The Birmingham age-herald., 1910-11-26
ND ACTION YET IN
 TIDENATER MATTER
Mayor Silent Pending His Of
 ficial Action
SIMS MAKES ARGUMENT
Fifth Avenue Property Owner Presents Mayor His Reasons for oppOs- ing the Franchise In Its
 Present Form

Mayor Culpepper Exum is still consid- ering the Tidewater franchise. and when approached yesterday refused to make any statement concerning his action in the matter. While 1t is generally believed that he will veto the franchise, he will not express his reasons "Any quotation of my position or opinion on the Tidewater franchise is unauthorized and unofficial, was all he would say.
 A canvass of the board develops the fact that should the franchise be vetoed, it would have to appear in a changed form to pass again.
 Among the interesting arguments which have been made against the franchise is that of Henry Epson Sims, which is in the form of a letter to the Mayor. He writes:
 November "A, 1910. Honorable Culpepper Exum, Mayor Of the
 City of Birmingham.
 Dear Sir: Since calling upon you on last Saturday with others owning property on Fifth avenue 1 have had an oppor- tunity to examine the proposed franchise to the Tidewater Railroad company, pub lished at your instance. And as you in- vited further discussion from any of those who called upon you, I take occasion to cffer you some suggestions which have come to me on studying the franchise now awaiting your approval or veto.
 Tn the first place, the impression has been made that the Tidewater company contemplates a new street car line along Fifth avenue, and it seems to have been with this service in view that so many property owners desired that franchise be granted the company when they first applied for It. And if the Tidewater company were getting a simple street car franchise there would be much less op- fO yr1 a right of way through the Fifth avenue subway But upon reading and studying the franchise published by order of your honor, I find absolutely nothing to war rant their railroad being called a street railway; nor any provision which limits their rights along Fifth avenue to street car traffic. The franchise is for rail road and lasts forever.
 'There Is a blind thrown into the fran chise by section 10 (a) providing that the rights in perpetuity granted by this frt<t- chise are for their use as general rall- road. and that the grantees right and franchise to use the streets, avenues ana alleys herein designated for merely street railway purposes shall be and are hereby fixed and limited at and for the period or 30 years tNom the grant hereof, in ac- cordance with the constitution of the state of Alabama. But 1t Is clear to any lawyer that this clause was added for the
  der to prevent the courts by any possi- hility holding the franchise to be street car franchise and therefore void after 50 years. Not a single right among the enormous benefits given away to them is limited to 30 years enjoyment; for on the contrary, every rlght IS expressly made perpetual.
 Now, I am prepared beyond most of my fellow property owners to scrutinlze this franchise, because some six years ago I conducted for clients an uphill lit!- gation against the Birmingham Belt Rail road company, trying to stop their. en- croachments upon the originally intended user of Avenue E. And by a singular coincidence MT. Forney Johnston, who says he largely prepared this TideWater franchise, was one of the lawyers op- posed to me in that Belt railroad litiga- tfon.
 'The result of that suit was that the supreme court reversing decree of the chancery court in my favor, held that our objection to the making of Avenue D mere freight railroad yard came too late, because thN original franchise to the rail road authorized them to move freight cars as well as passenger, and so they were authorized to cease carrying pas sengers and to increase the length and number of freight trains as much as they pleased.
 Therefore, we, property owners along Fifth avenue, are forced to take care or ourselves now, for everything doubtful or dangerous in the Tidewater franchise may be made the predicate for all sorts Of users later on.
 ''I wish your honor had time to go over with me the various ordinances, con- tracts. charters, and special permits by which the Belt railroad from an innocent beginning spread itself out on Avenue D to it's present luxuriant growth of freight traffic It is all in the court rec ord in that case of Lockwood vs. Bir- mingham Belt Railroad company in the ohancery court, and 1t would be instruc- tive reading to anyone of the property owners advocating this franchise to the Underwater company, as 1t appears in print.
 "Of course, I don't mean to say that the Underwater franchise authorizes the use of freight cars on Fifth avenue just as on Avenue F; but it does authorize the passage and repassage of long trains of passenger cars, and baggage cars, and express cars, drawn by electric locomo- tives, without requiring them to stop al the corners, or to limit their speed any more than passenger trains of the South ern or Frisco, or other railroads limit their speed upon the streets by which they enter the city Respectfully, HENRY UPSON SIMS"