Petition for Writ of Certiorari — Southland Inc. v. Cox Enterprises, Inc.

56 7

JAN 19 ien

R kr weAveR @LERK

— —— =

S

SUPREME COURT OF THE UNITED STATES

October term 1970

No. 125 1

SOUTHLAND INCORPORATED

Petitioner in Certiorart

V.

COX ENTERPRISES INC. AND ATLANTA

NEWSPAPERS INC,

Defendants in certiorari

Petition of Southland, Incorporated for writ of

certiorari to the Supreme Court of Georgia.

G. Seals Aiken

Attorney for Petitioner :

1409-10 Candler Building '

Atlanta, Georgia 30303

— 9 ert torr

petition of Sevthtend — for writ

of certiorari to the Suprem Court of

Georgia, and direct and concise argument

amp} ifying the reasons relied on for

allowance of the writ. |

To the Honorable Chief Justice and Associate

ties of the Sufreme Court of the United

Sta tes | 3

Southland Incorporated, « Georgia corpor-

ation, files this its petition for writ of

certiorari to the Supreme Court of Georgia

a

ed and reversed the decisions and judements

of that Court of October 8, 1970 reversing the

L» OF the Superior Court of Fulton County,

cee in Civil Action No. 888870 relative

to a Motion to Dismiss end in Gismissing on

“appeal of petitioner From a prior unfavorable

" judgment in the same court end tn the same couse.

Cave nenbers assigned by-the Supreme Court ö

of Georgia were 25917 for the origine! appea!

oF Petitioner and 26026 for the appeal of

opposite parties, based on an order fol lowing

a special hearing on a Motion to Dismiss.

The last appeal filed (26026) was hele

to control the earlier case (25917).

Petitioner filed Motions for Rehearing

in both appeals, wich motions were denied

— October 22, 1970. *

The origina! trial and the special hearing

*

on the motion to dismiss the appeal were reported. ‘

mis petition for writ of certiorari seeks

a review of the decisions and judgments of

“the Supreme Court of Georgia in Both coset,

25017 end 26026.

CONCTSE OF Tt ;

0 OF Te COURT TS THVORED

.

„1e

— —

— 0, 1070. Way agpeer tn

___ RAG _ Georgie. 7 |

Tre motions of Petitioner for reheering

were Genjea Qutsber 22, 1970 and entered the

we statutory. provision bel teved to confer

on this Court jurisdiction to review the judy-

ments in question by writ of certiorert fs

Section 1257 (3) of Title 28 U.S.C.A. reading

in part as follows:

“Final judgments or decrees rendered by

the highest court of a State in which a decision

- could be had, may be reviewed in the Supreme

Court as tolles: een of certiorari,

ere any title, right, privilege or tamunity

is specially set wp or claimed under the. |

—

“2

1 — | ee ree

4 0

8

1

Constitution ** t the United States”.

In addition, the Georgie courts Reve so

far departed from the accepted end weve! course

of judicial proceecings, or be fer sanctioned

such © Guparture ty a Yerer court, es te call

for en exercive of the Supreme Onurt's power

of tuperviston. |

THE QUESTIONS PRESENTED FOR REVIEW

. WHT) a newspaper publishing company

$ be permitted te relocate one en of e busy

— in the City of Atlante

for the newspapers | private conventence when

that privilege has been denied al! others,

including railroads which are public servants?

2. Wil) @ newspaper company be permitted

te take for its private use as @ building site

—

thoroughfare when the courts have universally

held that public streets cannot be taken for

3. will trial court be permitted to re-

8

Derne

e b.. Constitution end to arbitrertly end

caprictously hand Gem a decision ignoring

% Constitutional issues?

4. Cin a court reporter's Yess of alt the

documentary evidence in a case, delaying en

appeal 13 months, deprive the Petitioner of

a revier of its couse before the State's

highest tribunal?

1. Shall both the appellate courts ond the

eee. jurisdiction over

appeals after they have been docketed in the

appellate court?

1 1

avoid considering and ‘deciding grave Constitut-

ional questions by merely holding that the

instant case is “controlled” by another case

dealing with different matters?

. Can e case be said to “control” another

case watch was before the appellate Court

three months earlier but on which a decision

—

6 $

nad deen, delayed? \

8. WITT @ trial court end an appellate.

court de condoned in accepting wegative, self.

contradictory, vague, evasive and equivecal ==

testimony of Defendants as in preference to

direct and positive testimony as given by

Petitioner? 2

9. Shall @ party de deprived of ingress

and egress, unimpeded and unobstructed, to

and from its place of business by way of the

public streets leading thereto?

10. Does the expenditure of large sum of

money justify the Defendants in obstructing

public streets with » permanent building?

u. die the Defendants erect the building

‘im the streets at thei? peri! while injunction

proceedings were before the courts?

12. Wether the trial court failed and re-

fused to decide the merits of the case as

shown by the evidence end whether this position

was Sustained and condoned by the Supreme

Court of Georgia.

. 7 ; ae

i3.is relief From Gdstructed streets i imit-

ed to ection by the municipality or abutting

landowners” | |

14, Does a municipality have eutherity —

| to obstruct streets permanently for private

benefit of ebutting (

— Oo the courts Reve authority te tntervene

in the relocation of @ public street for private

Gon Enterprises Inc. and its subsi¢iery

Atlanta Newspapers Inc. are building a multistery

permanent building at Fairlie Street tM and

Wall Street in in the center of Atlante.

The building encroaches te the miadle line

of both streets. In the Case of Fajrlie Street

=

g

.

% eine.

BIO Feet, the . be relieved.

by relocating the street becouse the Federa!

Reserve Gant uns the other sige of the street.

that t 1s “Compereting™ with the newspaper

company tn its expansion — deck Tarver,

President of the two newspaper corporetions,

wes alee chatrman of the teard of the Federal =~

“Reserve Gank at the time of the original

Southland — hes its place of

business on Forsyth Street 50 yeres-¢rem the

encredchment area, its access is ebstracted |

ond it hes suffered loos of business. Forayth

— 4 teo-tevel struct —

of the preperty of Southland Incerporetys —

affected is on the underground level, where

' Forsyth Street forms a cul-de-sac. Petitioner's

caly divect access to the underground level

is over Fairlie and un Streets, which are

. oe cunvane.” ° |

Doth n Neve been ebetrected for tw.

— caHyp |

— . — i

22.

— ty ie reduction of the ween

‘Of ‘the street to the width of an alley. -

22

first obstructed ty pouring of concrete .

tions, Petitiqner sought tagunctive relief in

—— — f

Petitioner appented to the Supreme Court pf Georgia

where its case nu. un. (25997) 1

| te May 13; 1970 the trial court heard « tween |

; by Defendants that the appeal of Petitioner at thet

time in the appellate court be dismissed. Tee trial ~”

—— the sation bat pasted an order vaying:

— ieceeti eens tect cate!

Defendants appealed to the Supreme Court of

8

1

Georgia on October 8, 1970 handed down s imu! taneous

decisions reversing the trial court on the dismissal

of the motion to dismiss the appeal and holding that

26026 controlled the original appeal of Petitidner

(25917). This had the effect of denying Petitioner

@ review of the case.

—

QUESTION NO. 1. |

In the case of Coker et a] v. Atlanta, K. 6M.

Ry. Co. 123 Ga 483, 51 SE 481, two merchants in the

vicinity (not abutting owners) sought an injunction

against the railway company and the City of Atlanta

to prevent them from relocating a street for the

convenience of the railroad.

The Supreme ‘Court of Georgia, reversing the

trial court, gave the plaintiffs the relief they

sought and the relocation of’ the street was denied.

In like circumstances, this same Supreme Court

of Georgia has denied Petitioner similar relief in

violation of its constitutional rights and has

permitted a newspaper company and the City of

Atlanta to relocate Fairlie Street ti, a busy

tt f

thoroughfare, for the private accommodation of the

_, Sewspaper company’s daw building. .

d deceive the public the project hes been

titled a “widening and improvement” project wher~

the actual “widening” is. six inches.

The project has destroyed Petitioner's only

direct access to the strests of the city fer the |

lest two years, and indications are that construc-

tion will continue for Several years more.

mis Court has applied the rule of due process

to grade crossings: 98 | ed 62; ‘Atchison L. and |

dee adde am, 26 ut. 825

98 1 ed 51; 74S ct 92.

QUESTION NO. 2.

In Herbuck v. Richland Box Co. et a) 204 Ga.

952 the Supreme Court of Georgia held invalid an

ordinance which granted a private firm the exclu-

sive use of a part of a public street.

les Petitioner sought relief in the same

court for a similar nuisance it was given quite

- different treatment and was refused relief.

7

12 ,

Petitioner insists that it be given equal

— in like circumstances, as guaranteed

by the Federal Constitution. .

* mere ore ether iastences of lite circum

stances in which aggrieved persons have been

given treatment unlike that given this Petitioner

by the same court.

In Rider y. Porter 147 Ga. 760, 95 SE 284 it

was held that any permanent structure in a read

which materially interfered with travel is a

nuisance per se, and that any obstruction per-

manent in nature or continuously maintained, which

interferes with the free use of the road by the

public, is a public nuisance and it is iamateria!

that space may be left on either side of obstruc-

tion for the passage of the public. The public

have @ right to the unobstructed use of the whole

road as it was acquired by the county or city.

uv beriet Choir Co. W Henderson 121 Ga. 399;

407 SE 312; 104 Am St 156; 2 Ann Cas 83 it wes held

thet neither the General Assembly, nor 2 subordinate

public corporation acting under its authority, can

13 eer

vacate a public street for the benefit of a private

person or corporettion.

Marans —

754; SO SE 998; 105 Am St 147, u said that any

permanent structure in a street which materially 8

interferes with travel thereon is a S auisence,

and that the public is entitled to the whole of

every street against one who places obstructions

therein. > |

During the trial the City of Atlanta contended

that the streets and turning courts belonged to the

city and the city could.meke any use of then that

the city desired, and’ the trial, court Supported

this position and was condoned by the appel late

court. |

This is a Constitutional issue, as is shown

— Gas Co, v. Porter Oi Co.,

which reads: | 2

“Statute authorizing police juries and munici-

pal corporations to revoke and set aside dedications

of roads, Streets and alleyways, when abandoned or

no longer needed for public use, is not invalid as

pee 14

authorizing the taking of property of dedicator

without due process by providing that omership

shall revert to the then present ers of land

“Contiguous to such rosd,~strest or alley, SINCE

LAND DEDICATED TO PUBLIC USE UNDER STATUTE VESTS

THE TITLE TO THE PROPERTY IN THE PUBLIC AS AGAINST

‘THE CONTENTION THAT THE PUBLIC HAD BUT A SERVITUDE

on the streets and alleys which on abandonment

reverted to the dedicator’. .

me Supreme Court of Georgia, which in the

instant case is permitting a newspaper company to

appropriate to its private use 20,000 square feet

of a busy thoroughfare, in an early case (Daly L

Georgia , Railroad Co., 80 Ga. 793, 7 SE 146)

held that a statute conferring power upon munjcipal

corporations to permit and sanction encroachments

on their streets for a reasonable compensation in

money did not justify a grant to a railroad company

of an extensive portion of a street. i=

If @ railroad, which is a public servant, n-

“not take over 8 portion of 2 street EVEN FOR °

how much less can a newspaper company take over half =a

9

6

15

of 2 thoroughfare WITHOUT ‘payment.

Only consideration the newspaper company has

given was favorable publicity for a former mayor,

Ivan Allen, ., to make him appear to be e great

mayor. Thus, the mayor of an taportant city has

sold the public's right to use of its streets for

a mess of publicity. |

The courts which permitted the newspaper com-

pany to take over the streets, but refused the same

privilege to the reilroad, dispensed unequai justice

in violation of the Federal Constitution.

| No person has the right to use the streets

permanently for private purposes. Silverman v. Usen

128 Me. 309; 147 A 421; galt z., Carter 011 Co.

54 Va 570. 46 SE 656.

A municipality cannot, 6

to permit an obstruction or encroachment upon its

streets or sidewalks, authorize any person so to

appropriate a street. or sideuajk or any part of it

as to exclude the general public from its free and

215 WY 495, 109 NE 577; Sti}twater z. Lovell, 159

Okla. 214, 15 P 26 12; Arbone v. Wanting and H. 8.

It is one of the fundamental principles of the

Common law thet no privete interference with or pur-

presture in or upon the public highway will be

tolerated. Clawson v. Central Hudson Gas & Elec

Corp 298 WY 291; 83 NE 26 126.

There is general agreement upon the proposition

that any permanent, fined, or stationary object or

impediment , as distinguished from a mere temporary

obstruction incidental to a lawful use of the way,

which unreasonably and unnecessarily interferes with

public travel, or which endangers the safety of

trevelers, constitutes a public nuisance per se.

Richardson v. Boston 19 How (US) 263; 16 L ed 639;

Birmingham v. Hood McPherson Realty Co. 233 Ala 352,

g

172 So 114; 108 ALR 1140; Strong vy. Sulliven 180

Cal 331, 181 . 4 ALR 363; Michelson v. Dwyer

158 Neb 427, 63 1 26 513; Graves v. Shattuck 35

WH 257, Opdycke v. Public Ser. R. Op. 78 WL 576,

76 A 1032; Stern vy. Internstions! & Co. 220 mY 286,

115 NE 759, 2 MLR 487; Brooks v. Henrietta Mills Co.

| 9 a a.

182 WC 719, 190 SE 96; MeGowen v. Burns 172 Or 63,

137 P 26 994; Breisch v. Locust Mountain Cpal Co

267 Pa S46, 110 A 262, 9 ALR 1330; Memphis Street

R Co v. Sapid Transit Co 133 Tenn 99, 179 Su 635;

McFarlane v. Miegere Falls 267 WY 300, 160 NE 391,

57 ALR 1; Qygert v. Schenck 23 Wend (NY) 446, Price

v. Travis 149 Va $35, 140 SE 644, 56 ALR 209;

am ee v. tesrse, 11 W ve 264, 161 SE 37, 77

AR 1110. L f

A building or other similer structure erected

on er extending into a street or highay, wi thout

legal right or public authorization, or for an

| at is an unlawful obstruction

thereof or encroachment thereon, constituting a

public nuisance:

"First tint. Bank L Tyson 133 Ale 469, 32 So

124; Daly v. Georgie S. AE. A Co 80 Ga 793, 7 SE

146; People ex rel McCormick v. Western Cold Storage

Co 287 111 612, 123 NE 43, 11 ALR 437; O'Brien yy.

Central Iron l. Steel Co 158 Ind 218, 63 NE 302;

Cowin z. Waterloo 237 lows 302, 21 MM 2d 705, 163

‘MR 1327; Valparsiso v. Bozerth 153 Ind 536, 28 NE

t

&

ee

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418; Levis v. Pingree Mat. Bank 47 Utah 35, % „

SPSS AEN —

197 @ 707.

A imfitations or the uses to which a highway may

be put have been laid down by this Court in inter-

preting the 14th Amendment. Thsse Mattations hove

been extended to vehicles for which the highsays

were designed. The limitations certainly would

prohibit a permanent private building as an obstruc-

tion in the street. |

“The power of Legislature to regulate highways

and their use is not exercisable for the purpose of

conferring upon a private person a special or exclu-

sive right in use of highays for private gta. but

contro} or conditioning of.use of higheay by 2 busi-

ness must be done os 0 safety measure", Mertz Orivur-

— States 60 4 26 46; 200 Pom 25;

7 MR 26 438.

The police meer of 6 State includes everything

essential to public safety or health and justifies

the destruction or abatement by summary proceedings

of whatever may be vegeréed as a public nuisance.”

Sean eee ad

19

Aguiar & Bello v. Brock .C. Cal. 1998: 26 F Supp 682.

ing to the center of un thoroughfares has been show

to be @ public nuisance and should be removed.

_ “Lessee of railroad right of way wes not deprived

of property without due process by decree abating

nuisance and requiring removel of buildings", City

of Sturgeon v. Wabash Ry Co 17 SW 24 616; 223 Mo.

hop n. . |

If a city can abate a nuisance by removing

bufidings from a railway right of way, auch greater

daly @ — deen

public street as in the instant case. la Petition-

er's case officials of the City of Atlanta are in

collusion with the Defendant newspapers in the

taking of the street for a private building site.

“Destruction of bridge pier mean encroach-

| ing on street does not deny due process” » City of

— De A, Me ,

290; 167 La 711.

If a reilroad can be — to destroy a

bridge pier encroaching on @ street, a newspaper

1 *

y

company con be required te remove its but léing

from the center line of a street. The *

decision 1s based on the 14th Amendment.

So gunerally accepted wader law 1s the pridct-

ple that the public streets may not be taken for

* private purpose that the Mest publications :in

their indexing system have set wp 0 itporate

heading Key 669 entitled: “Streets may not be,

permanently used for private purposes”.

“eeThere is no vested right to the use of

property in such @ manner as to constitute a

. an injury to the public health or morals,

or gn injery to the property rights of others®:

Yours v. Wiel) Inv. Co n 461; Cowin v. City of

e 163 ALR 1327 ; State v.- lew England

Furniture Co. $2 LRA ns 932; Wathorn v. tates)

Corbonic Gas Co. 23 LRA ns 435, 12 Ann ces -

Commission, 342 U.S. 938.

In the instant case the Defendants are using

the public street in 2 private way to constitute

& public and private nuisance, an injury to the

“safety of the public, ond a special —

property rights of Petitioner. 1

@ CIS me 218 (3) “Statute euthsrized.

boards of supervisors 2 legislation

te protect reeds and bridges. from encroachment or.

cbstruction or fren any taproger — >

injurious use 1s : -Standerd 01) Gp v. Coman-

2»

wealth 109 SE 316; 131 Virginia . ae

| “The word ‘ebstruct’ dees sot — mess

renter Supessable, when wed of 2 piblic way”: Qver- .

. Cores} Co. 92 Mi 74; 118 lows 417.

In the instant cose the Defendants pleaded thet the

‘public hed plenty of room to pass.

“Public we determipes taxing power of States.

Exercise of taxing power for merely private purposes

is beyond authority of States.” Loan Assoc. vy. __

Topeka 20 Wall, 655. On this theory the State has

no authority to allow its highways to be used for

purely private purposes, as in the instant case.

This Court iiss held that whether a use is

public or private is ultimately a judicial question:

Miltheim v. Moffat Tunnel Dist. 262 U.S. 710. - This

a

.

trial court and the Supreme Court of Georgia. Both

refused to make the decision. There can be little

doubt thet using 8 street for the building site of

8 private plant is a private use.

The taking of u street for a privete purpose

1s 8 sort of eminent in in reverse. Under

eminent domain Constitutions! provisions protect

privete parties fram lesing their property to

public taking. Under lew it much more urgent thet

the public be protected from privete taking of

public property as in the ſas tant case.

This Court hes prohibited the taking of «

street for privete purpose: Chicago, St. Paul

M. 0. Ry v, Holebere 282 U.S. 162. |

This Court hes decided u case dealing with tol)

rode: Norfolk Turnpike Co. v, Virginie 226 U.S,

264. ,

This Court hes decided cases dealing with load

limits on vehicles using the highways: Sproles z.

Binford 286 U.S. 374; and. with advertising on trucks:

fy. Express Co. v, lew York 396 U.S, 106,

| 23

mis Court has regulated driver licenses in

the premise that any appropriate means to protect

other highway users in consonent with due process:

Reitz v. Mesley 20 u. s. 33; Kesler v. Dept. of Pub.

Safety 369 U.S. 153. Under the seme premise it

would appear that no person may obstruct a highway

and such obstruction may be removed, to ‘protect

other highway users.

Police power extends to what is for the

greatest welfare of the State. Reduction Co. A.

Sanitary Works 199 U.S. 306,318. Police power

embraces health, safety and morals.

QUESTION NO. 3

During the hearing of a motion to dismiss

Petitioner's appeal in the trial court May 13,

1970 Constitutional questions arose and Petitioner

prayed the court to continue the hearing unt!

these grave issues could be researched. |

The trial court denied the continuance and

terminated the hearing arbitrarily but agreed to

withhold judgment a few days to allow briefs.

24

On May 16, 1970 Petitioner offered its brief

dealing with Constitutional questions, principally

legality of Ga. Code Section 6-809 (b) which per-

mits @ trial court to retain dual Jurisdiction in

cases docketed in the afpellate courts.

This Court is requested to examine this brief

and to declare unconstitutional these provisions

which have denied Petitioner a review of its cause.

Obviously the trial court did not read the

brief, or 1f it did, the trial court did not give

weight to the contentions thereof.

QUESTION NO. 4,

At the close of the trial in the lower court

on April. 4, 1969, the Court Reporter misplaced 40

of the documentary evidence (258 pages of exhibits,

including affidavits, charts, photographs , pleats,

etc.) and did not find it until April 24, 1970,

nearly 13 months later, thus delaying the prepara-

tion and filing of the transcript of the evidence

necessary to be transmitted with Petitioner's

appeal to the Supreme Court of Georgia. This is

w

25

the uncontroverted evidence in the record. Despite

this uncontradicted evidence, the lower court, and

the Supreme Court of Georgia in deciding Case No.

26026, stated thet the delay wes inexcusable and

was caused by the Plaintiff. (Petitioner) At no

time was the Plaintiff in custody or control of the

missing evidence, ond at no time was care of the

evidence the responsibility of the Plaintiff.

When 8 court reporter “loses” or misplaces al]

the documentary evidence in a case and thus delays

an appeal thirteen months during which the defend-

ants are able to bring to nesr completion a building

which the suit seeks to enjoin it would be a

miscarriage of justice to hold that the delay was

‘caused by Petitioner. |

Southland, Incorporated, Petitioner, performed

811 of its responsibilities in the case when it

filed timely notice of appeal, ordered the transcript

and evidence prepared by the reporter, paid him in

advance, paid al! costs promptly, diligently sought 5

and obtained proper extensions of time, and filed

and transmitted the record, transcript and evidence

as

to the appellate court within the time allowed by ~

the last extension. |

Dereliction of duty and irresponsibility in

caring for evidence on the part of court reporters

seldom appear in Georgia case law, but we have found

the circumstances in the present case duplicated in

cases cited in several other jurisdictions. The

present case is the only case we have been able to

find in any jurisdiction in which a litigant has

been denied a review in an appellate court by reason

of the negligence of a reporter. |

In Indianapolis Life Insurance Co. v. Lundquist,

53 N.E. 2d 338, 222 Ind. 359, it was held:

"9. Official court reporters are an arm of the

court, with duty of preserving a record of the evi-

dence, and a failure to make such record available

ds a failure of the court which entitles injured

party to equitable relief. |

N. Where reporter's notes and exhibits were

lost beyond recovery through no fault of appealing

defendant, and it would be impossible to procure a

bill of exceptions without them, defendant was

27

entitled to a new trial unless parties could agree

on bin of exceptions.”

The equal protection clause requires that

once a State establishes avenues of appellate review,

those avenues be kept free of unreasoned distinctions

that can only impede open and equal access to the

courts": Am Jr 2d Const. Lew 539. Rinaldi . Yeager,

304 U.S. 308; 86 S Ct. 1497; 16 L od 24 577; WiITions

v. Oklehome City 395 U.S. 458; 89 8. ct. 1818; 25

ed 20 440; North Caroling v. Pearce 395 U.S. 711; 89

8. ct. 2% 23 1 ed 20 656.

hen the trial court and the appellate court

denied Petitioner a review in the State's highest

tribunal Supposedly because of a stale appeal, both

acted in violation of Ga. Code 2-3705 (Constitution-

81 provision) which reads: >

n writ of error shall be dismissed because

of delay in transmission of the b. II of exception

and the copy of the record, or either of them, re-

sulting from the default of the clerk or other cause

unless it shall appear that the plaintiff in error

or his counsel caused such delay**", :

—

28

The judgment of the Supreme Court of Georgia

deprives Plaintiff of its property consisting of

its constitutional right of ingress and egress,

unimpeded and unobstructed, to and from its place

of business by way of the public streets leading

thereto, without Due Process of Law and without

Equal Protection of the Law in violation of Article

I, Section i, Paragraphs I, II. III. IV, and XXIII,

and Article 81. Section 11. Paragraph Iller the

Georgia Constitution; and Amendments . IV, and X

of the U. 8. Constitution as applied to the States

by Section I of Amendment XIV thereof, by depriving

it of the applicable and-controlling law applied to

other ‘persons and corporations in like circumstances

and similar situations, in the foregoing particulars.

The dismissal of Petitioner's appeal by the

Supreme Court of Georgia deprived it of its property

without due process of law and without equal protec-

tion of the lav in violation of Article I, Section

I, Paragraphs II. III. and IV of the Georgia Consti-

tution and Section I of Amendment XIV of the b. S.

Constitution as applied to the States, by depriving

it of its right wate said provisions of the

Georgia and . 5. Cons ti to @ review of the

erroneous judgment of the trial court granted to

other persons in like circumstances and similar sit-

uations. |

“The power of a State to determine the limits

of the jurisdiction of. its courts and the character

of the controversies which ‘shall be heard in them,

and to deny access to its courts, in the exercise

of its right to regulate practice and procedure,

as also Subject to restrictions imposed by tune |

contract, full faith and credit, and privileges and

immunities clauses of the Federal Constitution”:

Ange} _v. Bullington 330 u. s. 183. (Emphasis added)

The principle of separation of powers is

violated by Georgia Code Sections which undertake

to lay down judicial rules. Administration of

resulting dual jurisdiction of the courts has’ de-

prived Petitioner of its right to review in the |

State's highest court.

The Supreme Court of Georgia should be reversed

in its affirmation of these statutes.

: 30 , /

8 QUESTION 0. 6.

Petitioner is entitled to a decision on the

points raised in its appeal. In the case of Moody

and Wife vs. Davis, 10 Ge. 410-411, it was held in

part: “The beautiful theory of a trial is this:

Both sides are represented by counsel, that their

rights may be settled, not by art or chicane or the

tricks of the orator, but ACCORDING TO THE LAW.

It 18 therefore the duty of counsel to present to

the Court the points which he conceives are in

favor of his client; and it is his right to be

heard in argument to sustain them; and WHEN PRESENT-

ED, IT IS TWE DUTY OF THE COURT TO PASS UPON THEM,

IF THEY GROW OUT OF THE CASE * * * If he declines

to pass upon a principle thus moved, and it springs

Hut of the case, such declining is error” „

QUESTION NO. 7.

Judicial decisions may operate precisely like.

ex post facto laws which are forbidden by Art 1,

Sec. 10 of the Federal Constitution, this Court has

held in Boule v. Columbia 387 U.S. 347; 64s. Ct 1647;

31

12 L ed 2d 894, petitioner contends it is a viola-

tion of a well established principle of law and

Justice as well as a violation of both the Georgia

and b. 8. Constitutions to apply u lew or decision

retroactively. Article I, Section III, Paragraph

Il of the Georgia Constitution expressly provides:

“No Bill of Atta inder, ex post facto law, retro-

active law, or law impairing the obligation of con-

tracts, or making irrevocable grant of special

privileges or famunities, shal) be passed, * (Ga.

Code Sec. 2-302). Article 1, Section IX, paragraph

3 of the U. 8. Constitution provides that "No bill

of attainder or ex post facto law ‘shall be passed,”

paragraph * of the U. 8. Constitution provides that

“No b111 of attainder or ex post facto law shall be

passed,” and Article I, Section 10 of the U. $ ;

Constitution provides in part: “No State shall * +

_ pass any bill of attainder, ex post facto law, or

law impairing the obligation of contracts, or grant

any title of nobility.” These provisions of the

V. 5. Constitution are applicable to the States under

<

9 32

Section I of Amendment XIV thereof.

U. S. Constitution, Section 9, Article I pro-

vides: “No bill of attainder or ex post facto law

shall be passed”. Similar provision is in Section 10.

The Supreme Court of Georgia violated this pro-

vision when it held that the appeal of Petitioner

(25917) was controlled by 26026, filed three months |

later.

"The bill of attainder clause of Article I Sec.

9 Clause 3 of the Federal Constitution and the prin-

ciple of separation of powers do not protect states

but only individual persons and private groups",

South Carolina X. Katzenbach 383 U.S. 301; 86 8. Ct.

803; 15 L ed 2d 769.—

me judgment of the Supreme Court of Georgia

that, “This case is contro! led by Cox Enterprises ,

Inc. Et al v. Southland, Incorporated, 226 Ga.,

(Case No. 26026) this day decided,” and “Appeal dis-

missed,” is without foundation in fact or law and

unsupported by any authority whatever. Nowhere have

we been able to find an instance in which a later

esse controls an older case. Nowhere have we been

/

, 33

- able to find another instance in which the alleged

controlling case dealt with matter entirely different

from that of the case allegedly controlled.

Case No. 26026 which the appellate court states

controls case no. 25917, deals with one subject and

one subject only, namely, alleged ta leness of appeal.

The record in this case, No. 25917, presents volum-

inous evidence of fect, many questions of law, and

Questions which must be decided in the public

interest and in justice to Plaintiff. None of

these matters is even touched upon in the so- cal led

controlling case no. 26026.

The Supreme Court of Georgia in 1866 laid down

the ground rules for controlling cases, In Gray

vs. Gray, 34 Ga. 499, it held: “A decision of this

court WHEN IN POINT, Is conclusive authority *

SUBSEQUENT CASES.” Since that time the appellate

court has consistently held in hundreds of cases

the facts or the questions propounded must be the

same in the controlling case and the case controlled.

The decision of the appellate court in case no.

25917 does not meet this test.

2

—

34

In 1911 the Georgia Supreme Court held that

former decisions UNDER THE SAME FACTS were contro} ]-

ing, Giddens vs. Lewis, 137 Ga, 22, 72 S.E. Al.

The Georgia Court of Appeals has consistently follow-

ed the same principle as in Central of Ga. Ry, Co,

vs. Hartley, 26 Ga, App, 120, 103 $.£, 262, in which

it held that the case controlled NEARLY EVERY PARTI-

CULAR in @ suit by another plaintiff growing out of

the same transaction, |

QUESTION NO, 8.

As to the date the transcript was ordered, the

president of the plaintiff corporation testified in

an affidavit in the record of this Case, 25917, and

again in a separate pleading in Case 26026 as follows:

"On April 8, 1969, four days after the trial, I

paid the plaintiff's half of the takedown costs and

ORDERED THE TRANSCRIPT prepared for appeal,”

This 1s plain, positive and direct, It is the

type of testimony which is given preference in de-

cisions of this Court and by Ga, Code Sec, 38-1].

Direct and positive testimony (such as that

of the plaintiff a. ae has been given pre- .

ference to negative, self-contradictory, vague, eva-

Sive and equivocal testimony (such as that of the

defendants) by Georgia Supreme Court in Southern

Ratiway Co. v. Hobbs, 12) Ga. 428, 49 l E. 294; and

Steele v, Central of Ga. Ry. Co.. 123 Ge. 237, 61

S.£, 438.

The same principles have been upheld by the

Georgia Court of Appeals in Allison v. Cobb County,

98 Ge, App. 231, 103 S.E. 2nd 195; and Dowling V.

Tracy, 116 Ga: App. 43, 156 S.E. 2nd 524.

The court reporter had Opportunity in an affi-

davit and in oral testimony, both recorded in the

transcript of the Motion to Dismiss the Appeal to

refute and deny directly the aforesaid evidence,

but he did not do so. He had opportunity to deny

that he had reported the evidence missing for many

months, He did not do so,

When examining counsel tried to get something

definite on a date from the reporter the answer was:

"A, Probably some time in March, That is

JUST A WILD GUESS,"

It was on the . reporter who

made WILD GUESSES as to dates that the Plaintiff

has been denied a review of its cause when the

crucial evidence was a matter of a date.

When questioned on the stand by counsel for

the defendants as to who ordered the transcript,

and when, the reporter replied:

"A. The best | remember it was Mr. Taylor,

and again, the pest | remember because | don't

have any notes about any specific date, bot July,

August, or September of last year, 1969,”

This was the vague and equivocal evidence

which the trial court below, and the appellate court,

accepted in preference to the direct and positive

Statement of the exact date as given by the presi-

dent of the plaintiff corporation,

On this dubious evidence both courts have con-

cluded that the plaintiff delayed its decision to

order the transcript unt t! August, 1969 and that

this caused the delay in the appeal,

„ 37 ;

QUESTION NO. 9.

The trial court held and the appellate rT)

in effect affirmed that only an abutting 128

had rights of ingress and egress that the courts can

recognize and protect from obstructions in the street,

It has been held that land does: not have to

abut at the exact point of the obstruction: Tress

y. Pivorotto 133 A 35, 101 Conn 389; Knothe y. Zinzer

118 A 477, 96 Conn: 709; Brown v. Roberts 55 SW 24 9,

246 ky 316, |

It has been held that @ landowner may claim

special damage from an obstruction even where his

land does not abut on the highway, if it 4s near

enough to be materially affected by the obstruction:

Madden v. Pennsylvania R Co 21 Ohio Cir Ct. 73, 11

“Ohio Cir Dec. $71.

This is precisely the case with Petitioner,

whose land is 50 yards east of the obstruction but

whose access is destroyed.

QUESTION NO. 10.

"There can be no equal justice when the kind of

| 38

trial a man gets depends on the amount of money he

has": Smith v. Bennett 365 U.S. 708; 61 8. ct. 895;

6 Led 2d 39. 1 1

When the Defendants appeared to be influencing

the trial court with their argument as to the millions

of dollars the defendants had spent, Counsel for

Petitioner raised the Constitutional question as

shown in the record. |

The Supreme Court of Georgia pointed out in

* of its decision that during the delay 75

per cent of the construction was completed. The

appellate court must have known that the defendants

constructed the building at their peril.

The appellate court pointed out in Support of

its decision that the defendants expended a large

financial outlay in constructing the building. We

contend that no expenditure, no matter how large,

can justify in law or equity the erection of an

Obstruction in the public streets.

QUESTION 0 11.

The Defendants pleaded and the Supreme Court

39

of Georgia stated in support of its decision that

the Defendants had expended: millions on cons truction

while the injunction proceedings were before the

courts. | x

Petitioner contends that Defendants acted at

their peril.

QUESTION NO. 12.

When a street is taken for a private purpose

the Constitutional rights of those who use the street

are invaded. |

Recent decisions which the courts of many states

have held that streets cannot be used for private

purposes include the fol lowing: Cal.--People u.

Goodspeed, Super., 192 P.2d 130, 85 Cal. App. 2d 4

Supp. 821 People ex rel. Dept. of Public Works _v.

Russell, 309 p. 20 10, 48 C.2d 189. C.J.S. cited in

Lewis v. Lorenz, 354 Pp. 2d 1008, 1011, 144 Colo. 23.

»Antenucci_v. Hartford Roman Catholic Diocesan Corp.,

114 A.2d 216, 142 Conn, 349. Town of Ogden Dunes v.

Wildermuth, App., 235 N. E. 2d 73. C. J. S. cited in

State v. Hall, App., 351 S.W. 20 460, 463. State

Dept. of Roads 1 Bros. Sand & Gravel Co.,

144 M. u. 2d 180, 180 Neb. 660. “Lambe v. Reardon,

173 A.2d 520, 69 K. J. Super. 57. In re Appropria-

tion for Highway Purposes, 215 N.E. 2d 612, 6 Ohio

App. 2d 6--Miller v. Berryhill Nursery Co., 218 N. E.

2d 467, 7 Ohio App. 2d 30--In re Appropriation for

Hwy. Purposes of Land of Winkelman, 234 K. E. 2d 514,

13 Ohio App.2d 125. William Lauback & Sons v. City

of Easton, supra, n. 5. Wolfe x. City of Providence,

74 A. A0 843, 77 fl. 1. 192. Abell v. Central Vt.

Ry.» Inc., 102 A. 2d 847, 118 Vt. 189. Anderson

v. Stuarts Draft water Co., 87 8. E. 2d 756, 197

Va. 36. State ex rel. York v. Board of Com'rs of

Walla Walla County, 184 P.2d 577, 28 Wash. 2d 891,

162 K. L. B. 1001.

A

QUESTION NO. 13.

The trial court held and the appellate court

in effect affirmed that only an abutting landowner

or a municipality could enjoin the taking of a street of

oe

for private purposes.

That there is no merit in this argument is

« ; —

—

4

‘shown by citations elsewhere in this petition in

which the courts have acted to protect the publ ie

interest.

QUESTION NO, 14,

Under the common law, an obstruction of a

street or highway which constitutes a public nuis-

ance is a crime, and may be punished as such:

Costello v. State 108 Ala 45, 18 So 820; State

v. Knapp 6 Conn 415; Jacksonville T & K W R Co. v.

Thompson 34 Fla 346, 16 So 282; Wragg v.. Penn Two

94 in n. State v. Southern Indiana Gas Co. 169

Ind 124, 81 NE 1149; Huffman V. State 21 Ind App

449, 52 NE 713; State . Chicago M & St P RCo. 77

Iowa 442, 42 NW 365; Bembe v. Anne unde! County

94 Md 321, 51 A 179; Commonwealth v. Surridge 265

Mass 425, 164 NE 480, 62 ALR 402, People. v. Jackson

7 Mich 432; State v. Kean 69 NH 122, 45 A 256; Flynn

y. Taylor 127 NY 596, 28 NE 418; Davis v. New York

14 NY 506; State v. Godwin 145 NC 461, 59 SE. 132;

Green v. Thresher 235 Pa 169, 83 A 711; Commonwealth

V. Allen 148 Pa 358, 23.4 1115; South Carolina $.B.

ae

Co. v. Wilmington C & AR Co. 46 SC 327, 24 SE 3373

State V. Wilkinson 2 Vt 480; State v. Burpee 3 Vt 1.

25 A 964; Teass v. St Albans 38 W Va 1, 17 SE 400;

Ralston M. Weston 46 W Va 544, 33 SE 326.

The duty to remove an obstruction rests pri-

marily upon the person or agency who is responsi -

ble for its existence. Weed v. Township Committee

of Hillsdale 85 A 329.

QUESTION NO. 15.

The trial court held and the appellate court

in effect tes that only an abutting J andowner

or the municipality could interfere with the relo-

cation or private taking of a street. | |

The unreasonableness of this content ion

appears in the present cause where the newspaper

company owns both sides of Fairlie Street NW and

under the trial court's ruling it has only to

obtain collusion of city officials before relocat-

ing or even taking for its own use the entire street.

The Defendants have reduced 50-foot-wide Wall

Street NW to an alley, see photos, because they

| 43

have collusion of city officials and the opposite

side of the street is owned by the Federal Reserve

Bank, hose chairman at the time of encroachment

. Was also president of the two defendant neus paper

corporations. . nek

In situations like this the courts are the

only protection which the public has. The courts

mus t intervene despite the decisions of the trial

court and the appellate court that they cannot.

Fortunately for citizens of Atlanta the courts

in the past have intervened as shown elsewhere in

this petition and have preserved the public's rights

in the streets.

CORPORATIONS ENJOY PROTECTION OF

CONSTITUTIONAL PROVISIONS

. The due process clause protects stockholders

of à corporation, it has been held in Iona-IIlinois

Sas. & Elec. Co. v. City of Ft. Dodge 85 NW 2d 28;

248 Iowa 1201, which reads: "Freedom is invaded

men property rights are ignored, and this is true

- “ when property confiscated is owned by stockholders

through a corporation as well as when it is an

44

individual's home, his livestock, or the tools by

which he earns his living; and thus it cannot be

accurately said that the Constitution no longer

protects -property we

"Legislation must apply equally to all corpora-

tions in like circumstances", Knoxville & 0. Ry Co.

v. Harris 99 Tenn 684; 42 SW 115.

There is no doubt that a corporation may not

be deprived of its property without due process of

law. Smyth v. Ames 169 U.S. 466,522,526; Kentucky

Co_v. Paramount Exch 262 U.S. 544,550; Liggett Co. v.

Baldridge 278 U.S. os.

This Court has held that although a corporation

is the creation of a State which reserves the power

to amend or repeal corporate charters, the retention

of such power will not support the taking of the

corporate property without due process of law. South-

western Tel. Co. v. Danaher 238 U.S. 482.

The equal protection clause applies to corpora-

tions. Santa Clara Co. v. Southern Pacific R.R. 118

U.S. 394.

45

3 CONCLUSION

Petitioner contends that the foregoing petition

shows that it has been deprived of its property with-

out due process of law and without equal protection

of the law by the said decisions of the Georgia

Supreme Court in violation of Section I of Amendment

XIV of the b. 5. Constitution in the many particulars

specified, and that the federal constitutional ques-

tions raised are substantial and involve matters of

grave public concern demanding the grant of the writ

of certiorari by this honorable court.

WHEREFORE, Petitioner urges that it is entitled

as a matter of absolute Constitutional right under

the pertinent sections of the United States Consti-

tution cited herein to the grant of the writ of

certiorari to the Supreme Court of Georgia and

reversal of its arbitrary, Capricious and unconsti-

tutional decisions denying it said constitutional

rights.

Respectfully submitted,

—

Gy Seals Alken

Attorney for Petitioner

Suite 1409-10 Candler Building

Atlanta, Georgia 30303

ACKNOWLEDGMENT OF SERVICE

service is hereby acknowledged and copy received

of foregoing petition for certiorari,

This January » 1971,

Counsel for Cox Enterprises, Inc,

and Atlanta Newspapers, Inc,

ii

21. Safety Of pub] ie 16

18,20 ,21,23,39

22. 5 of Powers---.... —————p 5

23. Taxing power ————g 21

24. a to Streets 2-262 13

28. Vested RI te . eee 20

Corpora t ons eee eee ——̃— — 43

Petition for cert iorari——— 1

prayer 45

Questions Presented for Review-----.... —————ʒ 4

Statement of Case and argument ———— 7

Statement of Grounds - ——2 2 22 3

CASES CITED

Page

Abell v Central vt Ry Inc 102 A 20 847, 118 Vt

l

eee ee „% „% ee 60 See ere Sees eres seer *„%%êt2 40

Acme Realty Co v Sch inas 1, 215 NY 495,

109 NE 577— —— 8 j Erte 15

Aguiar & Bello v Brock 24 F Supp 692— —19

Anderson-Prichard 01) Corp v Corp Comm

342 US 936— - — . ——p 20

Allison v Cobb County 98 Ga App 231,

103 SE 2d 195—— . — . —— 35

Anderson v Stuarts Draft Water Co 87 SE 2

756, 197 Va 36-----....... — — ——.—p — 40

Angel v Bullington 330 US 183- teeneen 29

9 v Al G Barnes Amuse Co 183 Wis 272,

97 NW 7077.——————————— 16

anten fee v Hartford Rom Cath Dio Corp I.

114 A 2d 216, 142 Conn 349 ee. +39

In ReAppro for 14 Purposes Land of

Winkelman 234 NE 20 514, 13 Ohio App

2d 125------ ——̃—— d —— . —— d 40

In re Appro. for Highway Purp 215 NE 2d

612, 6 Ohio App 2d 6 40

Arbenz v Wheeling & UR Co 33 W Va l,

10 SE 14———— . 2 2 5 4 16

a iii

363 US 346, 98 L ed 51, 74 8 Ct 92----------- 11

gende v Anne Arundel County 94 Md 321,

51 A 179———hͤUUͤ-.ò — — — 41

Birmingham v Hood McPherson Rity co 233 Ala

952, 172 So 114, 108 ALR 1140-5 16

Boule v Columbia 387 US 347, 84S Ct

1647, 12 1 Od 26 BPGecccccccccccccccccccccccce 30

Breisch v Locust Mtn Coal Co 267 Pa 546,

110 A 2642, 9 ALR 1330 -ccccccccnnccccccccccccce 17

Brooks v Henrietta Mills Co 182 NC 719,

110 SE 96 ————p—ůx—2⸗ů—ůx :éõ0:K! w 16

Brown v Roberts 55 SW 2d 9, 246 Ky 316---------- 37

Cen of Ga Ry Co v Hartley 25 Ga App 120,

103 Sk 262— ͥU '———..U—A6'.m̃ 34

Chicago St M&O Ry v Holmberg 282 US 5

City Council of Augusta v Reynolds 122 Ga

754, 60 SE 996, 106 Am St 7. ee 13

City of Shreveport v Kansas CityS&G « |

Ry Co 120 So 290, 167 La 711-2 19

City of Sturgeon v Wabask Ry Co 17 SW 2d A

616, 223 Mo App 633—-«„»«õ«c«4««õ 19

Clawson » Cent Hudson Gas & Elec Corp

208 WY 201, 63 NE 2d 12Gececccccccccccccccccc 16

Coker et al v Atlanta K & M Ry Co 123 Ga

483, 51 SE 461——.——4—-“ 222244 Fœ——— 10

Commonwealth v Allen 148 Pa 358, 23 A

L] 1S mn nnn wenn nnn nn nnn ene n ewww nn nnnee 41

Commonwealth v Surridge 265 Mass 425,

164 NE 480, 62 ALR 402 —-—W:«« 41

Costello v State 108 Ala 45, 18 So 820 41

Cow in v City of Waterloo 163 ALR 1327——— 20

Daly v Ga S & F Ry Co 80 Ga 793,

7 Sk 146 — „„ ͤũ cé 17

Davis v New York 14 NY 506 l ««««n«« 41

ex rel Dept Pub Wks v Russell 309 p 20 *

10 48 C 2d 189—————--„ͤũh«c(4ccõ? eee eee 39

Dowling v Tracy 116 Ga App 43, 156 SE 20

2. ae 35

Dygert Schenck 23 Wend NY 446.-—— 17

first Nat Bk v Tyson 133 Ala 459, 32

680 166— T—2—õ——ß VVUVUUVUUn- -——.ñ 17

Flynn v Taylor 127 NY 596, 28 NE 41 41

IV

Gidden v Lewis 137 Ga 22, 72 SE 412------------- 34

Graves v Shattuck 35 NH 257----------------- 9

Gray v Gray 34 Ga 499————-——— 33

‘Green v Thresher 135 Pa 169, 83 A 711———— 41

Harbuch v Richland Box Co et al 204 Ga 352-----.- 11

Hathorn v Natural Carbonic Gas Co 23

LRA ns 436, 12 Ann Cas 989-----------.-.......-20

Hertx Drivurself Stns v Siggins 58 A 2d

464, 359 Penn 25, 7 ALR 2d 707-----------.--..- 18

Htgginbotham v Kearse 11 M Va 264, 161 :

37, 77 ALR 1110o— . 17

Huffman v State 21 Ind App 449, 52 NE 713----+---4]

Indianapolis Life Ins co v Lundquist 57

NE 2d 338, 222, Ind 359--------..... ————— 26

lona-IIIinois Gas & Elec co v City of ‘

Ft e 85 NW 2d 28 248 Iowa 1201------------- 43

Jacksoville T & K WR Co v Thompson

A Fla 346; 16 So 282-------...--.......--.....- 41

Kentucky Co v Paramount Exch 262 US 544, 550----- 44

Knothe v Zinzer 115 A 477, 96 Conn 709----------- 37

Kesler v Dept Pub Safety 369 US 153-------.-..... 23

Knoxville and 0. Ry. Co v Harris

99 Tenn 684; 42 SW 115-------------............ 44

u— v Reardon 172 A 2d 520, 69 NJ Super

Seeeeevceeseeoeseoce CP SOO ewes ů ee ee 2 2 —— 40

Lewis v Lorenz 354 P 2d 1008, 1011,

144 Colo 23———-—-—-——————————è e—éͤbſ.⁰ 39

Lewis v Pingree Nat Bk 47 Utah 35, 151 Pp

—— 5 —— ——— ——————.9 18

Liggett Co v Baldridge 278 US 105------------.--.44

Loan Asso v Topeka Wall 655-----------........ 21

Madden v Penn Ry Co 21 Ohio C Ct 73,

11 Ohio c Dec 571-----------..-.----......-.... 37

Marietta Chair Co v Henderson 121 Ga

399 407 SE 312, 104 Am St 156, 2 Ann

Cas 83------------.. ———————— 12

McFarlane v Niagara Falls 247 NY 340, |

160 NE 391, 57 ALR 1----------.--.----.--..-... 17

McGowan v Burns 172 Or 63, 137 P2d 994--------..- 17

Memphis Street R Co v Rapid Transit Co

133 Tenn 99, 179 SW 635--------.--------.-..-.. 17

Michelson v Dwyer 158 Neb 427, 63 NW

2d 513-2 16

67, O APP» 2d 30-2 40

Millheim v Moffat Tunnel Dist 262 bs 710— 21

Moody & Wife v Davis 10 Ga 410--------- 30

Norfolk Turnpike Co v Virginia 225 US 264--...... 22

No Car v Pearce 395 US 711, 89 S ct 2072,

€3 L Od 2d 886. eee 27

O'Brien v Centra! Iron & Steel co 158

Ind 218, 63 NE G. e 17

O'Hanlin v Carter Oi] Co 54 W Va 510, 46

SE 856 ec e 15

Opdycke v Pub Ser R Co 78 NUL 576,

76 A 1032. „ 16

Overhouser v Am er Cereal co 92 Nw ’

74, 118 10% 417-5 21

People v Goodspeed 192 p 20 130, 85 ca!

App 2d Supp 821 . 39

People v Jackson 7 Mich 432———————— 41

People ex re] McCormick v Western Cold Sto

Co 123 NE 43, 11 ALR 27———— 17

Price v Travis 149 Ba 536, 140 SE 644,

77 ALR 1110 17

allway Exp Co v New York 336 US 106-............ 22

alston v Weston 46 W Va 544, 33 SE 326-----..._.

Reduction Co v Sanitary Wks 199 US 306, 318----.- 23

Reitz y Mealey 314 Us 3 3———————— 23

Richardson v Bos ton 19 How (US) 263,

16 U. eg 639-2 . 16

Rider v Porter 147 Ga 760, 95 SE 284 12

Rinaldi v Yeager 384 US 305, 86 8 Ct

. 27

Santa Clara co v Southern Pacific RR

118 US 354. 44

Silverman v Usen 128 Me 349, 147 A 421—— — 15

Smith v Bennett 365 US 708, 81 8 Ct 895,

6 1 ed 2d 39--------- „„ 38

Smyth v Ames 169 US 466, 522, 526------.......... 44

So Car v Katzenbach 383 US 301, 86 S ct

„„%ͤrͤ Wilnawendesunr dance. — ——— 32

South Carolina 8 B Co y Wilmington C A

„ 41

So Ry co v Hobbs 121 Ga 428, 49 Se 294----....... 35

316, 131 Va 830-------.----~------------------- 21

State v Burpee 65 Vt L 25 4 964------.-..-....... 42

Statezy Chicago M & St PR Co 77 Iowa

442 42 NW 365-------.. —————c 41

State v Hall 351 SW 2d 460, 463———— 39

State v Godwin 145 NC 461, 59 SE 132—————— 41

State v Kean 69 NH 122, 45 A 256 41

State v Knapp 6 Conn 418———— 2 41

State v New Eng Furn. Co 52 LRA ns 932----------- 20

State v So Ind Gas Co 169 Ind 124, 81

ye 41

State v Wilkinson 2 Vt 80-------...---..........-. 42

162 ALR 1001——————— 40

State Dept Roads y Merritt Bro Sand &

Gravel Co 144 NW 2d 180, 180 Neb 660---------.- 39

Steele v Cen of Ga Ry Co 123 Ga 237,

51 SE 438————————————— 35

Stern v Int, R Co 220 NY 284, 115 NE

759, 2 ALR 487------......... ————.—ô 16

Stillwater v Lovell 159 Okla 214, 15 p

2d 12----------...........- — . ——.— 15

Strong v Sullivan 180 Cal 331, 181 P 59,

4 ALR 343-----------.- 22-2 16

Teass v St Albans 38 W Va 1, 17SE 400---------..- 42

. of Ogden Dunes v Wildermuth 235 NE “

Tress v Pivorotto 133 A 135, 101 Conn 389-------- 37

Valparaiso v Bozarth 153 Ind 536, 28 NE 418------ 17

Weed v Township Committee of Hillsdale

85 A 329--------- ~~ eee nee een ee 42

William v Oklahoma City 395 US 458, 89

S Ct 1818, 28 1 Od 2d 0 „ . 27

Wm Lauback & Sons v City of Easton

Supra n. 5——-—————-——————— 2 40

Wolfe v City of Providence 74 A 2d 843,

77 R 1 192— .. ——— 40

Wragg v Penn Tw 94 1111nois———— 41