The Detroit times. [volume] (Detroit, Mich.) 1903-1920, 1912-11-08
ID. u. r. FIGHTS CUSTER
DECREE IN F0RT-ST. CASE
lCoalInued from Page Onel

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city officials. that the ID. L. II. could
later iring pressure to bear on the
council and the dispute could be
dragged along.
! The brief proceeds IS follows: III
the resolution passed by the counc,!
bas any effect upoN the court, ID
should have an effect precisely OPP
posite that which is sought TO be Civ.
en- il. Think OF a council asking the
court 10 make a decree requiring /,
10 act and TO act within a definite anG
! fixed time, in manner over which
| IL has unlimited control. The couI
should decline this request because
by so doing il will say TO the council:
III is not for us but for you 10 de
!termine the time in which you VIII
act
II the draft prepared by the com
plainant's counsel is signed and the
common COUNSEL takes No action what
ever. then the operation OF cars vii.
ieease and the tracks will be removed
hoo because the common council ever
fixed time for the cessation OF OPP
erations OF the removal OF tracks.
but because this court, AT the request
of said council, fixed the time. In
other words, street car operations ~
Detroit will be controlled by this
court because the common council o.
the city OF Detroit requested the court
10 perform, duties which II. and il
alone, mad authority 10 perform.
The last paragraph Would indicate
that the company does not consider
the court has authority TO enter a
decree as proposed by the city and
| subsequent statements in the BRIEF
would indicate that the company
would seek redress in the federal
courts on the ground that II was be-
ing deprived OF its property without
due process OF law. Referring to the
time limit fixed by the city, the brief
says:
The court, then. is called upon. in
fixing this time. to determine wheth-
er 1t will be governed by the estimate
made by Mr.. Bancroft or that made
by the defendants witnesses. We
respectfully submit that no credit
should be given TO Mr.. Barcroft's esti-
mate. II does not appear from his
own AFFIDAVIT that he ever had any eX-
perience in constructing or maintain
ing street railways, and IL appears
from his own testimony set forth in
our reply affidavit that he has had no
such experience.
1T would be a proceeding open 10
the gravest objection for the court 10
undertake at this time, with no fur
ther knowledge on the subject than
such as IL has judicially or such as is
disclosed TO II by ex-parte affidavits
TO irreyocably fix the time within
which the removal must be affected.
When the court is engaged In such an
undertaking. the party whose rights
are affected should be given the OPP
portunity that is ordinarily given 10
those against whom a judgment is
sought. He should have the oppor
tunity OF producing witnesses and
presenting their oral testimony and
he should also have the opportunity
of cross-examining the witnesses who
testify against him. Such an issue
cannot be tried Upon afIidaTits
An attempt TO so try that issue
would be a departure from proper
judicial procedure and one against
whom Judgment was rendered by
such a trial might with entire pro-
priety complain that he had been de-
pTlFeu Ol LIS pIOpcINy NltnOut uuC
process of law. contrary TO the four
teenth amendment of the constitu-
tional OF the United States"
A number OF affidavits are then
present. One is by General Manager
Brooks tells what hardships would
befall the users OF the Fort-st. line II
the service We're discontinued. He-
also says that il would require 166
days TO remove the tracks, whereas
the city would give the company but
30. The brief also states that the
streets are so narrow in some places
that other traffic would have TO cease
while the tracks were being removed.
A reply AFFIDAVIT is also submitted
from Robert B. Rifienberick, the com
pany's engineer stating that in his
judgment Engineer Carcroft. who as
sisted the city in the case, is not com
petent to judge either OF the cost OF
street railway WORK or the cost OF re-