The Birmingham age-herald., 1917-09-07
CITY RESERvEDITS RIGHT ID DECLARE
 T|DEWATER VOID
Dr. Dickinson Again Points Out the City's Duty in in Handling the
 Situation
To the Edition of The Age-Herald:

To the Editor of The Age-Herald
 There is much throwing of dust into the air to obscure a very simple matter in the report of the meeting of the com- mission for discussing the duty of the city to formally declare the Tidewater franchise void.
 The simple facts and implications are these: The city in granting that fran chise reserved the right to declare 1t void in the event it ever in any way was ac quired by a competing company. The city meant something by this provision. That franchise is now acquired by the Birmingham Railway, Light and Power company, a competitor, through recent litigation, and thereby the situation which was necessary to give the city the right to declare that franchise void has come
 Shall the city now exercise that right and get the benefit of what it contem- plated in that article of the franchise; or shall it let that benefit go by default? The city laid a predicate for exercising this right when it protested against this conveyance; but it did not thereby sur render that right.
 MATTER OF PROCEDURE
 As matter of procedure it has not hitherto been possible to adjudicate this right for several very patent reasons. First, no court of competent jurisdl ction to declare forfeiture has by either the city or other litigants been invoked in the cause; Gnce neither the United States io iccio nor the supreme court has original juris- diction in such a cause.
 Secondly, the right has not existed in fact until the litigation in the United States court turned over the property to the competing company, and right not yet in existence is not justifiable in any court. But now that the competing com pany has acquired the property, and that over the citys protest situation is ef- fected for the coming on of this right to the city, and warrant for it's use, If the city so chooses.
 Thirdly, in all the procedures hitherto held as between stockholders and bond holders the courts upon every appeal have decided that their decrees were always subject to the rights of the city, which rights should not be affected thereby. and for this reason the city, upon this assurance, did not come into the case, though invited by parties to the suit, until the proposal to deliver the property to with reference to its right to void this franchise has never been presented to either of these courts, but stands in all it's original integrity without prejudice in their decisions. This Is expressly de- clared in the decision of the supreme court, and I am informed was promised by the judge in the other court So the right of the city to what is contained in that section of the franchise exists, and the only question now to be decided is whether the city will exercise that right and get the benefit or let it go by in de- fault.
 ASSET WORTH NOTHING
 It may be added that the court treated that franchise on every occasion as an asset which was worth nothing, not giv- ing it any value in the inventory of the assets of the Birmingham, Ensley and Bessemer railroad, which course can be explained only on the theory that the court regarded it as practically voided by the litigation. When one of the stock holders, who was also a bondholder, sought to intervene against receivership on the ground that the Birmingham, Ems ley and Bessemer had not been shown to be insolvent, he was told, in answer to his argument that such litigation would probably issue in voiding this franchise, that the stockholders of the Birmingham, Ensley and Bessemer had the right to surrender this franchise if they so chose, and he as a minority holder could not estop them. That the city has the right to declare this franchise void, as is pro vided therein, has everywhere been rec ognized in this litigation, and the ques- tion now is will 1t exercise that right or let it go by in default. If the city proposes to give this franchise to the Birmingham Railway, Light and Power company, why not do it outright at once; so that they can use it for their immediate benefit, and not require them to wait until time shall do for them what the city can do within week? If we have no rights in who have This would seem to be equity. A clouded title to any right never yet helped anybody. Let the city exercise it's right, and let the causes of the par ties be adjudicated in a court of proper original Jurisdiction, and 1t will be best for all parties concerned.
 A. J. DICKINSON.
 Birmingham. September 6. 1917.