rail-
roads, and that oven II tho construc-
ton OF tracks hurt individuals, no mat
tor how much, they must bear the loss.
They, however, can recover from the
railway for damages, il they have good
case, which he didnot believe is the case
here.
He referred to the city taking the
law in its own hands, and cited from an
opinion delivered by Chief Justice Pax
ton, OF Pennsylvania, in which he dep
recates this state Of affairs, saying that
municipal corporations have been going
too far in such cases, where properly
tho courts shonld decide the matters in
controversy.
AT the conclusion OF Mr.. Palmer's ar
gument tho hearing was adjourned I'M
Ill tomorrow morning at II o'clock,
whom Judge Jacob will present features
OF the case for the company, aud Prose-
cutting Attorney Howard will reply.
NORTH WHEELING OAR SERVICE