The Birmingham age-herald., 1913-02-22


ham Railway, Light and Power COM
pany this company is also lighting
company, steam heating company, etc.
Is Street Railway
1T would, therefore, appear that, as
respects its local passenger traffic, the
Birmingham, Ensley and Bessemer COM
pany comes within the foregoing defini-
tions of a street railroad. and notwith-
standing the future extension of its lines
to other cities. and the engaging by 1t
in a general interurban business, it will
doubtless continue to operate a local pas
senger service to and fro, within the city
limits so that it appears the bulk of its
business will probably continue to be
substantially that of street railroad.
However, such doubt as may exist on
this subject is augmented rather than re-
moved by the Tidewater city franchise
under which the Birmingham, Ensley and
Bessemer company is now operating. This
franchise refers to the grantee as an in
terurban or inter-cty line, such phrases
being therein used as "other modern in
ter-city railways and section of said
franchise reads as follows:
g This franchise shall not be construed
to authorize the operation of steam rail-
road nor of passenger coaches or Pull
man cars of the types now in use on
steam railroads, it being intended that
the type of passenger equipment shall be
that in general use upon lines of inter-
urban electric railways, provided that no
passenger train shall consist of more than
four cars
"And in section u it is provided that:
Within two years from the beginrin
of actual work of construction as pro-
vided for in paragraph IL hereof. cars
must be operated for revenue over the
entire line between Ensley and East Lake
being the south line through East Lake,
Avondale and thence through Fifth ave-
nue. and Graymont to Pratt City and
Ensley.'
''And in section IA it is provided that
the MAYOR is authorized to execute
contract confirming the rights granted,
upon the grantee accepting same sub
ject to terms and conditions set out.
and upon its further expressly agree
ing to construct a line for the trans
portation of passengers from Ensley on
the west, along Fifth avenue to East
Lake on the east, within the time and
iunder the conditions hereinabove set
out
As to Life of Franchise
'"rhe diffidence of the Tidewater COM
pany as to styling itself street rail-
road in it's franchise was possibly inspired
by a purpose to claim that the 80 year
grant applies to all its operations in the
city, whereas the city will at the proper
time probably want to insist that the
constitution limits this grant to 30 years,
at least in so far as it authorizes opera
tions as a street railroad, as distinguished
from that of railroads other than street
railroad
1T would, therefore. appear from the
foregoing that the Birmingham, Ensley
and Bessemer company is authorized un-
der its charter to operate as a street
railroad, and that it's present operations
in the city are, in fact. substantially
those of a street railroad; and it would
therefore seem to follow that. as to its
local passenger traffic the Birmingham,
Ensley and Bessemer company is a street
railroad company within the meaning and
intent of section 1867 of the code.
such grounds for doubt as may exist
on the subject it is, of course, within
the power of the board to remove by
granting the Birmingham. Epsley and
Bessemer. company a regular street rail-
way franchise on such terms and condi-
tons and under such regulations and
safeguards as the board may determine
and the circumstances possibly present a
favorable opportunity for negotiations
along this line.
1T should be added that section 1861
is a new statute in this state and its
sufficiency as a statute in the nature 1f
eminent domain has never been tested
in the courts, but its obvious Importance
to the public is SO great that the board
will doubtless wish to assume that 1t is
sufficiently valid and complete. Very re-
spectfully, ROMAINE BOYD,
"City Attorney.