The Savannah morning news. (Savannah, Ga.) 1900-current, 1901-03-14
The FIGHT RENEWED
s.. r. 4 w. SEEKS TO HAVE RE
WARD OF ASSESSORS SET ASIDE.
THE ACT UNCONSTITUTIONAL.
s., F. d w. SEEKS TO HAVE AWARD
OF ASSESSORS SET ASIDE.

Railway Company Asks Superior
Court 10 Vacate and Set Aside the
Condemnation Proceedings Insti-
tuted Against IL by the Postal Tel
egraph Cable COmpany-GeOrgia
Law Upon Which Proceeding Was
Based Alleged to Be Opposed to
Constitution of United states.
Plant system Seeking Physical
Connection Between Jesup ana
Jacksonville.
The Savannah, Florida and Western
Railway Company through its general
counsel. 'Messrs. Chisholm & Clay filed
in the Superior Court yesterday a motion
40 vacate and set aside the condemna-
ton proceedings instituted against it by
the Postal Telegraph-CabIe Company.
The motion filed by counsel for the de-
PENDANT in the case is a long one, and
sets out interesting conditions of law. The
telegraph company sought to condemn
portion of the railway company's
right of way between the towns
of Albany, Thomesville and VAL
dosta, for the purpose of erect
ing It's poles and stringfng its wires and
completing its telegraphid system In that
portion of the state. temporary injunc-
ton, prohibiting the further prosecution
of the condemnation proceedings. for
which the defendant applied, was re-
fused by Judge Felligant i'm the Superior
Court. Subsequently Judge FaHigant's
decision was affirmed by the Supreme
Court.
In the meantime also the assessors ap-
pointed by the parties to the condemna-
ton proceedings, with the referee appoint
ed by these two, had held an investiga-
tion and filed their report in court. It
awarded certain damages to the railway
company for the use of the projected
right of way. 1t is this award, in con-
nection with everything else that has
been done by virtue of the condemnation
proceeding, that the railway company is
now seeking to have set aside
The motion is based on the contention
that the act of 1898. under which the con-
demnation proceeding has been conducted,
is violative of the Constitution of the
United States, in that It takes the prop
erty OF the railway company without due
process of law and denies to the COM
pany the equal protection of the law
The first contention is supported by the
a.Iegation that the act provides no ma
chinery by which condemnation proceed
ings of the kind which ii affects NAV he
carried into effect; the second by the al
legations that the act attempts to pro-
vide for the condemnation of railway
rights Of way in a manner which would
not be lawful in the case of any other
property, thus depriving railway compa-
MES of the rights allowed other citizens
OF the United States
1t is contended, further. that even con-
ceding the constitutionality of the law.
the proceeding for the condemnation of
the railways right of way is defective,
invalid and void, in that it does not de-
scribe with sufficient minuteness and par
tioularity the property which the tele-
graph company desires to use, nor does
it show that the necessity for its use.
which is described in the act and made
a prerequisite to condemnation. exists.
1t Is probable that the litigation on this
subject, which it had been thought was
virtually concluded by the decision of
the Supreme Court, affirming that of
Judge Falligant. in his refusal to issue
the injunction, has been but well begun.
There is every likelihood that the Su-
prene Court of the United States will be
called upon to pass on the correctness of
the railway company's contention before
the matter is finally ended