The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1899-08-15

Testimony is Invalid.
In the equity case of Charles j.
Koogh and others, taxpayers Of Old
Forge borough against the Pittston &
Scranton railway company an opinion
was handed down yesterday by Judge
+. w. Gunster continuing the prelimin-
any injunction heretofore granted.
Judge Gunster is Of the opinion that
the franchise to construct the road was
obtained by bribery. His opinion is
as follows:
The plaintiffs are residents and prop
erty owners of the borough of old
Forge, i'm this county The defendant
is corporation purporting to have
been Incorporated under the Act of 1889
Articles of association were submitted
to the governor Of the commonwealth
Oh the 7th of November, 1898. and let
ters patent were thereupon directed by
him to be issued and uDon the same
date letters patent were issued. The
articles of association were duly re-
corded in this county on the 18th of
May. 1899 in charter book No. ). page
76. etc.
The streets and highways upon which
the railway proposed to be constructed
scribed in the articles of association as
follows. viz: Beginning on the main
road leading from Rendham to Pitts
ton i'm Old Forge township, LaCka-
wanna county. running thence south
erly along said public road to a point
on said road within about 600 feet from
the railroad tracks Of the Lackawanna
and Bloomsbury railroad; thence along
the street at this point to its inter-
section with the said road leading to
PittSton, and to point 'On said road
on the dividing line between the town
ship of Old Forge i'm Lackawanna
county and the township Of Marcy in
Luzerne county, together with loop
or circuit from the point above men
! toned where the road branches off
from the main road running along said
| public highway towards Pittston until
| il again intersects with the line above
set forth on said public highway.
RESOLUTION ADOPTED.
! In June. 1899. the council of the bor-
| ough of Old Forge by an ordinance en-
| titled AN ordinance authorizing the
! construction and operation of a street
| railway in the borough of Old Forge
! by the Pittston and Scranton Street
| Railway company" undertook to grant
! the consent of the borough of Old Forge
! to said company to lay tracks with the
necessary switches and turnouts, and
| to erect the necessary poles and wires,
and operate it's road by electric power.
The burgess by veto dated June II,
! 1899, vetoed the ordinance. but the
/ council, by a vote of five in favor there
! of. passed the ordinance over the veto.
, Sometime after the passage of the or
dinance the defendant company con-
! tracted with the Scranton Railway
| company to construct the street rail-
! way over the line mentioned in the
| resolution and ordinance, for the de-
fendant company and the Scranton
Railway company began to do the work
when the present bill was filed and the
preliminary Injunction granted.
The plaintiffs pray not only for an
Injunction against the construction Of
the said railroad but they also pray
that the charter of the street railway
company be declared Illegal and void
and that the ordinance passed in their
behalf be also declared illegal and void
together with further relief.
The bill not only seeks to attack the
incorporation of the borough Of Old
Forge. and in that way to destroy the
effect of the ordinance mentioned, but
il further charges that the action of
the councilmen i'm passing the ordi-
nance over the veto of the burgess was
improvident and against the interests
| of the municipality, and of great ana
/ plaintiffs: that the said ordinance was
! fraudulently and cOrruptly procured tn
b. passed by said street railway conf
| pany and its agents, and that prior to
the passage of said ordinance by said
counclmen. divers gifts and bribes
| were offered, promised and given to
them, by said street railway company
and their agents, to procure. the pass
age of said ordinance. and that said
ordinance was drawn up and prepared
by said company and its agents; that
the said street railway company has
no lawful charter to build, operate
maintain and control a street railway
along the above named streets; and
that the ordinance under which it is
proposed to construct said street rail.
, way is illegal and void in it's proViS'
ions because a portion of the route by
which it is proposed to make a loop in
said line is not on a public highway
but is across private property ant
fields for nearly one-quarter of a mile
and also crosses public highway.
VESTED IN AUTHORITIES.
| ! do not consider it necessary at pres
, ent to discuss in detail all the ohjec
tions made to the construction Of tn,
road | declined To hear evidence as Il
the wisdom or improvidence of tn,
councilmen in passing the ordinance il
! question, as in my opinion that mattel
: is entirely vested i'm the borough au
thOrities and not in the court. The oh
, : iectiOns made to the incorporation o
! the defendant company do not appea
to be we'll founded. and plaintiffs ar,
i'm no position to attack the validity o
, their charter i'm this case. As to tn
l objection that a part of the route vii
. be over private property it is Sutiicien
y To say that passenger railways unde
the Act of 1889 may diVerge for a shOr
distance where the conformation of IN
:, surface or the position of streams max
ii necessary in order To avoid disCOm
fort or danger to the travelling public
, and II may be added, to avoid grad
= crossings or for any other Teasol
Z amounting to necessity or what is tn
same thing in such matters, great pub
lie convenience The occasion of sue
divergence and it's extent are ques
!, tions of location and the decision q
u them primarily Is i'm the discretion q
u the railroad company. If the Varianc
from the charter route is greater tha
: is necessary. or the charter route itsel
y is open to objection, the commonwealth
. alone can be heard to make it i'm tn
interest of the general public" Rah
| Township VS.. Railway Co, l67 Pa
and 80; Pennsylvania Railroad Co. W
Street Railway Co, 176 Pa. $50 and 81
As already stated, the divergenc
over private property in the presen
case is for the purpose of avoiding
v dangerous grade crossing, and the dc
> fendant company have secured tn
right to cross the private property fror
the owner thereof
The charge of bribery and corruptiO
presents more serious question. Th
:. testimony uncontradicted and uneS
= planned leaves no room for doubt this
q an attempt was made on behalf OF III