The Savannah morning news., 1904-07-18
DECIDES AGAINST
ELECTRIC co.
IN GWINNETT STREET CASE.
PERMANENT INJUNCTION PRE-
VENTS RUNNINGS OF CARS.

Injunction Was Granted by Judge
Speer-DeCIares Action of Council
in Granting the Right to Lay
Tracks in the Method it Did, Null
and VOid-RiEhts of Property
Holders Must BE Respected-Has
Something to Say About the secret
session.
a permanent injunction has been
granted by Judge Emory Speer in the
matter of J. 3. Hoist and others
against the Savannah Electric Com
pany. The injunction restraints the
company from using the recently laid
tracks on Gwinnett street.
The decision is a lengthy one, occupy
ing twenty-one closely typewriter
pages. The decision opens with a
brief review of the circumstances sur
rounding the case, as brought out in
the evidence, all of which has been
heretofore covered in the Morning
News. In speaking of the alleged
denial of public hearing, which plain
tiffs claimed had been promised the
court says:
1T is now. as appears from the fore
going statement, alleged that such a
hearing was promised, but was unlaw-
fully and injuriously denied; that the
action of the city government is I'M
lawful and void; that no lawful grant
of power to the electric company to
appropriate the street in question has
been or can be made, that the Elec
trio company appears on the street as
an intruder, and that the present ac-
ton of the City Council and the cleo
trio company, both creatures of the
state and jointly acting under its as
sumed authority is obnoxious to that
clause of the constitution which de-
clares:
states Assumed Authority.
mo state shall make or enforce any
law which shall abridge the privileges
or immunities of citizens of the United
States, nor shall any state deprive any
person of life, liberty or property with
out due process of law, nor to deny
to any person within its jurisdiction
the equal protection of the laws"
After discussing the night of the
court" to intervene and deciding that
it has as 1.-THE rights of parties are at
stake" the decision takes up the ques-
ton as to whether or not the action
of the electric company was lawful |
or whether it was not an effort on
the part of that corporation, aided and |
abetted by Council, to obtain an I'M |
advantage with that dis |
regard of private rights on the part |
of such corporations for which it is so
frequently the duty of the courts TO |
afford redress"
About the Secret Caucus.
Then follows a discussion of the |
Council meeting, and of the secret ses- |
sion of the Committee of the Whole, |
with a review of the fact that
the Mayor, when both requests were
handed him in open session of Council, |
said received as information" In
speaking of the preliminary caucus,
Judge Speer says:
In that secret caucus the delibera-
TONS if any there were, were con-
Quoted and the conclusion reached. The |
of a proceeding which will
permanently affect the property of so
many citizens of Savannah, and their
constitutional rights, will not escape
the attention of the observant.
Mr. Osborne was first called before
the caucus, or perhaps he had the
have termed the cave of Trophonius.'
1T also will not escape attention
that Mr.. Hardee was not permitted
10 appear, while Mr.. Osborne was in
the presence of the conclave. After
Mr.. Osborne left Mr.. Hardee was sum
moned. The sententious observation
made by the Mayor, when. afterwards,
i'm the Council chamber. the briefs of
the electric companys petition and
flaa aezk, ,fras,
hearing, were presented, is also note
worthy. AS each paper was received
from the clerk of Council. the Mayor
exclaimed received as information
MIR. Hardee Was MisIed.
Since the Committee of the Whole
as appears from it's resolution in the
record, had conclusively determined
the matter, it is difficult to see what
further information the Council would
require. The remark of the Mayor.
however, could have no other effect
than to lead Mr.. Hardee to conclude
that the matter was still pending, that
information on the subject was yet
valuable to the Council and that he
and those acting with him would be
accorded the hearing which he appear
ed to ask.
In speaking of the contention that the
property holders had had a hearing
counsel referring to the hearing two
years ago-the court holds that this is
fallacious, as by the Mayors own ad-
mission, Council was not the same, nor
were the facts in the case the same.
Resolution Not Sufficient.
Judge Speer then takes up the meth
Cd used in granting permission to lazy
the tracks and says:
1T will be observed that the author
ity to the electric company to lay its
track on Gwinnett street was granted
by resolution of the Committee of the
Whole. This we have seen to be a Sc
cret session of the Council from which
the public is excluded. II, however.
appears that the resolution late at
night was approved by Council. A
certified copy of the resolution is in
evidence, and this constitutes the sole
authority upon which the electric
company is proceeding.
"A careful consideration Of the char
ter of Savannah and various provisions
OF the City Code. is convincing that
the powers TO farm out or donate the
streets for railway purposes as herein
sought TO be done. cannot be exercised
by resolution. 1t is well settled that
the powers granted municipal corpor-
alton, particularly where they AFFECT
private rights, must be strictly con-
strued. and the method marked out by
law for giving effect to such powers
must be as strictly followed"
Ordinance Ia Necessary.
The court then reviews the charter
of the city. He declares that the ac-
ton Of Council in the case in question