Imágenes de páginas
PDF
EPUB

ballot, it may be that you will not view the evidence alike; that its effect upon the minds of a portion of you may be weaker or stronger than upon the minds of the remainder. In that event, I would say to those of you who may find yourselves in the minority you should not too hastily conclude that your brethren are wrong, and you alone right. If you of the minority are for conviction, you should ask yourselves, "Is the evidence of guilt which fails to convince a majority of my brethren of the guilt of the accused beyond a reasonable doubt in truth so strong as I thought it was?" If you are for acquittal, you should inquire of your own heart and mind, "Is the doubt in my mind, and which fails to appeal to the reason of my brethren, indeed a reasonable doubt, or is it founded upon some prejudice, or induced by a desire of avoiding the responsibility of decision?" Ask yourselves these questions, talk the matter over with your brethren, with a view of arriving at a true and just conclusion, and you will be in a fitting frame of mind to reach it.

A word as to the form of your verdict: If you should find the defendant not guilty upon all the charges against him, you will return a general verdict to that effect. If you should find him not guilty upon all of the counts for embezzlement, but guilty upon one or more counts for abstraction and willful misapplication, your verdict should be, "We, the jury, find the defendant not guilty of embezzlement, as charged in the within indictment, but we do find him guilty of abstraction and willful misapplication, as therein charged." If you should find that he is guilty upon one or more of the counts for each of the offenses of embezzlement, abstraction, and willful misapplication, you may find a general verdict of guilty. I now dismiss you to your room with a solemn adjuration to do your duty as you see it, without prejudice, without favor, and without fear.

HOLST et al. v. SAVANNAH ELECTRIC CO. et al.
(Circuit Court, S. D. Georgia, E. D. July 16, 1904.)
OF COUNCIL-GRANTING

OF STREET

1. MUNICIPAL CORPORATIONS-POWERS FRANCHISE BY RESOLUTION. The mayor and council of the city of Savannah, Ga., are authorized by the city's charter (MacDonell's Code, p. 12, § 32) to make, ordain, and establish "by-laws, ordinances, rules and regulations," but nowhere, in terms, to legislate by resolution; and in view of cognate provisions requiring the improvement of streets, regulating the speed of street cars, etc., to be by ordinance, and of section 44, which provides that the city may either build street railways, "or let or farm the privilege to individuals or companies under the conditions and at such rates of fare and other charges as the city council of said city may by ordinance determine," the mayor and council have no power to grant a franchise to a street railroad company to occupy a street with its tracks by a resolution. and such a resolution passed without notice to owners of property on the street affected, and without prior publication as required by the charter in case of ordinances, is void and confers on the company no right or authority.

2. CONSTITUTIONAL LAW-TAKING PROPERTY WITHOUT COMPENSATION.

The owners of property fronting on a street may maintain a suit in equity in a federal court against the city and a street railroad company,

both of which are corporations of the state, to enjoin the laying of tracks in the street under a void enactment by the city council purporting to authorize such act, where irreparable injury will result to their property, as a taking of property under color of authority from the state without due process of law.

3. EQUITY JURISDICTION-PREVENTING MULTIPLICITY

REMEDY AT LAW.

OF SUITS-ADEQUATE

Such suit is within the jurisdiction of equity, where the complainants are numerous, on the ground that it will prevent a multiplicity of actions, and for the further reason that there is no adequate remedy at law. 4. INJUNCTION-USE OF STREET-STREET RAILWAY.

For a municipal corporation, over the protest of every abutting lot owner on a residence street, to refuse them a hearing, and grant in secret caucus to a street railway the right to appropriate said street for its track, to be used to shunt all the empty cars in use in the city into the car barns at midnight and to distribute them at dawn, thus destroying the quiet, repose, and comfort of many homes, when the railway has a parallel track one block away, long used, and ample for such purpose, is unnecessary, unreasonable, and oppressive municipal action, and should be enjoined by a court of equity having jurisdiction.

In Equity. On motion for preliminary injunction.

The complainants before the court are J. B. Holst, A. J. Ives, Lena Anderson Myers, J. J. Cummings, R. P. Lovell, Mary Ganahl Stovall, Henrietta Seabrook, Sarah O. Adams, all of whom are citizens of the county of Chatham. state of Georgia, and Emma L. Carrington, who is a citizen of New York, and resident on Long Island. The respondents are the mayor and aldermen of the city of Savannah and the Savannah Electric Company. The bill is brought in behalf of the complainants and other property owners whose interests are also affected. These, with the complainants, are 42 in number, and include, without exception, every owner of a lot abutting on that portion of the street involved in the controversy, and which, as will be seen, the mayor and aldermen of Savannah have resolved that the electric company may appropriate in part for its own uses. The bill alleges the additional value of their homes resulting from the quiet of the street and its freedom from cars and other disturbing noises; that the Electric Company, without first offering to pay compensation in any amount, is proceeding to erect poles, string wires, and lay tracks under pretended authority passed by the mayor and aldermen of the city near the hour of midnight on the 25th of May, 1904; that this was done without any notice whatever being given to the public of such intended action; that the resolution was read but once, the law requiring that all ordinances and resolutions, to become laws, shall be read twice, and published for two weeks in the public gazette; that the resolution is illegal and void; and that the Savannah Electric Company acquired no right thereunder. It is further alleged that the fact that the mayor and aldermen were considering the grant to the electric company of the right to thus use the street was purposely kept secret for the purpose of preventing plaintiffs and other property owners affected, from protesting against the resolution, but, anticipating a movement of this character, the plaintiffs and 59 other property owners and residents had petitioned, in writing, the mayor and aldermen of the city to permit them to be heard whenever the petition of the electric company should be presented to the body for action. This request, it is charged, was ignored and utterly disregarded, although they were assured by the mayor of the city of Savannah that they would be given ample opportunity to be heard. In this petition it is further alleged that the complainants notified the governing body of the city that to grant such resolution would cause irreparable damage to them and other owners of property and residents on said street. Notwithstanding this, the mayor and aldermen of the city immediately proceeded to grant and did grant the electric company the right to lay its tracks, string its wires, erect its poles, and operate its cars on said street. This, it is charged, will deprive plaintiffs of their property rights without due process of law, in contravention of the Constitution of the United States, and without compensa

tion having been first paid, as required by the Constitution of Georgia. Special averments of damage allege that J. B. Holst will be prevented from using the street in front of his property, and that the same will be damaged in at least the sum of $3,000. The property of A. J. Ives, Lena Anderson Myers, J. J. Cummings, R. P. Lovell, and Mary G. Stovall, it is alleged, will be damaged, each, in the sum of $2,000. The property of Henrietta Seabrook, it is alleged, will be damaged in a large sum, as will also the property of Sarah O. Adams. Mrs. Carrington, the New York complainant, who also owns an abutting lot, lays her damages in the amount of $2,500. It is further alleged that the appropriation of this portion of Gwinnett street is wholly and entirely unnecessary for the public convenience, benefit, or necessity, and is entirely for the convenience of the Savannah Electric Company, a corporation which already owns all the street railways in the city of Savannah. It is alleged to be unnecessary and unreasonable, because the electric company already has a line on which its cars are operated now on Bolton street, which is the next street south of Gwinnett, and parallels the same, and which can be used by the corporation for its purpose just as conveniently as Gwinnett street. This purpose is to run its empty passenger cars into its car barn at night, and to distribute them in the morning. It is charged that the Savannah Electric Company, within a few hours after the passage of the resolution, and before the public had become aware of its passage, had commenced the work of laying its track, erecting its poles, and stringing its wires, and, if permitted to continue with this work, and operate its cars on the track thus laid, that plaintiffs will suffer irreparable injury therefrom, and that this injury will be inflicted unless prevented by a suitable order in equity. All of this conduct, it is charged, is in contravention of the relating provisions of the Constitution of the United States. It is alleged that the Savannah Electric Company is chartered by the state of Georgia; that the mayor and aldermen of the city of Savannah, acting under assumed authority from the state of Georgia, and as an agent of the state for governmental purposes, has availed itself of the gov ernmental agencies furnished by the state to unlawfully grant authority to do the unlawful acts complained of, and that the action of both defendants is therefore the action of the state, and that their conduct under color of its pretended authority is to deprive orators of their property without due process of law. Waiving answer under oath, the complainants pray an injunction pendente lite to restrain the defendants from doing or continuing to do the wrongful acts complained of. There is also a prayer for general relief.

In response to the rule to show cause, the defendant the Savannah Electric Company alleges that the court has no jurisdiction; that there is no equity in the bill; that no federal question is involved in the bill; that it states no cause of action, and makes no case for injunction or other relief; and that the complainants have adequate remedy at law. It denies that complainants will be damaged in any manner whatever, "cognizable by the Constitution and laws of the state of Georgia," by the construction of the proposed tracks. It avers that everything was done by itself and the mayor and aldermen of Savannah in the utmost good faith, and to locate a greatly needed public improvement. It alleges that the kind of cars it proposes to run over that portion of Gwinnett are ordinary street passenger cars, making only such stops as are necessary for the purpose of receiving and discharging passengers; that this will put no additional servitude upon said street; that their scheme is a necessary part of a plan agreed upon between the mayor and aldermen of the city of Savannah and Atlantic Coast Line Railroad and the defendant to build a subway beneath the Atlantic Coast Line Railroad at Gwinnett street crossing in Savannah. Defendant points out the great danger to which passengers are subjected by the grade crossing over the Atlantic Coast Line Railroad, and alleges its intention to abandon the line of street railroad on Bolton street, so that defendant's cars, instead of running upon Bolton street, thereby passing over the grade crossing, will be run upon Gwinnett street, and pass under instead of over the railroad, thus obviating the delay and inconvenience to which the public is put by reason of stopping for passing trains, and obviating, also, great peril and danger which passengers incur from passing trains; that. by reason of this arrangement, it will be necessary to take up tracks of the defendant on Bolton street, and, as part and condition of entering into the

subway agreement, the city assented to this defendant laying a single track between Habersham and Abercorn streets, with proper connections between the two streets, it being necessary that the defendant should have this for the purpose of connecting its line of street railroad on Habersham street with its line of street railway on Abercorn street, this being the only convenient and accessible line with which defendant's said connections can be made. Defendant alleges that Gwinnett street is a public street of the city of Savannah; that the title is in the state of Georgia and in the mayor and aldermen of the city of Savannah; that abutting property owners have no rights thereon, other than the easement enjoyed by the general public; that the building of defendant's proposed line of street railway thereon will not impair this easement. damage complainants' property, or place any additional servitude upon said street. Defendant alleges that the charter granted it by the state of Georgia and the permission given by the resolution of the mayor and council of the city of Savannah were given subject to the right of all persons to receive just compensation for any private property taken or damaged, and the defendant expressly disclaims any right under said resolution or said charter to take or damage the property of any of the complainants in the manner contemplated by the Constitution of the state of Georgia without making just and adequate compensation therefor. Defendant admits that if, by the laying of the tracks and operation of its cars on Gwinnett street, the lots of complainants will be damaged in the manner contemplated by the Constitution of the state of Georgia and the decisions of the courts of last resort in that state, the defendant will have to make them just and adequate compensation therefor, and expressly disclaims any right under said resolution to take or damage any of the property of complainants in said manner without first making just compensation.

The answer of the city of Savannah is in substantial respects the same as that of the Savannah Electric Company. It is, however, admitted in the answer that the resolutions granting the electric company the right to lay its tracks on the disputed portion of Gwinnett street were adopted without any notice being given to the public of such intended action, and that the resolutions were read but once at said meeting; it being averred that no notice whatever is required to be given to the public of any resolution before council. It denies that the proceeding was purposely kept secret for the purpose of preventing the complainants and other property owners from protesting against the passage of such resolution, but admits that the complainants and a number of other property owners and residents on the portion of Gwinnett street in dispute requested, in writing, that the mayor and aldermen of the city of Savannah would give them a hearing upon the matter. It denies that this request was ignored and disregarded. On the contrary, it states that the petition of the property owners was “received as information." It alleges that, in the "committee of the whole" of said meeting, hearing was given counsel representing the Gwinnett street property owners and residents, Mr. William P. Hardee, and that said hearing was full on all points-said attorney of said property owners stating their objections just as fully as they could have done themselves and that council accorded him a patient and respectful hearing. Denying the allegations in complainants' bill that the laying of the track in question and the operating of street cars on that portion of Gwinnett street are unnecessary for the public convenience, benefit, and necessity, and that said improvement is made entirely for the convenience of the Savannah Electric Company, it admits that said company does own all the street railways of the city of Savannah, and that it now has a line on Bolton street, which is a narrower street than Gwinnett, which street is next south of Gwinnett, and parallel to the same; that said city denies that said street can be used by said street railway company for every purpose just as conveniently, so far as the public is concerned, as Gwinnett street. It alleges that the damages of complainants, if any, are not irreparable, but are easily computable; “it being merely a question of dollars and cents, without any sentimental, whimsical, or archaic measure of damages being considered." The tenth paragraph of the answer alleges that the conclusions of complainants in the relative paragraph of their bill are conclusions of law, and "manifestly erroneous conclusions at that, the same being in the teeth of the decisions of the Supreme Court of the

United States and the Supreme Court of Georgia on the subject." It contends the acts done by it and the electric company are done in the proper exercise of lawful powers, and, since they do not directly encroach upon private property, even if the consequences of such acts should damage and depreciate the value of abutting property, are universally held not to be a "taking" under the constitutional provisions. There has been here, the answer states, no direct physical disturbance of any right, either public or private, which complainants enjoy in connection with their respective properties. But even if such be the case, respondents allege that the courts can grant no relief, provided there is no physical interference with the right or easement of said property owners to egress from and ingress to their lots along said street. As to whether or not said railway track should be upon Gwinnett street, or upon Bolton street, or upon any other street, the city council of Savannah, in its best judgment and discretion, is vested with the responsibility of determining the same, and the courts are relieved from such responsibility, and have no right to interfere therewith.

J. F. Cann and Walter G. Charlton, for complainants.

W. W. Osborne and Alexander A. Lawrence, for defendant Savannah Electric Co.

William Garrard, City Atty., for defendant mayor and aldermen of city of Savannah.

SPEER, District Judge (after stating the facts). That portion of Gwinnett street in the city of Savannah which is involved in the controversy before the court is what is termed a "residence street.” On either side are the homes, all comfortable and many spacious and elegant, of well to do people. It is made clear that this locality was selected for homes by the class of residents who own the abutting lots because of its quietude and repose. The Savannah Electric Company enjoys a monopoly of street railway traffic in that city, and has long evinced a desire to lay its tracks on this portion of Gwinnett street. The parties complainant, the owners of residences thereon, have consistently and earnestly objected. They have contended that it would largely impair the comfort, the quiet, accessibility, and therefore the value, of their homes. They have also contended that the appropriation of the street by the electric company is unnecessary, for a short block to the southward the same street railway company already owns and controls a line on Bolton street parallel to Gwinnett; and this track, it is insisted, is ample for all purposes of the street railway service of Savannah. Previous to the occurrences of which complaint is now made, the mayor and aldermen of the city of Savannah have accorded a hearing to the property owners on this street whenever the electric company sought authority to lay its tracks thereon. It is now, as appears from the foregoing statement, alleged that such a hearing was promised, but was unlawfully and injuriously denied; that the action. of the city government is unlawful and void; that no lawful grant of power to the electric company to appropriate the street in question has been or can be made; that the electric company appears on the street as an intruder; and that the present action of the city council and the electric company, both creatures of the state, and jointly acting under its assumed authority, is obnoxious to that clause of the Constitution which declares:

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive

« AnteriorContinuar »