The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-05-27
Final Decisions Filed
Yesterday.
POLICE COURT UPHELD
AsheviIle "Shade Tree Case Decided
Against the City---Ioues vs.. Ware
house Again Goes For Plaintiff
Digests of Other 0pin-
ions.

The Supreme Court, having cleared
the docket, yesterday filed a half
dozen final decisions and adjourned
Two cases of interest were deter
mined. both of these from Asheville,
the one denying the right of a city
to delegate authority to an electric
light company to destroy trees for the
purpose of stringing wires on streets
condemned to the use of the city as
against the protest of the abuttlng
owner, and the other, involving the
validity of the police Justices court
of that city as determined by the
Legislature, the court holding the
court to be constitutional
Digests are as follows:
Il. c.. Brown VS.. ASheville Electric
Light Company ct al, appellants. j. c.
Martin and F.. A. Sondley, for appel
liant; Frank Carter and H. c. ChedSter,
for appellee.
Connor, j. The defendant electric
light company, with the permission of
the superintendent of streets OF the
city of Asheville, according to the
finding of the jury, cut down the shade
tree of plaintiff in front of his resi-
dence for the purpose of facilitating
the stringing of electric light wires.
The court charged the jury that the
city which contended that it had the
right to authorize the removal of the
tree through condemnation proceed
ings, did not have the right to so per-
NIT its destruction or to remove it ex-
cept for the purposes which the street
itself was condemned. 1t was found
by the jury that the tree was on the
edge of the sidewalk, gave shade to the
residence of the plaintiff, and was not
nuisance to pedestrians. There was
an amendment TO the charter of the
city. passed by the legislature subse-
quently to the condemnation of the
land for the street, giving the city
power to grant franchises for the erec-
ton of electric light wires and poles
on the sidewalks.
Held; That such amendment in no
wise affected the rights of abutting
owners, since the legislature had no
power to grant authority to proceed
i'm prejudice of such rights, but such
act simply empowered the city to grant
a franchise for such purposes over the
streets of the city, subject to the rights
of private parties. The legislature had
no right to give a corporation power
10 take private property without COM
pensation. nor could it authorize the
city to do so.
Conceding to the city of Asheville
the largest possible powers in respect
to the opening of streets and their
control, they must all be construed and
exercised within the we'll defined limi-
tation that they are held and are to
be used as a public trust for the bene-
fit of the citizens of Asheville and not
for the convenience or even the neces-
sity of private persons or corporations.
While the power of a municipality
i'm opening. widening, using and con-
trolling public streets is not subject to
the courts when exercised for the pur-
pose for which it is granted and in
good faith, the abutting owner has the
right to recover for injury to property
on such street from one who has no
authority from the city, this meaning
lawful authority.
State VS.. Mark Lyle, appellant. M.
w. Brown and, Attorney General for
the State:- Frank Carter for defend
ant. appellant. Clark. C. j.
An Act of the Legislature, session
1905, created a Police Court for the
City of Asheville prescribing 'all the
Jurisdiction and powers in all crimi-
nal offences ACQUIRING within the cor
porate limits of the City of Ashe-
vile, which are now or may hereafter
be given Justices of the Peace" and
Also exclusive original jurisdiction
To hear and determine all offences and
misdemeanors consisting of a viola
ton of an ordinance of said city"
Original jurisdiction was also given
over all other crimes occurring with
i'm said city under the grade of felony
and declared to be petty misdemean-
ors and the right OF appeal given to
Buncombe Superior court. The de-
PENDANT was indicted in the Superior
court retailing whiskey and pleaded
former conviction in the police court
for retailing in violation of a town
ordinance.
Held, That, while it does not APP
pear that it was the same sale even
in that event the plea was invalid as
il has been held that while a town
ordinance cannot make punishable an
offense made punishable by the State
law yet when a tax or a. license is re-
qured by tire State. and another tax
or license by the town selling the
same glass of liquor may be violation
of the town ordinance and of the
State law, and also punishable by the
Federal Government and, in case pur-
chaser is a minor or the sale is on
Sunday, a fourth and fifth offense
might be created.
When one statute requires proof of
an additional fact which the other
does not, dn acquittal or conviction
under either statute does not exempt
the defendant from prosecution un-
der the other.
A statute will never be held I'M
constitutional if there is a reasonable
doubt.
There is nothing in Article 4, Sec
ton IA of the Constitution governing
the establishment of courts to prevent
the Legislature at will reducing the
grade of offenses and the right of q
jury trial. is met by the right CT APP
peal given in all cases coming before
the Justices Court. as is the right to
a grand jury by the reduction of the
grade of offenses to petty misdemean-
ors.
w. r. Ammons, Appellant. VS..
Southern Railway Company, A. J..
Franklin and f. j. Fisher. for plain
tiff; Moore and Rollins and A. B. An
drews Jr.. for defendant. Walker, j.
The plaintiff went to the ticket Of
flee of the defendant and offered to
purchase a ticket to a station the price
of which was forty cents. The agent
stated that he was out of the tickets
to the point desired, and told plaintiff
to get on the train and that he would
see conductor and arrange that he