The Savannah morning news., 1904-11-29
AGAIN ENJOINS
IN RAILWAY CASE
SAVANNAH ELECTRIC co.
RON SECOND TIME RESTRAINED
FROM LAYING TRACKS.

vo.traiuing Order Handed Down by
Iudee Emory speer, Sitting as a
Circuit JudEe-PetitiOn for In
iunctiOn Presented by j. b. Hoist
and others, as in the First Case.
claim That They Must BE cOmpen-
.oted for Damage to Property.
A second injunction has been granted
nv Judge Emory Speer restraining the
savannah Electric Company and the
civ of Savannah from erecting poles,
stringing wires, connecting tracks. or
onerating cars on Gwinnett street, be-
tween Habersham and Abercorn. The
temporary injunction was served on
General Manager Nash of the electric
company and Mayor Myers yesterday
morning. by Deputy United States
Marshal Doyle.
The petition was filed by Attorneys
/ Ferris Cam and Hon. Walter G..
Charlton on behalf of Mr.. j. B. Hoist.
and others, the ''others" including the
same petitioners who made the first
application for injunction against the
by Judge Speer and reversed by the
Circuit Court of Errors and Appeals.
The grounds set forth in the last petit
ton are similar in many respects to
those of the first, though there is just
sufficient difference to make a color
for fling another application for in
junction. The injunction was filed be-
fore Judge Speer as a circuit court
judge.
The premises of the application set
forth that the Mayor and Aldermen of
Savannah and the Savannah Electric
Company are two corporations under
the laws of the state of Georgia. In
the matter of the granting of a fran
chise to lay railway tracks on any
street of Savannah, the city acts, it is
held only as the agent of the state,
and therefore, is bound by all the laws
of the state.
Violation of Constitution.
The petitioners then quote that sec
ton of the Georgia constitution which
states that no private property shall
be taken for public purposes without
due compensate being paid the own
ers of the property. Before any ac-
ton can be taken which tends to dam
age private property, the owners must
be given notice, must be given an OPP
portunity to be heard, and the right
of appeal from the action of the mu-
nicipality is granted them. This sec
ton, it is alleged, is made stronger by
the act of Dec. IS, 1894, an act govern
ing the granting Of railway franchises
The petitioner claims that his prop
erty, at Gwinnett and Abercorn
streets, has been damaged by the ac-
ton of the city in the sum of $4,000
The damage results because the erect
ing of poles, the stringing of wires
and the laying of tracks interferes
with the ingress and egress to his
property. He is damaged further in
that when the cars begin running on
the tracks the Earring and the noise
will destroy the quiet and tranquility
of his home he alleges.
Fourteenth Anne ndment Again.
1t is also claimed that the act of the
Georgia Legislature that is used as
authority for the action of the City
Council is in violation of the fourteenth
amendment to the constitution of the
United States. Two grounds are set
forth in support of this proposition.
In the first place 1t is urged upon
the court that the petitioner is depriv
ed of his property rights without the
due process of law, an act in direct
contradiction to the federal statute.
In the second place he claims no
hearing was given him, no notice serv-
ed that Council was about to grant
the franchise, and that he was CIV
en- to understand that the entire ques-
ton had been dropped for that ses-
sion of the municipal body.
He then rehearses again the story
of the granting of the franchise, facts
with which readers of the Morning
News are familiar. The petitioner
lays particular stress upon the mid
night meeting of Council and the rush
with which the matter was put through
and the work of laying the tracks COM
menced.
Temporary Injunction Granted.
Upon the grounds set forth, as given
above the petitioner asks that a re-
straining order be granted, command
ing the electric company to refrain
from erecting poles, laying and con-
Meeting tracks. and from stringing
wires along the route in dispute. This
request Judge Speer has granted.
At the same time as the temporary
injunction was granted an order was
passed requiring the counsel for the
defendant company, and for the city,
TO appear before the court on the morn
ing of Nov. 80 and show cause why
the temporary order should not be
made permanent. AS in the previous
cases, Osborne & Lawrence and Col.
William Garrard will appear for the
defendants.