The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1893-04-22
rho South Jacob Street Doub!s
Tsack Controversy
ARGUED B:F02: JUDGE J.R PAUL.
YESTERDAY siorsing aud Afternoon,
Judge JOHN }. Jacob sIsEes al Ia
hausiige Argument, and Is Followed
Prosecuting Attorney Howard
% Decision Probable To-day,

ing Railway on Jacob glFeog, below
Porly-lhird, South Side, was continued
yesterday morning and afternoon.
Judge Jacob spoke on behalf o. tho
railway company, and Prosecuting A.
torney Howard Tor the city,
Judge jacob commenced speaking a.
u o'clock in tho morning and eoatiuu'
Cd Ia tho afternoon. Hg read the bill
submitted in the case, showing tho sub.
Htahsiai facts as admitted ia the answer,
also tho right Of the company to lay
switches which Is admitted. Under
= the ordinances granted by tho city the
/ Wheeling Railway Company has the
right for continuous unbroken tracks
from the east oud OF tho Wheeling K
Belmont bridge, on streets, including
Wood, fdrty.third aud jacob. to
the southern limits OF tho city. In Of
feet The anawer TO the bill admits this
right. lilo said the board OF public
works had uuiaWfuiiy broken this con.
tinuous line. Under the allegations Of
the bill the effect OF this breaking OF
the line on Jacob street was 10 inter-
rupl travel between southern Wheeling
and Benwood, and break connections
between main Wheeling, whore most Of
the cars on tho road arc Ia use, and the
Forty.Oignth street barns, where tools
and all appliances for repairs are kept;
that this action OF tho board OF public
works had worked irreparablo loss to
tho railway company, and II continued
uuAUll HEauliVf lNnaH - tho
railway system, from tho fact that they
could not BIO operated without access TO
tho barns,
Tho only possible defense for the &C.
tlon Of the board OF public works and
city council in interfering with the
tho rights granted to tho company on
Jacob atrGet was the exercise OF police
power. il0 claimed that under police
I, power the city has the right 10 regulate
the operation OF the road, such az rcgu.
lating speed Of cars, and points whore
they shall stop; but in no event has
the city the right 10 exercise the police
power for the destruction OF the railway
system Of tho Wheeling company. and
that In effect the action OF tho board OF
public works would destroy the system
aud make impossible tho operation OF
the road under the rights granted by
tho franchise.
Tho Judge cited Cooley OF Conatita.
tional Limitations TO the effect that eN-
orciso OF police power would not justify
tho destruction OF tho franchise OF tho
company or tho breaking of tho fiuB
connecting South Wheeling with Bon.
wood. llo madO the point that the
action OF tho board was not authorized
by law, and further that tho answer Of
the defendant declared in effect that In.
corruption OF communication was not
wanted, and that tho resolution OF
council incorporated in the answer in
expressed terms recognizes the right OF
the Wheeling railway company to have
and maintain tracks on Jacob street.
Under such circumstances there Is not
q protoxt TO justify tho action OF tho
board OF public works in breaking the
line
Tho only possible ground for tho do.
Tense was that tho main track had been
moved over to tho east few inches
moro than II was before tho switch was
laid. While tho company was doing this
work 1t was faced by an order from the
board ordering it stopped. Tho COM
pany stopped tho work, but applied to
tho board to have tho order revoked.
Tho board not only revoked the order
bntin expressed terms gave permission
10 Tia conlfIanysso make connections
with its lines on Jacob street, the
ground having been personally gone
over by tho board.
Judge Jacob submitted tho order,
which is rs follows:
To ne PTOiidtnh ofthC Wheeling Rdi'tcdy Complny
and he Citizens Rdiliruy Company!
GENTLEMEN; order issued on December
II, lsgA by the board OF public works OF the city
Of Wheeling stopping the work Of laying down
your tracks until further orders Of tho board VI
public works, the board this day, after hearing
all tho facts In the case, has rrsCndtd said order
Of December u, laJl and permission Is hereby
granted the said companies 70 connect thClr
tracks on Forty.third street with Jacob and
Wood
ny order Of the board Of publlc works
THOMAS NJ, DARnAu,
Clerk D. T., W,
iph0!ina W Va, JamiGry2, 1895,
The permission was given after OK.
aiming the ground so there could DO
no mistake as to what ii meant. 1t was
under this order that the company
went ahead and completed the tracks
The ordinance docs not specify Ia
what part OF the stroot railway tracks
shall be laid, aud being silent as to that
point, II waa left to tho city council, or
to some other body. Tho ordinance
granting rights TO tho Wheeling com.
pany provides in substance that tracks
shall DO laid, and when taken up shall
DO rOtaid to the satisfaction Of tho board
OF public works. The permission thus
given was in the province OF the board,
as we'll be seen from tho general ordi.
nance giving rutnJ for the government
OF tho board, which state that the
board shall supervise tho laying OF
street railway tracks. Consequently
the company laid tho track as required
by law, violating no authority.
But event II wore not 80, continued
Judge Jabob, and II council had tho
power itself to determine whore tho
tracks should DO laid, and had required
them to b. laid in any particular part
OF tho street, tho board Of public works
could not violently by force tear up tho
tracks OF the company. Ho contOndcd
that the tracks being laid undor the pro.
visions OF city ordinance, werO not Il
nuisance aud could not DO abatCd byany
summary proceedings, but II tho com.
pGny failed to comply with tho lawful
actions oicouucil thoy can DO compCllCd
to do no by process OF court Therefore
on tho motion to dissolve the Injunction
tits not material whether tho company
had or had not right to lay tracks
whore II did, That question eau be- do. |
tcrmincd through proper proceedings
IN court and not by violence.
AS to tho switch or track on the west
side, IL Is claimed by the company TO hc |
aswitch which tho ordinance gayo tho |