The Montgomery advertiser., 1907-09-29
NO EQUITY IN BILL
 FILED BY THE STATE
Legislature Had Authority to Give
 Grant to L. and N.
Judge of City Court Devotes Most of His Opinion to. Discussion of States Right, Passing Over
 Ordinance of city
 Council of Mont somery.

The Louisville and Nashville Rail- road Company cannot be compelled to remove the freight depot from the foot of Lee Street, according to de- crees and opinion rendered yesterday by Judge Sayre of the City Court in Equity.
 Judge Sayre found that there was no equity in the bill filed by the State Of Alabama for the removal of the freight house from across Lee Street and he accordingly directed that the bill be dismissed.
 The proceedings. seeking to declare the freight house a nuisance. was filed in the name of the State of Alabama by the Attorney General against the Mobile and Montgomery Railway Com pany and the Louisville and Nashville Railway Company.
 The chief points raised by the conn plainant, and the questions on which Judge Sayre bases his opinion. was the validity of an ordinance of the City Council granting the railroad com pany the right to erect it's freight de- pot across the foot of Lee Street and the subsequent confirmation by the Legislature of the grant made by the Council.
 Arguments on the demurrers to the bill and a motion to dismiss the Dill
  Judge Sayre several days ago and his decree yesterday, supplemented by an exhaustive opinion iss the result of the hearing. The decree means a conn plete victory for the railroad com pany.
 It is presumed that the case will be appealed to the Supreme Court. History of the Depot.
 The full text of the opinion of Judge Eavre. Ia as follows: @State of Alabama vs. Mobile and
 Montgomery Rwy. co. ct. ai.--City
 Court of Monegpmery. in Equity.
 June 20, 1896; the City Council of Montgomery In consideration or the pndertakinx by the defendant com paries to build freight and passenger depots which were to cover that part nf Lee Street to be vacated, and other valuable considerations. moving to the people of Montgomery, ordained a con tract with the Mobile and Montgomery Railway Company and It's lessee. the IouisvilIe and Nashville Company. by which it agreed that Lee Street should terminate at the point where 1t then sntersected the property of the com panies, and that the part Of the street then extending beyond the line or In . tersection should be discontinued ana abolished as street or any part thereof.
  sennbly of Alabama passed an act en- titled an act to ratify and confirm all grants. rights, privileges and fran ohises heretofore granted or attempt ed to be granted to railroads by the City Council of Montgomery. The body of the act was in the following words:
 ".Be 1t enacted by the General As- senbIy of Alabama That all grants. rights, privileges and franchises which the City Council of Montgomery has heretofore granted or attempted 10 grant to any railroad company, and which have been accepted and utilized for railroad purposes. be and the same are hereby legalized. ratified and con firmed.'
 Before that the freight depot across Lee Street had been erected.
 s"The bill in this cause is filed to have the court declare the freight de- pot nuisance and to have the same abated.
 "It has not been seriously urged that the court has anything to do with the wisdom or policy of these enactments. The only question is one of power. In order that counsel may be apprised Of the sounds upon which the ruling procee3s. I state them briefly
 ''To begin, 1t may be conceded that the City Council of Montgomery was without power to enter Into the OTu1- nance-contract to v0cate a part Of Lee Street because no such authority is to be found in its charter. But this concession is only a preliminary to a question upon which the whole case de- pends. viz: the constitutionality of the statute of December 10. 190o0-
 f"In the case of Mobile and Mont somerv Railway Company vs. Alabama Midland Railway Company 116 Ala. 51, the Supreme Court of Alabama said:
 ' Tt seems to be well settled that the Legislature has the power, general ly, to vacate a street in city, and may delegate this power to the munici- pal authorities, Elliott on Roads and Streets, 661. 668.'
 Four Points Involved.
 But now specific constitutional ob- jections are taken to the statute in question as follows: CD The subject of the law Is not clearly expressed in the title; CD The act constitutes an irrevocable grant of special privileges; @ The act offends against that section of the Constitution which provides that The General Assembly shall not have power to authorize any municipal cor poration to pass any laws inconsistent with the general laws of the State ; (H The statute was ineffective as curative statute because the ordinance was void.
 "In respect to the objection first taken. 1t might be enough for court of first instance to say that the Su- preme Court of Alabama has been called upon more than an hundred times to interpret Sectio n2 of Article of the Constitution containing the provision in question, but counsel have been unable to refer to a case sustain ing the States contention.
 "The argument proceeds on the idea that the title of the act did not ap- prise the Legislature or the people of the purpose to vacate Lee street. To apprise people and Legislature of the subjects of Legislation which are being considered is one purpose of the con- stitutional provision. Nevertheless. it hna heen held from the heRinninn that