Transcript of Record — Seaboard Air Line Ry. v. City of Raleigh

pie a $e

-_ (24,524)

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1915.

No. 330.

SEABOARD AIR LINE RAILWAY, APPELLANT,

v8.

THE CITY OF RALEIGH AND JAMES I. JOHNSON, O. G.

KING, AND R. B. SEAWELL, COMMISSIONERS OF THE

CITY OF RALEIGH.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR

THE EASTERN DISTRICT OF NORTH CAROLINA.

INDEX

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ii INDEX.

Original. Print

Judge's certificate to bill of exceptions. .......--.+++-++++:

Judge's certificate to bill of exceptions............- dias arn

Order signing and settling bill of exceptions..........-..--

Order allowing appeal... ......---. ce ceeeee ener eer eeeeaneees

Order restoring injunction during pendency of appeal..........

Bond on appeal........-...-ceeecee cece eee e cree eee eeeerenes ur

Citation and service. ......... cece cece cece eee en eeeeteennees

Order designating record on appeal. ........----eeeeeeeeeeeees

Order transmitting record on appeal.........----+++++eeee+ és

Clerk’s certificate .. ......... cece cece eee ene e ree eeenes omnes

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8. A. L. RY. V8. THE CITY OF RALEIGH ET AL. 1

a UnITEpD STaTEs oF AMERICA,

Eastern District of North Carolina, To wit:

At a District Court of the United States for the Eastern District of

North Carolina, Begun and Held at the Court-house in the City

of Raleigh, on the 23 Day of November, A. D. Nineteen Hundred

and Fourteen (1914).

Present: The Honorable Henry G. Connor, Judge of the District

Court for the Eastern District of North Carolina.

Among others were the following proceedings, to-wit:

1 Filed June 27th, 1913.

In the District Court of the United States for the Eastern District

of North Carolina, at Raleigh.

In Equity.

Seapoarp Arr Line Raitway, Complainant,

vs.

Ciry or Rareicu and James I. Jounson, O. G. Kina and R. B.

SEAWELL, Commissioners of the City of Raleigh, Defendants.

Bill of Complaint. ©

The Seaboard Air Line Railway =e this, its bill of complaint

against the City of Raleigh and James I. Johnson, O. G. King and

R. B. Seawell, Commissioners of the city of Raleigh, and complains

and says:

1, That the complainant, Seaboard Air Line Railway, is a cor-

poration created and existing under the laws of the States of Vir-

ginia, North Carolina and other States, and having its principal

place of business in the city of Portsmouth, in the State of Virginia,

and owning and operating a line of railroad extending into and

through the State of North Carolina, and doing the general business

of a common carrier in the transportation of freight and passengers

in and through said State, and a large portion of said business is

interstate transportation.

2. That the defendant, City of Raleigh, is an incorporated town

in the State of North Carolina, in the Eastern District thereof; and

the defendant James I. Johnson, a citizen and resident of said Ci

is Mayor and Commissioner of Finance of the City of Raleigh, and

the defendant, O. G. King, a citizen and resident of said

2 City, is Commissioner of Public Safety of the City of Raleigh,

and the defendant R. B. Seawell, a citizen and resident of

said city, is Commissioner of Public Works of the City of Raleigh

| the said Commissioners constitute the governing body of said

2 SEABOARD AIR LINE RAILWAY VS.

City, with authority granted by law to enact and enforce ordinances

for the government of said city and for the control of its property,

3. That the matter in controversy in this suit exceeds, exclusive

of interest and costs, the sum or value of Three Thousand ($3,-

000.00) Dollars, and arises under the Constitution of the United

States.

4, That by an act of the General Assembly of North Carolina, at

its Session of 1835 (2 Revised Statutes, page 299) the Raleigh &

Gaston Railroad Company was incorporated for the purpose of

effecting a communication by railroad from some point in or near

the City of Raleigh to the termination of the Greensville and Roa-

noke Kailroad at or near Gaston, and for providing everything

necessary and convenient for the purpose of transportation on the

same; and the President and Directors of said company were in-

vested with all the rights and powers necessary for the construction,

repair and maintaining of a railroad, to be so located, with as many

sets of tracks as they or a majority of them should deem necessary;

and the President and Directors of said Company were authorized to

cause to be made and to make and continue all tracks whatever

necessary and expedient in order for the proper completion of said

railway.

5. That acting under the charter granted by the General As

sembly of North Carolina the incorporators of the Raleigh & Gas-

ton Railroad Company constructed and operated a line of railroad

from Raleigh, North Carolina, to Gaston, North Carolina, and con-

structed in the City of Raleigh terminals and depots for the receipt

and delivery of freight and passengers, and constructed in the said

City on Halifax Street, between Lane and North Streets, a freight

depot and warehouse, extending from Halifax Street back

3 to Salisbury Street, and constructed its tracks from the main —

line of the Raleigh & Gaston Railroad across Salisbury

Street into said depot and warehouse. pe ,

6. That about the year 1881 a cotton compress was constru

on a lot in the City of Raleigh bounded by Salisbury, Jones, Halifax

and Lane Streets, and in order to receive cotton from and deliver

cotton to said compress, and in order to serve the patrons of said

railroad and to furnish the public facilities for the receipt and de

livery of freight in carload lots, and in order to better perform its

functions as a common carrier, the Raleigh & Gaston Railroad Com-

any made application to the Board of Aldermen of the City of

Raleigh for the grant of the right, privilege and franchise to occupy

the sidewalk on the east side of Salisbury Street, between Jones and

Lane Streets, for the purpose of constructing thereon a track.

7. That by and through its Board of Aldermen, at a meeting held

on August 5th, 1881, the City of Raleigh, acting under and by

virtue of the laws of the State of North Carolina, and its charter,

then in effect, duly passed an ordinance granting to the Raleigh &

Gaston Railroad Company the right, privilege and franchise to

occupy the sidewalk on the east side of Salisbury Street, between

Jones and Lane Streets, for the purpose of running a track as will

appear from the following extract from the minutes of said meeting:

THE CITY OF RALEIGH ET AL. 3

“Upon application of John C. Winder, Gen. Supt. the Raleigh &

Gaston Railroad Company was granted permission to occupy the

sidewalk on the east side of Salisbury Street, between Jones and Lane

Streets, for the purpose of running a track.”

8. That the said ordinance was accepted by the Raleigh & Gaston

Railroad Company and pursuant to the right, privilege and franchise

thereby granted a track was laid at great expense to the said railroad

company along the said sidewalk and from the time of its completion

in 1881, to the present time, it has been constantly used by the

Raleigh & Gaston Railroad Company, and its successor and

4 assign, Seaboard Air Line Railway, as a public track for the

general delivery and receipt of freight for intrastate and in-

terstate transportation, and on account of the convenience of location

it has been and is now largely used by the merchants of the City of

Raleigh and by the public generally and has been since its comple-

tion, and is now an important and necessary factor in the conduct

of the business of the Raleigh & Gaston Railroad Company, and the

Seaboard Air Line Railway as common carriers,

9. That the Raleigh & Gaston Railroad Company, acting upon

the authority granted by the City of Raleich through its Board of

Aldermen, with the knowledge of the municipal authorities of said

city, proceeded to exercise the right, privilege and franchise so

granted, and constructed said track; and the Raleigh & Gaston Rail-

road Company, and its successor and assign, Seaboard Air Line Rail-

way, have maintained and operated said track since 1881, and the

City of Raleigh, by the acts and conduct of its officers and repre-

sentatives in knowinely permitting and acquiescing in the use and

occupation of said sidewalk, is estopped from asserting that no ordi-

nance has been passed, or that the necessary steps have not been

taken to effectuate the grant to the said Raleigh & Gaston Railroad

Company of the right, rivilege and franchise to use said sidewalk.

10. That under and by virtue of the laws of the State of North

Carolina, the Raleigh & Gaston Railroad Company has been merged

and consolidated with the Seaboard Air Line Railway; and the Sea-

board Air Line Railway, as the successor and assign of said Raleigh

& Gaston Railroad Company, is the owner of and entitled to all

the property, rights, privileges and franchises belonging to said

Raleigh & Gaston Railroad Company, including the right, privilege

and franchise of maintaining and operating a track on the side-

walk on the east side of Salisbury Street, between Jones and Lane

Streets. in the City of Raleigh.

11. That on June 10th, 1913, the Commissioners of the City of

Raleigh, James I. Johnson, O. G. King and R. B. Seawell,

5 at a regular meeting, over the protest of the Seaboard Air

Line Railway, passed the following ordinance:

“Upon the hearing of the matter of the removal of the spur track

of railroad used by the Seaboard Air Line Roilwav and situated on

the street and sidewalk on the east side of North Salisbury Street

in the City of Raleigh. hetween Jones and Lane Streets, it is

“Ordered that the Chief of Police of the City of Raleigh notify

the said Seaboard Air Line Railway to remove said spur track, cross

4 SEABOARD AIR LINE RAILWAY VS.

ties and rails and all other material constituting said track from said

street and sidewalk within thirty days from the date of this order.

“Tt is further ordered that if the said Seaboard Air Line Railway

shall fail to remove said spur track within the said thirty days, that

the Commissioner of Public Works of the City of Raleigh be, and

he is hereby authorized, empowered and directed to forthwith re

move said spur track, cross ties, rails and all other material from

said street and sidewalk at the cost and expense of the said Seaboard

Air Line Railway.

“This 10th day of June, 1913.”

A copy of the said ordinance was served on the Seaboard Air Line

Railway on June 10th, 1913.

12. That by the enactment of the ordinance granting the Ralei

& Gaston Railroad Company the right to occupy the sidewalk on the

east side of Salisbury Street, and by the conduct as set forth, herein,

of the City of Raleigh, through its officers and representatives, and

by the acceptance of said ordinance and by the construction and

maintenance and use of a side track along said sidewalk for public

purposes, with the knowledge and acquiescence of the minicipal av-

thorities, a valid and binding contract has been created between the

City of Raleigh and the Raleigh & Gaston Railroad Company, and

its successor and assign, Seaboard Air Line Railway, which is im-

paired by the ordinance of June 10th, 1913, in violation of Section

10, Article 1, of the Constitution of the United States; and the com-

plainant hereby expressly sets up and relies upon said Article and

Section of the Constitution of the United States in protection of its

rights, and against the enforcement of said ordinance.

13. That the enforcement of said ordinance will operate as an in-

terference with interstate commerce in violation of the provisions of

the Constitution of the United States, Section 8, Article 11, confer-

ring upon Congress the power to regulate interstate com-

6 merce, and in violation of the acts of Congress passed pur- |

- suant to the power so granted; and the complainant hereby

expressly sets up and relies upon said Article and Section of the

Constitution of the United States in protection of its rights, and

against the enforcement of said ordinance.

- 14. That the enforcement of said ordinance will result in taking

the property of the Seaboard Air Line Railway without due proces

of law, in violation of the Constitution of the United States, Section

1, Article XIV; and the complainant hereby expressly sets up and

relies upon said Article and Section of the Constitution of the United

States in protection of its rights, and against the enforcement of said

ordinance.

15. That the said track constructed on the sidewalk of Salisbury

Street is a great convenience to the merchants of the City of Re

leigh and to the public generally, and results in securing for the Sea-

board Air Line Railway freight that would otherwise to transported

by its competitors, and the amount of revenue, of which it would be

deproved by the enforcement of said ordinance, would in time

greatly exceed the sum of Three Thousand ($3,000.00) Dollars; and

by the enforcement of said ordinance the Seaboard Air Line Rail

THE CITY OF RALEIGH ET AL. 5

way will be deprived of its property and property rights of a value

greater than Three Thousand ($3,000.00) Dollars. .

16. That the exercise of the right, privilege and franchise which

“will be destroyed by the enforcement of said ordinance is of a value

and benefit to the Seaboard Air Line Railway in excess of the sum of

Three Thousand ($3,000.00) Dollars; and the enforcement of said

ordinance will impair the franchise of the Seaboard Air Line Rail-

way and the value of its property to its irreparable damage.

17. That by virtue of :.s charter and the general laws of the State

of North Carolina, the Raleigh & Gaston Railroad Company had the

power, with the assent of the municipal authorities of the

7 City of Raleigh, to occupy the said sidewalk for the purpose

of running a track thereon, the said power being specifically

granted by the Acts of the General Assembly of North Carolina,

Session 1871-2, Chapter 38, Section 29, Subsection 6, as brought

forward and amended by the Code Sections 1957 and 1982 and Re-

visal of 1905, Sections 2566 and 2567, as follows:

“Every railroad corporation shall have power: (6) To construct

their road across, along or upon any stream of water, water course,

street, highway, plank road, turnpike or canal, which the route of

its road shall intersect or touch, but the company shall restore the

stream or water course, street, highway, plank road and turnpike

road thus intersected or touched to its former state or to such state

as not unnecessarily to have impaired its usefulness. Nothing in

this act contained shall be construed to authorize the erection of any

bridge or other obstruction across, in or over any stream or lake

navigated by steam or sail boats, at the place where any bridge or

other obstruction may be proposed to be placed, nor to authorize the

construction of any railroad not already located in, upon or across

any street in any city without the assent of the corporation of such

city.”

That this statute has been construed and held by the highest

Court of the State to apply to branch and spur tracks not a part of

the main line, but used in connection therewith, and to authorize the

construction of such tracks in the streets of a municipal corporation,

with the consent of the municipal authorities.

18. That the said side track was constructed and has remained in

said street and has been maintained pursuant to the powers conferred

by the Acts of the General Assembly of North Carolina, Session of

1871-2, Chapter 38, Section 29. Subsection 6, Code of 1883, Sec-

tions 1957 and 1982, and Revisal of 1905, Sections 2566 and 2567,

with the assent of the City of Raleigh; and the enforcement of the

ordinance enacted by the Commissioners of the City of Raleigh on

June 10th, 1913, will impair the obligations of the contract thereby

created, in violation of Section 10, Article 1 of the Constitution of

the United States, the provisions of which said article and Section

are again set up and relied upon by the complainant in protection

of its rights, and against the enforcement of said ordinance.

19. That the maintenance and operation of the said side track in

Salisbury Street, between Jones and Lane Streets, does not

8 unnecessarily impair its usefulness, because the full width of

-

Si ree Sets Hel. SiGOWSalk ee eS Wes)

Te

Ne

6 SEABOARD AIR LINB RAILWAY Vs.

open and free, and the said track occupies only the sidewalk on th

east side of the street, on which the complainant is the sole abuttin

property owner; and the physical conditions are such that the unol

structed street and the sidewalk on the west side thereon meet all th

requirements of the public for the use of Salisbury Street, betwee

Jones and Lane Streets.

20. That the lapse of time, more than thirty-one (31) years, dw

ing which the said track has been continuously natitahied and ope!

ated along the said sidewalk has created in the Raleigh & Gasto

Railroad Company, and its successor and assign, Seaboard Air Lin

Railway, the right to retain said track, which right constitutes

contract, subject to the protection of Section 10, Article 1, of th

Constitution of the United States, and the enforcement of the ord

nance of June 10th, 1913, will result in impairing the obligation

of said contract, in violation of the provisions of the Constitution «

the United States, the protection and benefit of which said Article an

Section of said Constitution the complainant hereby expressly sets w

and relies upon.

Wherefore, the complainant, Seaboard Air Line Railway pray

that the Court grant unto it a writ of injunction, commanding th

said City of Raleigh, and all persons claiming to act under its au

thority, direction or control, and commanding James I. Johnson

O. G, King and R. B, Seawell, Commissioners of the City of Raleigh

and all persons claiming to act under their authority, direction o

control, absolutely to desist and refrain from attempting to enfore

the said ordinance of June 10th, 1913, and to desist and refrain fron

removing or attempting to remove the track of the Seaboard Ai

Line Railway from the sidewalk of Salisbury Street, in the City o

Raleigh, between Jones and Lane Streets, and to desist from, in any

manner, hindering or obstructing the complainant, or its agent:

servants, or employees, in the use of said track and from in any man

ner interfering with said track, until such time as the Cour

9 shall appoint and direct an order herein; and that upon suel

hearing the writ herein prayed for be made and confirme

until the final determination of this suit, and that upon the said in

junction may be made perpetual.

JAMES H. POU,

MURRAY ALLEN,

Attorneys for Complainant,

Seaboard Air Line Railway.

NortH CaRoLiNna,

Wake County:

W. T. Huntley, being duly sworn, deposes and says that complain

ant, Seaboard Air Line Railway, is a corporation; and that he is it

Agent at Raleigh, N. C.; that he has read the foregoing bill of com

plaint; and that the same is true of his own knowledge, except as te

matters therein stated upon information and belief: and, as to those

matters, he believes it to be true.

W. T. HUNTLEY.

eS eee

THE CITY OF RALEIGH ET AL. 7

Subscribed and sworn to before me this 27th day of June, 1913.

C. T. McDONALD,

Notary Public, Wake County.

My Commission expires the 1st day of February, 1914.

Marshal’s Return.

{Received the within Bill of Complaint at Raleigh, N. C., June

27th, 1913, and executed at Raleigh, N. C., June 27th, 1913, upon

the City of Raleigh by delivering a copy of within Bill of Complaint

to Jas, 1. Johnson, Mayor, and upon Jas. I. Johnson Commissioner,

0. G, King, Commissioner and R. B, Seawell, Commissioner, by de-

livering a copy to each. ‘

CLAUDIUS DOCKERY,

U. 8. Marshal,

By R. W. WARD,

Office Deputy Marshal.

Marshal’s cost $8.00.

10 Filed June 27th, 1913.

Unitep Srares oF AMERICA,

Eastern District of North Carolina:

District Court at Raleigh, Fourth Circuit.

SEaBoaRD Air Line Ratiroap

against

City or RaLeicu, James I. Jounson, O, G. Kin, and R. B.

SEAWELL, Commissioners of the City of Raleigh.

Prosecution Bond.

Know ail men by these presents, that we, Seaboard Air Line Rail-

way, as principals, and Fidelity and Deposit Company of Md., as

surety, are held und firmly bound unto the defendants in the above

entitled action, in the sum of two hundred dollars, to the payment

of which we bind ourselves firmly by these presents. Sealed with our

seals and dated this 27th day of June, 1913.

The condition of the above obligation is such, that whereas the

plaintiff in the above named cause has brought an action against the

said defendants therein; Now, if the said plaintiff shall prosecute

said action with effect, or, in case it fail therein, shall well and truly

pay all such costs as shall be awarded and recovered against the said

plaintiff in said action, then the above obligation is to be void, other-

wise it is to remain in full force and effect.

SEABOARD AIR LINE RAILWAY,

By MURRAY ALLEN, Attorney. [SEAL. ]

FIDELITY & DEPOSIT CO, OF MD.,

By R. W. WINSTON, [SEAL, ]

-Attorney-in-Fact.

8 SEABOARD AIR LINE RAILWAY V3.

11 Unirep States oF AMERICA,

Eastern District of North Carolina:

District Court at Raleigh, Fourth Circuit.

Equity Subpena.

The United States of America to City of Raleigh and James I. John.

son, O. G. King, and R. B, Seawell, Commissioners of the City of

Raleigh, Greeting:

We command you, aad every of you that you appear before the

Judges of our District Court of the United States of America, for the

Eastern District of North Carolina, at the office of the Clerk of said

Court, in the City of Raleigh, in said District, twenty days from the

date hereof and answer the bill of complaint of Seaboard Air Line

Railway, a citizen and resident of the States of Virginia and North

Carolina, filed in the Clerk’s office of said Court, in said City of

Raleigh, then and thereto receive and abide by such pagperet and

Decree as shall then or thereafter be made, upon paid of judgment

being pronounced against you be default.

To the Marshal of the Eastern District of North Carolina to Exe

cute.

Witness the Hon. Edward D. White, Chief Justice of the Supreme

Court of the United States, at Raleigh, in said District, the 27th day

of June, 1913, and in the 137 year of the Independence of the United

States.

Issued the 27th day of June, 1913.

H. L, GRANT,

Clerk United States District Court.

The within named defendants are notified that, unless they enter

their appearance in the Clerk’s Office of said District Court at

Raleigh, and file their answer or other defense, on or before the 20th

day after service hereof, excluding the day of service, the bill filed

herein will be taken as confessed and a decree entered accordingly.

Ii. L, GRANT,

Clerk United States District Court.

12 Marshal’s Return.

Received the within Equity Subpena at Raleigh, N. C., June 27th,

1913, and executed June 27th, 1913, at Raleigh, N. C., upon the

City of Raleigh, by delivering a copy of the within Equity Subpena

to Jas. I. Johnson, Mayor, and upon Jas. I. Johnson, Commissioner,

O. G. King, Commissioner, and R. B. Seawell, Commissioner by de-

livering a copy to each.

CLAUDIUS DOCKERY,

U. S. Marshal,

By R. W. WARD,

Office Deputy Marshal.

Marshal’s costs $8.00.

THE CITY OF RALEIGH ET AL. 9g

13 = In the District Court of the United States for the Eastern

District of North Carolina, at Raleigh.

In Equity.

SeapoarD Air Line Raitway, Complainant,

vs.

City or Raveicn and James I. Jonnson, O. G. Kina, and R. B, -

SEAWELL, Commissioners of the City of Raleigh, Defendants.

Notice.

To the City of Raleigh and James I. Johnson, Mayor and Commis-

sioner; O. G. King, and R. B. Seawell, Commissioners, defendants

in the above entitled suit:

You are each of you, are hereby notified that complainant Sea-

board Air Line Railway, will apply to Hon. Henry G. Connor, Judge

of the District Court of the United States for the Eastern District

of North Carolina, at Chambers, in Wilson, North Carolina, on Mon-

day, the 7th day of July, 1913, at ten o’clock, A. M., or as soon there-

after as it can be heard, for an injunction and restraining order, en-

joining and restraining you, and each of you, from putting into

effect, or attempting to put into effect, a certain resolution, in the

form of and called an ordinance, adopted by the Commissioners of the

City of Raleigh, on the 10th day of June, 1913, relative to the re-

moval of the side track of complainant, situate on the east side of

North Salisbury Street, between Jones and Lane Streets, in the City

of Raleigh, N. C.

Said application for an injunction and restraining order

14 will be based upon and supported by complainant’s bill of

complaint filed in the above entitled suit, copies of which are

attached to the subpeenas issued in this suit,

Respectfully,

SEABOARD AIR LINE RAIL-

WAY, Complainant,

By JAMES H. POU,

MURRAY ALLEN,

Counsel.

Raleigh, N. C., June 27th, 1913.

Marshal’s Return.

Received the within Notice to Defendants at Raleigh, N. C., June

27th, 1913, and executed June 27th, 1913, upon the City of Raleigh

by delivering a copy of the within Notice to Defendants to Jas. I.

Johnson, Mayor, and upon Jas. I. Johnson, Commissioner, 0. G.

2—330

10 SEABOARD AIR LINE RAILWAY VS.

King, Sono. by dot and R. B. Seawell, aap of the City of

Raleigh, N. C., ivering a to each.

’ PELAUDIUS DOCKERY,

U. 8. Marshal,

By R. W. WARD,

Office Deputy Marshal.

Marshal's cost + 08.

15 “ Piled July 8th, 1913.

In the District Court for the United States for the Eastern District of

Carolina, at Raleigh.

In Equity.

Seapoarp Arr Line Raitway, Complainant,

vs.

Crry or Raeion and James I. Jonnson, O. G. Krvo, and R. B.

SEAWELL, Commissioners of the City of Raleigh, Defendants.

Injunction.

This cause coming on to be heard upon motion of complainant

for an injunction restraining and enjoining the defendants from at-

tempting to enforce an ordinance of the City of Raleigh of June

10th, 1913, directing the removal of the track of the complainant

from the sidewalk on the East side of Salisbury Street between Jones

Street and Lane Streets in the City of Raleigh and restr-ining and

enjoining the defendants from removing or attempting to remove

said track until the hearing of this cause, and the City of Raleigh

and James I. Johnson, O. G. King, and R. B. Seawell, Commissioners

of the City of Raleigh, defendants, by their counsel, consenting to

an order awarding such injunction until the hearing.

Now, therefore, by consent of the parties to this action, it is

ordered that you the said City of Raleigh and James I. Johnson, 0.

G. King and R. B. Seawell, Commissioners of the City of Raleigh,

defendants herein, your agents and servants and all persons claim-

ing to act under your authority, direction and control, be and you are

hereby specifically restrained and enjoined from attempting to en-

force the ordinance of the city of Raleigh adopted June 10th,

16 1913, directing the removal of the track of the complainant,

Seaboard Air Line Railway from the sidewalk on the East side

of Salisbury Street between Jones Street and Lane Street in theCityof

Raleigh, and you are hereby specially restrained and enjoined from

removing or attempting to remove said track and from in any man-

ner hindering or obstructing the complainant or its agents, servants

or employees in the use of said track until the hearing of this cause

on — Rule Day of this Court, it being the 6th day of October,

1913.

It is, by consent, further ordered that the defendants may have

THE CITY OF RALEIGH ET AL. 1l

until ee 1st, 1913, in which to file their answers to the bill of

complaint.

It is further ordered that a copy of this order certified under the

hand and seal of this Court be served on each of the defendants to

be restrained and enjoined thereby.

Dated at Raleigh, N. C., this 8th day of July, 1913.

[SEAL. ] . G. CONNOR,

Judge of the United States District Court,

Eastern District of North Carolina.

Marshal's Return.

Received July 8th, 1913, and executed same day at Raleigh, N. C.,

by delivering copy of within Injunction each to James I. Johnson,

~ Soe for City of Raleigh, James I. Johnson, Commissioner, O. G.

King, Commissioner, etc. and R. B. Seawell, Commissioner, etc. all

of the city of Raleigh, N. C.

CLAUDIUS DOCKERY,

U. 8. Marshal.

Fees $8.00.

17 Filed July 8th, 1913.

In the United States District Court for the Eastern District of North

Carolina, at Raleigh.

In Equity.

Szasoarp Arr Line Rartway

vs,

Crry or Rareicn, James I. Jonxson, O. G. Krxa, and R. B.

SEAWELL, Commissioners,

It is agreed that the above matter which was set for hearing before

His Honor, Henry G. Connor, Judge of the United States District

Court fot the Eastern District of North Carolina, on July 7th, 1913,

at Wilson, N. C., may be heard at Raleigh, N. C., and the notice of

the hearing at Wilson will be treated as notice of the hearing at

Raligh. N.C., on July 7, 1913.

JAMES H. POU,

MURRAY ALLEN,

Attorneys for Complainant.

JOHN W. HINSDALE, Jr.,

Attorney for Defendants.

12 SEABOARD AIR LINE RAILWAY VB.

18 In the District Court of the United States, Eastern District

. of North Carolina, at Raleigh.

In Equity.

Seapoarp Air Line Rartway, Complainant,

vs.

Crry or Raretcn and James I. Jonnson, O. G. Kina, and R. B,

SEAWELL, Commissioners of the City of Raleigh.

Order Continuing Injunction,

Thi: cause coming on to be heard on this 6th day of October,

1913, upon the injunction issued on the 8th day of July, 1913:

Now, by consent, it is ordered that the said injunction be con-

tinued to the 25th day of November, 1913.

H. G. CONNOR,

Judge United States District Court, Eastern

District of North Carolina,

19 Filed Sept. 10, 1913. }

In the District Court of the United States for the Eastern District of |

North Carolina, at Raleigh. |

In Equity.

Seapoarp Air Line Rattway, Complainant,

vs.

Crry or Rareicn and James I. Jounson, O. G. Kina, and R, B.

SEAWELL, Commissioners of the City of Raleigh, Defendants.

Answer.

The City of Raleigh and James I. Johnson, O. G. King, and R. B.

Seawell, Commissioners of the City of Raleigh, defendants in the

above entitled cause, answering the bill of complaint filed herein

say : :

1. That the allegations of Paragraph One of the bill of Complaint

are admitted.

2. That the allegations of Paragraph Two of the Bill of Complaint

are admitted.

3. That the allegations of Paragraph Three of the Bill of Com

plaint are denied.

4. That the allegations of Paragraph Four of the Bill of Com

plaint are admitted.

5. That the allegations of Paragraph Five of the Bill of Com

plaint are admitted.

6. That the allegations of Paragraph Six of the bill of Complain

THE CITY OF RALEIGH’ BT AL. 18

are denied, except that it is admitted that about the year 1881 a cot-

ton compress was erected »n the site named and for the purposes

named, and that permission was requested fee: said Rai , of

the Board of Aldermen of the City of Raleigh to use the side-

20 ~—walk on the east side of Salisbury Street between Jones and

Lane Streets, for the purpose of constructing thereon a side-

track.

7. That the allegations of Paragraph Seven of the Bill of Com-

plaint are denied, except that it is admitted that the Board of Alder-

men of the City of Raleigh granted the Raleigh & Gaston R. R. Co.,

ission to occupy the sidewalk on the East side of Salisbury

treet, between Jones and Lane Streets for the purpose of erecting a

track ; and it is specifically denied that the Board of Aldermen of

said City of Raleigh had the right under the then existing charter of

said City to grant such permission for such use of said street.

8. That it is admitted that the Raleigh & Gaston R. R. Co. built

a sidetrack on said Street as alleged in Paragraph Eight of the Bill

of Complaint and — as herein admitted, the allegations of Para-

graph Eight of the Bill of Complaint are denied.

9. That it is admitted that the sidetrack was laid on said Street,

but except as herein admited, the allegations of Paragraph Nine of

the Bill of Complaint are denied.

10. That it is admitted that the Raleigh & Gaston R. R. Co. has

merged into the Seaboard Air Line Ry. Co., and that the said Sea-

board Air Line Ry. Co. has succeeded to its rights and privileges, but

it is denied that any right, privilege or franchise existed at the time

of said merger, or at any other time prior to or since said merger,

as to the use of the sidewalk in question.

11, That the allegations of Paragraph Eleven of the Bill of Com-

plaint are admitted.

12. That the allegations of Paragraph Twelve of the Bill of Com-

plaint are denied.

13. That the allegations of Paragraph Thirteen of the Bill of

Complaint are deniet

14. That the allegations of Paragraph Fourteen of the

21 Bill of Complaint are denied.

15, That the allegations of Paragraph Fifteen of the Bill

of Complaint are denied.

16. That the allegations of Paragraph Sixteen of the Bill of Com-

plaint are denied.

17. That the allegations of Paragraph Seventeen of the Bill of

Complaint are denied; and it is s ifically denied that Sub-section

6 of Section 29, of Chapter 138 of the acts of the General Assembly

of 1871-2 or Code Sections 1957 and 1982, or Revisal 1905 Sections

2566 and 2567 apply to or confer any authority, right or privilege

upon the Raleigh & Gaston R. R. Co., or its successor.

18. That the allegations of Paragraph Eighteen of the Bill of

Complaint are denied.

19. That the en of Paragraph Nineteen of the Bill of

Complaint are denied.

414 SEABOARD AIR LINE RAILWAY VS.

20. That the allegations of Paragraph Twenty of the Bill of

Complaint are denied.

Further answering the Bill of Complaint of the plaintiff the de

fendants say:

1. That the Board of Aldermen of the City of Raleigh did not

have the power and authority to grant permission to the Raleigh &

Gaston Railroad Company to occupy the sidewalk on Salisbury St

between Jones St. and Lane St. without legislative authority.

2. That at the time the said side track was laid on Salisbury Street

a cotton compress was being operated upon the lot adjacent to said

side track and the same was built to afford shipping facilities to this

compress, that said compress has not been used in many

vears and has been torn down and removed, and that for

the past several years the Seaboard Air Line Railroad

has continued to use the said side track for purposes of storing empty

ears and of loading and unloading freight, thereby blocking

22 the street and depreciating and injuring the property on the

West side of said Street and across from said side track.

3. That said side track is in the heart of the City of Raleigh and

within one block of the Capitol Square, and just to the rear of the

Supreme Court Library. which is upon the adjoining block, that since

the establishment of said sidewalk the City of Raleigh has more than

doubled in population and the propertv adjacent to said side track

and to the North of the same has greatly improved and grown, that

the said Salisbury St. has heen extended and widened to the North

of said side track and at the present time the same is a nuisance to the

citizens of Raleigh living to the North of said side track, who us

Salisbury Street in going to and from the business part of the City of

Raleigh.

4. That within the past two vears, the Seaboard Air Line Railway,

upon the site of the old cotton compress and immediately to the East

of said sidetrack and 2 to 7 feet helow the said side track, has erected

a large and commodi-us freight warehouse with an approach to the

same by wagons from the Fast on the side of the building opposite ta

said side track. with two tracks between the said depot and the

line of the sidewalk in question, and in addition thereto has com

structed several team tracks to the North of said Freight warehoue

affording ample facilities for loading and unloading freight. That

the side track on Salisbury St. is not necessary to the proper condut

of the railroad of the conduct of the plaintiff and in fact is not used

by it except on occasions for the unloading of freight, being mor

often used for the storing of empty freight cars.

5. That the Seaboard Air Line Railwav has a side track adjacent

to the side track in question, which could be used for loading

unloading freight, which it has never connected with its other line

Wherefore defendants and each of them pray that the it

23 junction issued against them herein be dissolved; that the

plaintiff be ordered to remove the side track from the side

walk on Salisbury Street hetween Jones and Lane Streets and for

such other and further relief as they mav be entitled to.

JOTIN W. HINSDALE, Je

CHAS. U. HARRIS.

|

THE CITY OF RALEIGH ET AL. 15

Nortu CAROLINA,

Wake County:

James I. Johnson, being duly sworn, deposes and says, that the de-

fendant herein, the City of Raleigh, is a municipal corporation and

that he is its Mayor and Commissioner of Finance; that he has read

the foregoing answer and that the same is true to his own knowledge,

xcept as to matters therein stated upon information and belief and

is to those matters he believes it to be true.

JAS. I. JOHNSON.

Subscribed and sworn to before me, this 10th day of Sept. A. D.,

1913.

MILLIARD MIAL, C. S. C.

4 Filed Dec. 19th, 1913.

n the District Court of the United States for the Eastern District of

North Carolina, at Raleigh.

In Equity.

Seanoarp Arr Line Rattway, Complainant,

vs.

ary oF RaLercn and James I. Jounson, O. G. Krno, and R. B.

Seawe yt, Commissioners of the City of Raleigh, Defendants.

Agreed Facts.

It is agreed by the complainant and defendants to submit this

natter upon the admissions in the pleadings, such statutes as the

arties shall offer and as shall be admitted in evidence and the follow-

ng facts:

1. That when the side track was constructed about the year 1881,

t was used as a public track in connection with the cotton compress

n the cotton season and was used for the purpose of loading and un-

pading freight for the public without additional compensation to

he railroad for its use, and for any other purpose for which the rail-

oad desired to use it. And that since the year 1906 the cotton com-

ress has not been used, and since that time the said track has been

sed exclusively for loading and unloading freight, and storing

mpty cars,

2. That the minutes of the meeting of the Board of Aldermen

f the city, of Raleigh on August 6th, 1881, contained the following

ntry:

“Upon application of John C. Winder, Gen. Supt., the Raleigh &

aston Railroad Company was granted permission to occupy the side-

walk on the East side of Salisbury street, between Jones

5. and Lane Streets, for the purpose of running a track.”

3. That after the said action by the Board of Aldermen of

he city of Raleigh, the Raleigh & Gaston Railroad Company built a

rack on said sidewalk and the said track has since its construction

een used by the Raleigh & Gaston Railroad Company and its sue-

board Air Line Railway, as a public track for the delivery

16 SEABOARD AIR LINE RAILWAY V3.

and receipt of freight for intrastate and interstate transportation and

it has been and is now used by the merchants of the City of Raleigh

and by the public, and the said track on account of its location is

convenienct for the purpose for which it is used.

4. That the said track has been maintained and operated by the

Raleigh & Gaston Railroad Company and Seaboard Air Line Rail-

way since 1881, and the construction and use of said track has been

known to and permitted by the officers and representatives of the

City of Raleigh, prior to the — day of May, 1911, when the Board

of Aldermen ordered the removal of said track,

5. That the right to maintain said track as it is now placed on

Salisbury Street and use it for the purpose of loading and unloading

freight is of a value to the Seaboard Air Line Railway exceeding

$3,000.00 exclusive of interest and costs.

6. That the Seaboard Air Line Railway is the sole owner and

occupant of the block in the city of Raleigh bounded on the West by

Salisbury Street, on the North by Lane Street, on the East by Halifax

Street and on the South by Jones Street, and is the sole owner and

occupant of the block in the city of Raleigh next adjoining to said

block and to the North thereof, bounded as follows: On the west by

Salisbury Street, on the North by North Street, on the East by Hali-

fax Street and on the South by Lane Street, and the two blocks are

used by the Seaboard Air Line Railway for the purpose of its busi-

ness exclusively.

26 7. That Salisbury Street is 43 feet in width from curb to

curb at the point at which this track is located, and in addi-

tion thereto a sidewalk is located on the West side of said street, 13

feet in width, and the part of the sidewalk on the East occupied by

this track is 10 feet, and the width of the street and the sidewalk on

the West side are available for public use and are used by the public.

8. That in constructing a new freight station, about two years

ago, it was necessary for the Seaboard Air Line Railway to make an

excavation at the corner of Jones and Salisbury Streets, of about 8

feet, the said excavation extending to the North along Salisbury

Street, and the tracks constructed in connection with said freight

station are in this excavation and the freight station is between these

tracks and Halifax Street and they cannot be used as team tracks

and the other team tracks of the Seaboard Air Line Railway are on

Lane Street which is one block North of Jones Street, a distance of

420 feet, and the said tract on Salisbury Street extends from Jones

Street to Lane Street.

9. That the southern end of the said track on Salisbury Street is

one block North of the state capitol, a distance of 420 feet. - :

10. That with the track where it is there is no sidewalk on the

East side of Salisbury Street between Jones Street and Lane Street

for use b estrians.

" — JAMES H. POU,

MURRAY ALLEN,

Attorneys for Complainant.

J. W. HINSDALE, Jr.,

CHAS. U. HARRIS,

DOUGLASS & DOUGLASS,

Attorneys for Defenda

THE CITY OF RALEIGH ET AL. 17

27 In the District Court of the United States for the Eastern

District of North Carolina, at Raleigh.

In Equity. No. 354.

Seapoarp Arr Line Rartway, Complainant,

vs.

City oF Raveicu and James I. Jounson, O. G. Kine, and R. B.

SEAWELL, Commissioners of the City of Raleigh, Defendants.

Additional Facts Agreed.

In the above entitled cause it was agreed at the hearing that the

following should be added to the facts agreed:

It is agreed by counsel for the complainant and defendants that

the charter of the City of Raleigh was revised and consolidated in

Chapter 98 of the Private Acts of 1856 and 1857, Section 58, of

which is as follows: and which was in force Aug. 5, 1881:

“That the Commissioners shall cause to be kept clean and in

repair streets, sidewalks and elleys. They may establish the width

and ascertain the location of those already provided and lay out and

open others and may reduce the width of all of them”.

That in the charter of the City of Raleigh now in force, Article V,

Section 1, the Commissioners of the City of Raleigh are given power:

“To direct, control and prohibit the laying of railroad tracks, tarn-

outs, and switches in the streets, avenues, and alleys of the city,

unless the same shall have been authorized ‘by ordinance, and to

require that all railroads, turnouts, and switches shall be constructed

as not to interfere with the drainage of the city and with the ordi-

nary travel and use of the streets, avenues, and alleys in said city,

and to construct and keep in repair suitable crossings, at the inter-

section of streets, avenues and alleys, and ditches, sewers, and cul-

verts where the board of commissioners shall deem it necessary.

H. G. CONNOR,

Judge of the District Court of the

nited States for the Eastern Dis-

trict of North Carolina.

JOHN W. HINSDALE, Jr.,

tao ge Complainant.

MURRAY ALLEN,

Counsel for Defendant.

8—330

18 SEABOARD AIR LINE RAILWAY VS.

28 Filed December 15th, 1914.

In the District Court of the United States for the Eastern District of

North Carolina, at Raleigh.

In Equity. No, 354.

Seapoarp Air Line Ry. Co., Plaintiff,

vs.

Tue Crry or Rareicu and Others, Defendants.

Bill filed by plaintiff seeking an injunction restraining the City

of Raleigh and the individual defendants, Commissioners, from en-

forcing an ordinance requiring plaintiff to remove its track from the

side walk, being a part of Salisbury Street, Raleigh, N. C.

gg, agen James H. Pou, of Raleigh, N. C., for Plaintiff.

John W. Hinsdale, Jr., Charles U. Harris, Douglas & Douglas,

of Raleigh, N. C., for Defendants.

Connor, District Judge:

The cause was submitted upon the bill, answer, and statement of

facts agreed upon by the parties. Plaintiff is a Virginia Corporation

and successor to the property, rights and franchises of the

29 Raleigh & Gaston Railroad Company, chartered by the Gen-

eral Assembly of North Carolina, at its Session of 1835. The

City of Raleigh was the Southern terminus of said railroad. Pur.

suant to the provisions of the charter, the said company constructed

a track from Gaston, N. C., to Raleigh, N. C. and constructed ter-

minals and depots, in said city, for the receipt and delivery of freight

and passengers, including a freight depot and a warehouse on Hali-

fax Street between Lane and North Streets, extending from Halifax

Street to Salisbury Street, extending its tracks from the main line of

the Raleigh & Gaston Railroad across Salisbury Street into said depot

and samen During the year 1881, a cotton compress was con-

structed on a lot in the City of Raleigh, bounded by Salisbury, Jon

Halifax and Lane Streets and, for the pu of delivering to, an

receiving cotton from said warehouse, and to serve the patrons of

the said Rail Road Company, and to furnish the public facilities

for the delivery of cotton in car load lots, and to better perform its

functions as a common carrier, the Raleigh & Gaston Rail Road Com-

pany made application to the Board of Aldermen of Raleigh for the

grant of the right, privilege or franchise, to occupy the side walk on

the East side of Salisbury Street between Jones and Lane Streets for

the purpose of constructing a track thereon. Said Board of Aldermen

on August 5, 18/1, adopted the following resolution, or ordinance:

“Upon application of John C. Winder, General Superintend-

ent, the Raleigh & Gaston Railroad Company was granted permis-

sion to occupy the side walk on the east side of Salisbury Street, be-

tween Jones and Lane Streets, for the purpose of running a track.”

THE CITY OF RALEIGH ET AL. 19

When the track was constructed, pursuant to the permission

granted by said ordinance, it was used as a public track in con-

nection with the cotton compress in the cotton season, and was used

for the purpose of loading and unloading freight for the

30 public, without additional compensation to the railroad for

its use, and for any other purpose for which the railroad com-

pany desired to use it. Since the year 1906, the cotton compress has

not been used. Since that date the said track has been used exclu-

sively for loading and unloading freight and storing empty cars

engaged in inter and intrastate traffic. It has been, and is now

used by the merchants of the city of Raleigh and by the public and

on account of its location, is convenient for the said pu . The

right to maintain said track, as it is now placed and used on Salis-

bury Street, is of value to plaintiff, exceeding $3,000.00, exclusive

of cost herein.

The track has been maintained and operated by the Raleigh &

Gaston Railroad Company and the plaintiff, its successor, since

1881, with the knowledge and permission of the officers and repre-

sentatives of the City of Raleigh. The plaintiff is the sole owner and

occupant of the block of land, in said city bounded on the west by

Salisbury Street, on the North by Lane Street, on the East by Halifax

Street and on the South by Jones Street, and is the sole owner and

occupant of the block in said City next adjacent to said block and

to the north thereof, bounded on the west by Salisbury Street, on the

north by North Street, on the east by Halifax Street and on the

south by Lane Street. The two blocks are used by the plaintiff for

the purpose of conducting its business exclusively. Salisbury Street

is 43 feet wide between curbs at that point at which the track is

located on the side walk and, in addition thereto, there is located

a side walk on the west side of the street 13 feet wide, the portion of

the side walk on the east side of the Street otcupied by plaintiff's

track, is 10 feet wide; the street and the side walk on the west side

thereof, are available to, and are used by the public. In con-

31 structing a new freight station two years ago, it was neces-

sary for the Seaboard Air Line Ry. Company to make an ex-

cavation at the corner of Jones and Salisbury Streets of about 8 f

extending northwards along Salisbury Street, the tracks construct

in connection with said freight station are in this excavation and

the freight station is between these tracks and Halifax street. They

can not be used as team tracks, and the other team tracks of plain-

tiff, which are on Lane Street, which is one block north of Jones

Street, a distance of 420 feet; the said track on Salisbury Street ex-

tends from Jones Street to Lane Street. The Southern end of the

track on Salisbury Street is one block north of the State Ca itol, a

distance of 420 feet. With the track as it is now laid and use , there

is no side walk on the east side of Salisbury Street, between Jones

and Lane Streets, for use by pedestrians. Within the two years last

past plaintiff has built on the site upon which the compress stood,

and immediately to the east of said side track, a commodious freight

warehouse, with an approach to the same b wagons from the east

_and the side of the building opposite said side track with two tracks

20 SEABOARD AIR LINE RAILWAY Vs.

‘between said depot, and the east line of the side walk in questio

and, in addition thereto, has constructed several team tracks to tl

north of said warehouse.

At their meeting, on June 10, 1903, the defendants, Commissione:

of the City of Raleigh, after hearing the matter, and against tk

protest of plaintiff, wegen a resolution ordering the removal of tl

track constructed and maintained by plaintiff on the side walk, o

the east side of Salisbury Street, between Jones and Lane Street

being the track described in the resolution, or ordinance of Augu

5, 1881. By saia resolution, the Commissioner of Public Works «

the City of Raleigh was directed if plaintiff failed to do s

32 to remove the said track. Certain Private Laws are set ou

or referred to, in the Bill and are to be considered as in ev

dence. A preliminary injunction was issued and the cause heat

upon the prayer for a permanent injunction restraining defendan

from removing said track, or otherwise enforcing said resolution «

ordinance of June 10, 1913. It is conceded that the plaintiff is e

titled, by succession, to such rights, privileges and franchises ¢

vested in the Raleigh & Gaston Railroad Company by virtue of i

charter, and amendments thereto, and the ordinance of August.

1881, or which it may, upon the facts herein set out, have otherwi:

acquired. While it is settled by abundant authority, that Courts «

Equity will not, save in exceptional cases, enjoin the enforcement, :

execution of the criminal law, or of city ordinances imposing fin

and penalties for their violation, it is also settled that, where righ

of property are involved, and the enforcement of such ordinance

violate vested rights, injunctive relief will be awarded, especial

where such enforcement will work irreparable injury. In Owen

boro vs. Cumberland Telephone Co., 230 U. S. 58, the Court ei

joined the enforcement of an ordinance revoking a grant of a fra

chise to occupy the streets of a city. The power of the court to enjoi

the enforcement of an ordinance regarding railroad tracks in street

was recognized in A. C. L. R. R. Co. vs. Goldsboro, 232 U. S., 54

The refusal on the part of the defendant to obey the ordinance su

jects it to indictment for a misdemeanor (Rev. 3702). If no oth

mode of enforcement was prescribed by the ordinance, the Cou

would find no authority for interfering. The validity of the resol

tion, or ordinance, could be tested by way of defence to an indi¢

ment. It is conceded that defendant's officer, unless restrained, wi

proceed summarily to remove the track. If plaintiff's contentio

upon the merits of the controversy, are sustained, it would see

that its right should be protected by injunction. It is cor

33 ceded that plaintiff is a public utility corporation and suc

right as it has acquired to occupy the side walk is used in tl

prosecution of its business as a common carrier. The Charter of tl

City of Raleigh, at the date of the ordinance, of August 5th, 188

and since that time, confers upon its Commissioners power to kee

clean, and in good repair, the streets side walks and alleys, to esta

lish the width and ascertain the location of those already provide

and lay out and open others and may reduce the width of all «

them. It may be conceded that this language confers upon t

: THE CITY OF RALEIGH ET AL. 21

governing Board the usual powers granted to municipal authorities

in regard to the use of the streets—including the power to grant to

uasi public corporations, such as the plaintiff, the right to a reason-

aie use of the public streets, not inconsistent with the right of the

public. Griffin vs. R. R., 150 N. C. 312. It may be further con-

ceded that, when such right of user is granted, within the power of

such authorities, and such grant is accepted and acted upon, a

property right vests in the grantee of which is may not be deprived,

otherwise than by due process of law. Owensboro vs. Cumberland

Telephone Co., supra, where these propositions are decided and the

authorities cited. Notwithstanding these concessions two questions

remain open for decision. Did the ordinance of 1881 construed in

the light of then existing conditions, and the reasons inducing its

passage, grant to plaintiff's predecessor in title, a right to be enjoyed

in perpetuity to appropriate to its use, by locating and maintaining a

track thereon, to the exclusion of all others, the side walk for any

and all purposes, connected with the operation of its freight traffic,

and if so, was such grant within the power of the Board of Commis-

sioners to make. Mr. Justice Lurton, in the Cumberland Telephone

Company case, supra, says: “The grant, by ordinance, to an incor-

porated telephone company, its successors and assigns, of the

34 right to occupy the streets and alleys of a city, with ite poles,

and wires, for the necessary conduct of a public telephone

business, is a grant of a property right in perpetuity, unless limited

in duration by the grant itself or as a consequence of some limitation

imposed by the general law of the State, or by the corporate powers

of the city making the grant.”

The power to grant a reasonable use of the streets of Raleigh to a

public utility corporation, is sustained in Moore vs. Power Co., 163

N. C. 300. The title to the soil in the streets of the city is in the

State, but the power to subject them to the use of the minicipality

and its inhabitants, is in its governing board, supra. It is a well

settled rule of construction, applied to grants of public property,

which has been applied to grants of the use of streets that, “Where

special street privileges and franchises are granted, which interfere

with the authority of the municipality to control its streets and

with free use thereof by the public, the grant must be construed

strictly in favor of the public and against the grantee.” 27 Am. &

Eng. Enc. 154. The soundness, if not necessity, for this salutary

rule, is manifest. The resolution, or ordinance, does not use appro-

priate or usual, words found in grants, as distinguished from a li-

cense. In the Cumberland Telephone Co. case, supra, the right to

erect and maintain poles and wires is “granted”. So in Pike’s Peak

Power Co. vs. Colorado Springs, 105 Fed. 1, the right to use the

streets for the purpose of stringing wires was “granted” to the Com-

pany. In construing the language of the ordinance of 1881, for

the purpose of ascertaining the intention of the parties, the pur-

pose for which the permission to occupy the side walk was given

should be kept in view. A cotton compress had recently been erected

on the Raleigh & Gaston R. R. Company. It is proper to take no-

ee.

22 SEABOARD AIR LINE RAILWAY VS.

tice of the fact that in moving bales of cotton either to or

35 from the compress, the distance and physical conditions, are

_of essential importance in regard to cost and convenience in

operating the compress. Again, as is well known, the compress

would ordinarily be operated only a portion—not exceeding one

third of the year. The cost of laying a spur, or side track for the

distance required, on the side walk was, as compared with its value

small. It is doubtful whether the considerations which induced

the Commissioners to give to the Raleigh & Gaston Railroad Com- |

pany permission to occupy, by laying its track over the side walk,

for the purpose of enabling it to successfully operate the compress

would have been sifficient to move them to make a grant of a fran-

chise to do so, for all purposes, in perpetuity. Certainly the terms

used, so appropriate to confer a temporary, revocable, license, and so

inappropriate to vest, by grant, a perpetual and exclusive use of the

side walk, are sufficient to raise, in the mind, a reasonable doubt as

to the intention of the parties which, upon the principle uniformly

applied in such cases, should be solved in favor of the public for

whose use the property in the soil was held. Minturn vs. Larue,

23 How. 435. The principle is clearly stated by Mr. Justice Clif-

ford, in Holyoke Co. vs. Lyman, 15 How. 500 (512): “Wherever

privileges are granted to a corporation, and the grant comes under

revision in the Court, such privileges are to be strictly construed

against the corporation and in favor of the public and nothing passes

but what is granted in clear and explicit terms”.

The language of the Court in Water Company vs. Knoxville, 200

U. S. 22, strongly states the principle and expressly applies it to city

ordinances affecting the rights of the public in streets. Mr. Justice

Harlan, after citing many cases, says: “It is true that the cases to

which we have referred involved, in the main, the construc-

36 tion of legislative enactments. But the principles they an-

nounce apply with full force to ordinances and contracts by

municipal corporations in respect to matters which convern the

public. The authorities are all agreed that a municipal corporation,

when exerting its functions for the general good, is not to be shorn

of its powers by implication. If, by contract, or otherwise, it may,

in particular circumstances, restrict the exercise of its public powers,

the intention to do so must be manifested by words, so clear as not

to admit of two different or inconsistent meanings.” It will be ob

served that in Owensboro vs. Cumberland Telephone Company,

supra, relied upon by plaintiff, the language of the ordinance, under

which the corporation claimed the franchise, is free from ambiguity.

The Telephone Company was “granted the right to erect and main-

tain its poles in the streets.” It is also provided that “nothing in

the ordinances should be construed as an exclusive right to said

company to erect poles, ete.,” and, by Section 4 of the ordinance,

certain duties and obligations are assumed by the corporation, con-

stituting a valuable consideration, enuring to the benefit of the citi-

zens of the city for the grant of the franchise—thus giving to the

ordinance a contractual character, within the power of the Commis

sioner to make. It will be also noted that Judge Lurton, in sus

THE CITY OF RALEIGH ET AL. 23

taining the ordinance says: “Nor did it undertake to grant an ex-

clusive right. Express power to grant an exclusive right has gen-

erally been held essential.” He says that, as the grant was not ex-

elusive the Court was not called upon to deal with that question.

If it be conceded that, by the ordinance of August 5th, 1881, the

Commissioners undertook to grant to the Raleigh & Gaston Railroad

Company, and its successors, the exclusive right, in perpetuity, to

occupy and maintain a track, for all such purposes as it, or they

deemed proper in the prosecution of their usiness as common

37 _ carriers, the side walk on the eastern side of Salisbury Street,

the question is presented whether they were vested, by the

charter of the city, which constituted the grant of legislative author-

ity in that respect, with the power to do so. Conceding that the

power granted the Commissioners, in regard to the use of the streets,

includes the power to “regulate” such use, and giving to this language

the interpretation given it in Cumberland Telephone Company

case, supra, and in Moore vs. Power Com any, supra, the question

is yet open, whether the power claimed - plaintiff is conferred.

In State vs. R. R., 141 N. C. 736 (53 S. E. 290), the Supremen

Court of this State held: “In absence of an express power in the

charter of a city to grant a permanent easement in a street, a license

granted to a railroad company to lay tracks and operate trains in a

street can not be construed as a grant of a permanent easement.”

After citing authorities, it is said: “The general rule to be extracted

from the authorities is that the legislative power vested in mjnicipal

bodies, is something which can not be bartered away in such man-

ner as to disable them from the performance of their publie fune-

tions.” While the Supreme Court of this State has, in a number of

cases, sustained the power of the Commissioners, or other governing

body of municipalities, to grant to public service corporations the

right to place their tracks, poles, wires, pipes, ete., in, under and

along the public streets, no case has been found in which the power

has been claimed to grant an exclusive and perpetual use of a street,

or side walk, to such corporations. Griffin vs. R. R., 150 N. C. 312,

relied on by plaintiff, falls for short of sustaining such power. There,

the Commissioners granted the right to the defendant to lay its

track along the street—there is no suggestion that the track occu-

nied the entire street, to the exclusion of pedestrains, or per-

38 _sons passing in vehicles. The plaintiff, as an abutting owner,

sought to enjoin the defendant from exercising the privilege

granted. For manifest reasons, and upon well settled principles,

the Court refused to grant the injunction. The grounds upon which

that, and the cases cited in the opinion of the Chief Justice, are

, are not applicable here. ‘That the occupation of the side

walk by plaintiff's track excludes all other persons from passing over

the side walk, otherwise than by walking over the track, when not

appropriated by plaintiff's freight cars, is conceded. The extent

of the claim asserted by plaintiff, for all practical purposes, vests in

it the absolute and exclusive use of the side walk. ‘This claim is

upon an ordinance adopted by the Commissioners giving “per-

mission” to its predecessor in title, to occupy the side walk, without

he

any limitation in respect to time, and without any valuable con-

sideration, to support a contract, or the use of any contractual lan-

guage. The permission was given to meet a condition, and promote

a purpose, temporary in character, which has ceased to exist. If

plaintiff's contention is sustained, the entire side walk, for 420 feet

on one of the principal streets of the capital city of the State, in a

short distance of the State House and other public buildings, ex-

tending from Jones to Lane Streets, is a ropriated to the exclusive

use of the plaintiff. The claim is upon the Janguage of an

ordinance adopted thirty years ago, to meet a temporary condition,

during which time the city has increased very greatly in popula-

tion. The claim invites careful consideration and its successful

maintenance demands strong reasons, or controlling authority. Giv-

ing to the numerous decided cases, and the language used by the

Courts, due weight, in the light of the facts upon which they are

based, I am constrained to reach the conclusion, that by a fair con-

struction, the ordinance of August 5, 1831, interpreted in the

39 light of the condition under which it was used, and the

— which the parties had in view, does not vest in the

plaintiff the property right in the use of the side walk for which

it contends, and that, if such construction is permissible, the Com-

missioners were not vested by the legislature with power to make

such exclusive, perpetual grant of the side walk to the Raleigh &

Gaston Rail Road Company, which prevents the present governing

Board. in which the power is vested and upon which the duty is

im , to control and regulate the use of the side walk for the

benefit of the public, from making and enforcing the ordinance

of June 10, 1913. Plaintiff relies upon the provisions of the State

Statute in force at the date of the ordinance of 1881, giving to all

railroad companies the right to construct their tracks across, along

or upon any street * * * which the route of their road shall in-

tersect or touch “provided the company shall restore the street, thus

intersected, or touched, to its former state, or, to such state as not

unnecessarily to have impaired its usefulness.” Rev. 2567. Con-

ceding, for the reasons assigned, pro hac vice, that the plaintiff has

the nights and provileges conferred by this Section, free from the

limitation .n regard to “the assent of the corporation”, it is com

fronted with the duty imposed by the statute to restore the * @2

thus intersected or touched to its former state, ete. It is doubtful

whether the language of the section can be construed to authorir

the exclusive appropriation of the street. The side walk is a por

tion of the street appropriated to the use of pedestrians. To com

strue the grant of the right to construct its foad “across, along, o

upon” a street, always of much greater width than a rail road

and the cross ties, as a grant of the right to occupy the entire street,

or side walk, is not permissible in the light of the recognized rule

of construction of such grants of power. How is it

40 to to restore the street to “its former state’, if the track ocet

pies its entire width. Statutes must be given a

construction. :

Plaintiff further contends that, by reason of the long time elapsing

24 SEABOARD AIR LINE RAILWAY VS.

THE CITY OF RALEIGH ET AL. 25

since the occupation of the side walk, with the knowledge and ac-

uiescence of the defendants, they are estopped from asserting a

eins to the use of the side walk, for the use of the pubiic, and for

this contention quotes the language of Judge Dillon: “If the

municipality has the power to grant such right, or franchise, and a

corporation believing and assunring that it has the consent or grant

of the municipality, has with the knowledge of the proper municipal

authorities, proceeded to exercise the right, or franchise, and has con-

structed, maintained and operated its works and appliances in the

city streets, the municipality will, in a proper case, be estopped. by

the acts and conduct of its officers, and representatives in knowingly

rmitting and acquiescing in the use and occupation of the streets

~~ asserting the invalidity of the grant of the franchise, at least so

far as its failure to pass on ordinance, or take the steps necessary to

effectuate the grant.” Mun. Corp. 1242. The difficulty with which

laintiff is met, in invoking the principle thus announced, is found

in the absence of the power in the corporation to grant the alleged

right or franchise. If the _— existed, the right is granted—if it

did not exist, the plaintiff has, at all times, maintained a nuisance

by an unlawful obstruction of the side walk and it is clear that the ;

municipality is never estopped from abating a public nuisance. Con-

struing the ordinance of August 5, 1881, as a revocable license, the

plaintiff lawfully occupied the side walk until such license was re-

voked and of course no estoppel can accrue, under this view. Plain-

tiff, in another form, asserts the right to continue the occupation of

the side walk by averring that, by reason of the lapse of time since

the passing of the ordinance, a grant will be presumed. This,

under our ee system, by which title is acquired by lapse

of time, is but a plea of the statute of limitations, and is met

by the language of the Court in Turner vs. Commrs., 127 N. C, 153.

“As to streets * * * and other property which the' city may

hold in trust for the public, without power to alternate, it is true that

no statute of limitations can run.” Moose vs. Carson, 104 N. C., 431,

The occupation of the side walk, under the license was

not adverse until the ge of the ordinance of June 10, 1913. To

the suggestion that the occupation of the side walk on the eastern

side of Salisbury Street, does not unnecessarily impair the usefulness

of the Street, because there is a space of 43 feet between curbs, and

13 feet side walk on the western side walk, it is sufficient to say that

the control of the streets, in these respects, is committed to the Board

of Commissioners of the City and not to the Courts. If the Board

has the power to pass the ordinance of June 10, 1913, requiring the

plaintiff to remove the track from the side walk, it is beithes the

province, nor within the power of the Court to question its wisdom,

r propriety. It may not be improper, however, to say that, in the

ight of the facts agreed upon and physical conditions of which it is

mpossible to be ignorant, and the contention seriously made, and

ly pressed, by plaintiff, the wisdom of the action of the Commis-

loners for the preservation of the rights of the public committed to

heir care, is very manifest. The questions presented and argued

re, in many respects, of first impression in this State, and their cor-

4—330

26 SEABOARD AIR LINE RAILWAY VS.

rect solution of much interest to the public and public service corpora-

tions, whose business requires the use of the lic streets. I concur

in the opinion of the Supreme Court that “The City clearly possesses

the statutory right to assent to the use of the street by the railroad

vanes © his is ofter a most essential power, necessary to be used

or the benefit of the people of the city.”

42 I am further of the opinion that, in the absence of an ex-

ress legislative grant, the terms of which are free from doubt

or ambiguity, the municipal authorities are not authorized to grant

to a public utility corporation a franchise to occupy and appropriate

the exclusive use of a street or side walk to be enjoyed in perpetuity.

Such power was not granted to the Board of Commissioners of the

City of Raleigh by the charter existing at the time the resolution, or

ordinance, giving permission to the Raleigh & Gaston Rail Road

Company to occupy the side walk on Salisbury Street was adopted,

August Sth, 1881.

The only relief sought being injunctive, the plaintiff’s Bill will

be dismissed and the defendants will recover their cost.

Ii. G. CONNOR,

United States District Judge.

December 11, 1914.

43 Filed December 15, 1914.

In the District Court of the United States for the Eastern District of

North Carolina, at Raleigh.

In Equity. No, 354.

Seasoarp Air Line Rarttway, Complainant,

vs.

Crry or Raetcu and James I. Jonnson, O. G, Kino, and R. B,

SEAWELL, Commissioners of the City of Raleigh, Defendants.

Final Decree.

This cause coming on to be heard upon the bill of complaint, an-

swer and statement of facts agreed upon by the parties, and being

heard, and it appearing to the Court that the only relief sought is

injunctive and the Court being of opinion that the complainant is

not entitled to such relief,

Now, therefore, it is ordered, adjudged and decreed that the bill

of complaint be dismissed and the costs of this suit be paid by the

complainant.

H. G. CONNOR,

Judge of the District Court of the United States

for the Eastern District of North Carolina.

THE CITY OF RALEIGH ET AL. 27

44 Filed Dec. 29th, 1914.

In the District Court of the United States for the Eastern District of

North Carolina, at Raleigh,

In Equity. No, 354,

Seapoarp Arr Ling Ramtway, Complainant,

vs.

City or Ravercn and James I. Jounson, O, G. Kina, and R, B.

SEAWELL, Commissioners of City of Raleigh, Defendants,

Bill of Exceptions,

To the decree rendered by the Court the complainant, Seaboard

Air Line Railway, in due form and in apt time and in full com-

pliance with the rules in that respect of the said District Court ex-

cepted and tendered this, its bill of exception-, and asked that it be

allowed, signed and sealed, and it is allowed, signed and sealed ac-

cordingly.

ad H. G. CONNOR, Judge. [seat.]

To the decree rendered by the Court the complainant, Seaboard

Air Line Railway, in due form and in apt time and in full com-

pliance with the rules in that respect of the said District Court ex-

cepted upon the following grounds, to-wit: _

1. Because the United States District Court for the Eastern Dis-

trict of North Carolina erred in dismissing the bill of complaint and

denying the complainant the injunctive relief prayed for, for that

the enforcement of the ordinance of the City of Raleigh orderin,

the removal of the track of the complainant from the street an

sidewalk on the east side of north Salisbury Street in the City

45 of Raleigh between Jones and Lane Streets. will impair the

obligation of a valid and binding contract between the City

of Raleigh and the complainant in violation of Section 10, Article

1, of the Constitution of the United States, which section and article

were expressly set up and relied upon by complainant in protection

of its rights and against the enforcement of said ordinance,

2. Because the said Court erred in dismissing the bill of complaint

and denying the complainant the injunctive relief prayed for, for

that the enforcement of the said ordinance will operate as an inter-

ference with interstate commerce in violation of the rovisions of

the Constitution of the United States, Section 8, Article II, con-

ferring upon Congress the power to regulate interstate commerce,

and in violation of the acts of Congress passed pursuant to the power

80 granted, which section and article were expressly set up and relied

upon by complainant in protection of its rights and against the en-

forcement of said ordinance,

3. Because the said Court erred in dismissing the bill of complaint

and in denying the complainant the injunctive relief prayed for, for

28 SEABOARD AIR LINE RAILWAY V8.

that by virtue of its charter and the general laws of the State of

North Carolina, the Raleigh & Gaston Railroad Company, prede-

cessor of complainant, had the power, with the assent of the munici-

pal authorities of the City of Raleigh to occupy the sidewalk on the

east side of north Salisbury Street between Jones and Lane Streets

in the City of Raleigh, for the purpose of running a track thereon,

the said power being specifically granted by the acts of the General

Assembly of North Carolina, Session 1871-2, Chapter 38, Section 29,

Subsection 6, as brought forward and amended by the Code, See-

tions 1957 and 1982, and Revisal of 1905, Sections 2566 and 2567,

as follows:

“Every railroad corporation shal] have power: (6) to construct

their road across, along or upon any stream of water, water course,

street, highway, plank road, turnpike or canal, which the route of

its road shall intersect or touch, but the company shall re

46 store the stream or water course, street, highway, plank road

and turnpike road thus intersected or touched to its former

state or to such state as not unnecessarily to have impaired its use

fulness. Nothing in this act contained shall be construed to authorize

the erection of any bridge or other obstruction across, in or over any

stream or lake navigated by stream or sail boats, at the place where

any bridge or other obstruction may be proposed to be placed, nor

to authorize the construction of any railroad not already located in,

upon or across any street in any city without the assent of the cor-

poration of such city.”

That the said track was constructed and has remained in said

street and has been maintained pursuant to the powers conferred by

the said acts of the General Assembly of North Carolina, with the

assent of the City of Raleigh, and the enforcement of the ordinance

enacted by the Commissioners of the City of Raleigh ordering the

removal of said track will impair the obligation of the contract

thereby created in violation of Section 10, Article 1 of the Constite

tion of the United States, the provisions of which article and section

were expressly set up and relied*upon by complainant in protection

of its rights and against the enforcement of said ordinance.

4. Because the said Court erred in dismissing the bill of com

laint and in denying the complainant the injunctive relief prayed

or, for that the lapse of time, more than 31 vears during which the

said track has been continuously maintained and operated along the

said sidewalk has created in the Raleigh & Gaston Railroad Com

pany and its successor and assign, Seab/ard Air Line Railway, com

plainant in this suit, the right to retain said track which right com

stitutes a contract, subject to the protection of Section 10, Article 1,

of the Constitution of the United States, and the enforcement of

said ordinance ordering the removal of said track will result in im

pairing the obligations of said contract in violation of the said pre

visions of the Constitution of the United States, the protec

47 tion and benefit of which said Article and Section of the

Constitution, the complainant expressly set up and relied

upon.

5. Because the said Court erred in dismissing the bill of

THE CITY OF RALEIGH ET AL, 29

plaint and in denying the complainant the injunctive relief prayed

for, for that it appears from the admissions in the pleadings and the

facts agreed that said track was placed in Salisbury Street and has

remained there under and by virtue of a contract, the obligations

of which will be impaired by the enforcement of the ordinance

ordering its removal, in violation of Section 10, Article 1, of the

Constitution of the United States, which Section and Article were

expressly set up and relied upon by the complainant.

6. Because the Court erred in holding that the complainant’s

claim is based upon the language of an ordinance adopted thirty

years ago to meet a temporary ‘condition, for that it appears from

the admissions in the pleadings and the facts agreed that the track

was constructed for a permanent purpose, that when the track was

constructed pursuant to the permission granted in the ordinance of

the City of Raleigh, adopted August 5, 1881, it was used as a public

track in connection with the cotton compress of complainant in the

cotton season and was used for the purpose of loading and unload-

ing freight for the public and for any other purpose for which the

railroad company desired to use it.

7. Because the Court erred in holding that the ordinance of the

City of Raleigh of August 5, 1881, does not vest in complainant the

property right in the use of said side walk for which it contends,

and that, if such construction is permissible, the commissioners were

not vested by the legislature with the power to make such exclusive,

rpetual grant of the sidewalk to the Raleigh & Gaston Railroad

mpany, which prevents the wage governing board, in which

the power is vested and upon which the duty is imposed, to control

and regulate the use of the sidewalks for the benefit of the public

from making and enforcing the ordinance of June 10, 1913,

48 for that the ordinance of August 5, 1881, granted permission

to occupy the sidewalk for general railroad purposes in per-

petuity and the acceptance of the grant and the expense tuourvel ia

the construction of the said track created a valid and binding con-

tract between the City of Raleigh and the Raleigh & Gaston Railroad

and its successor, Seaboard Air Line Railway, to maintain its track

in the said street in perpetuity, and for that the right to construct

and maintain its tracks in the streets of the City of Raleigh was

given the Raleigh & Gaston Railroad Company by the act of the

legislature of worth Carolina, with the assent of the City of Raleigh,

and such assent was given by the ordinance of A

V acquiescence in the occupancy of the side

all purposes by the Raleigh & Gaston Railroad Co

successor, Seaboard Air Line Railway, and for that

80 SEABOARD AIR LINE RAILWAY V8.

stitution of the United States, Section 10, Article 1, which was spe-

cially set up and relied upon by complainant.

8. Because the said Court erred in holding that the right to oc-

cupy the street was not given by the act of the legislature of North

Carolina because said act provided that the street occupied by a track

must be restored to its former state, for that the statute provides that

the company shall restore the street to its former state or to such

state as not unnecessarily to have impaired its usefulness, and the

eaid street has been restored to such state as not unnecessarily to

have impaired its usefulness, and the portion of the street occupied

was expressly designated by the ordinance of Aug. 5, 1881, and such

portion of the street has been continuously occupied since the time for

general railroad purposes with the knowledge and consent of

49 the municipal authorities until the ordinance of June 10, 1913,

was adopted. The facts agreed show that Salisbury Street

is 43 feet in width at this point, that there is located on the west side

a sidewalk 13 feet in width, and the portion of the sidewalk on the

east side occupied by the complainant’s track is 10 feet wide, and

that the street and the sidewalk on the west side thereof are available

to and are used by the public. It further appears that complainant

is the sole abutting property owner along the east side of Salisbury

Street for the entire length of said track.

9. Because the said Court erred in holding that the City of Raleigh

is not estopped to deny that it has given its assent to the occup/ation

of Salisbury Street by the Raleigh & Gaston Railroad Company and

its successor, Seaboard Air Line Railway, for that the railroad com-

panies having the right to occupy the street with the assent of the

City of Raleigh, and with the knowledge of the proper municipal

authorities having proceeded to exercise the right and having con-

structed, maintained and operated its track in Salisbury Street for

general railroad purposes, the City of Raleigh is estopped from assert-

ing that it has not given its assent to such use of the street.

10. Because the Court erred in holding that the assent of the City

of Raleigh to the occupancy of said street will not be presumed after

the lapse of so many years, and in holding that under the statutory:

system of North Carolina, this is but a plea of the statute of limita-

tions, for that, as the complainant contended, the assent of the City

of Raleigh would be presumed by reason of the occupancy of the

street by the railroad for a long period of years for general railroad

purposes under such circumstances as to amount to a claim of

right to so occupy it, and for that the City of Raleigh having power

to grant the right to occupy the street, such grant is presumed where

the right has been exercised for a period of more than twenty year.

11. Because the said Court erred in holding that the ques

50 tion of whether the usefulnees of Salisbury Street is unnece*

sarily impaired is for deterrr nation by the commissioners of

the City of Raleigh, and that the wisdom of their action is manifest,

for that, it is for the Court to say whether the usefulness of the street

is not unnecessarily impaired.

12. Because the Court erred in holding that in the absence of ex-

press legislative grant, the terms of which are free from doubt

_and made a part of the record.

THE CITY OF RALEIGH ET AL. 31

ambiguity, the municipal authorities are not authorized to grant to

a public utility corporation a franchise to occupy and appropriate the

exclusive use of a street or sidewalk to be en joyed in perpetuity and

that said power was not granted to the commissioners of the city of

Raleigh by the charter existing at the time of the resolution, or

ordinance, giving permission to the Raleigh & Gaston Railroad Com-

pany to occupy the sid-walk on Salisbury Street was adopted, August

5th, 1881.

13. Because the decree of the Court is against the law and equity

of the case and against the admission and facts agreed.

14. Because in the admissions in the pleadings and the facts

agreed, the complainant was entitled to injunctive relief against the

enforcement of the ordinance of the city of Raleigh of June 10, 1913,

as prayed for in the bill of complaint.

And the complainant tendered the foregoing its bill of exception

and asked that it be allowed, signed and sealed, and it is allowed,

signed and sealed accordingly.

H. G. CONNOR, Judge. [SEAL. ]

And now in furtherance of justice and in order that right may be

done, the complain-t tenders and presents the foregoing as its bill of

exceptions to the decree of the Court in this case, and prays that the

same may be settled and allowed and signed and seal by the Court

JAMES H. POU,

MURRAY ALLEN,

Counsel for Complainant.

51 Settled, allowed, signed and sealed, this 26th day of De- -

cember, 1914.

H. G. CONNOR, Judge. [SEAL.]

Service Accepted.

Service accepted with copy, this 29th day of December, 1914.

JOHN W. HINSDALE, Jr.,

Attorney for Defendants.

$2 SEABOARD AIR LINE RAILWAY VS.

52 Filed Dec. 29, 1914.

In the District Court of the United States for the Eastern District of

North Carolina, at Raleigh.

In Equity. No. 354.

Seanoarp Arr Line RAtiway, Complainant,

vs.

Tue Crry or Raveton and James I. Jonnson, O. G. Kina, and R. B.

SEAWELL, Commissioners of City of Raleigh.

Petition for Appeal.

To the Honorable H. G. Connor, District Judge:

The above named Seaboard Air Line Railway, feeling aggrieved

by the decree rendered and entered in the above entitled cause on

thr 15th day of December, A. D., 1914, does hereby appeal from

said decree to the Supreme Court of the United States for the reasons

set forth in the assignment of errors filed herewith, and it prays that

its appeal be allowed and that citation be issued as provided by law,

and that a transcript of the record proceedings and documents, upon

an br esid decree was based, duly authenticated, be sent to the Su-

preme Court of the United States, sitting at Washington, D. C., under

the rules of such court in such cases made and provided.

And your petitioner further prays that the proper order relating

_to the security to be required of him be made.

JAMES H. POU,

MURRAY ALLEN,

Counsel for Seaboard Air Line Railway, Appellant.

53 Filed December 29th, 1914.

In the District Court of the United States for the Eastern District of

North Carolina, at Raleigh.

In Equity. No. 354.

Seanoarp Arr Line Rariway, Complainant,

vs.

Tue Crry or Rateian and JAMES I. Jounson, O. G. Krxe, and R. B.

SEAWELL, Commissioners of City of Raleigh, Defendants.

Order Allowing Appeal.

On motion of Murray Allen, Esq., solicitor and counsel for com-

plainant, it is hereby ordered that an appeal to the Supreme Court of

the United States from the decree heretofore filed and entered he

be, and the same is hereby allowed, and that a certified transcript

THE CITY OF RALEIGH ET AL. 33

the record, testimony, exhibits, stipulations, and all a be

forthwith transmitted to the Supreme Court of the United States.

It is further ordered that the bond on appeal be fixed at the sum of

$1,000.00 the same to act as a supersedeas bond also as a bond for

costs and damages on appeal.

Dated December 26th, 1914.

H. G. CONNOR,

District Judge of the District Court of the United States

for the Eastern District of North Carolina.

54 In the District Court of the United States for the Eastern

District of North Carolina, at Raleigh.

In Equity. No. 354.

SEapoarp Air Line Ry., Complainant,

vs.

City or Raeicn, James T. JOHNSON, etc., Defendants.

Order Restoring Injunction During the Pendency of Appeal.

This cause coming on to be heard this 26th day of December, 1914,

upon the application of the Seaboard Air Line Ry. for an appeal to

the Supreme Court of the United States, and said appeal having been

allowed, it is ordered that the injunction issued in this cause enjoin-

ing and restraining the city of Raleigh, James I. Johnson, Mayor and

Commissioner, O. G. King and R. B. Seawell, Commissioners of the

city of Raleigh from putting into effect an ordinance adopted on the

10th day of June, 1913, relative to the removal of the side track of

the Seaboard Air Line Ry., appellant, on the Eastern side of north

Salisbury Street, between Jones and Lane Streets in the city of

Raleigh, N. C., be restored during the argger of the appeal, upon

the said Seaboard Air Line Ry., appellant, giving bond in the sum

of $1,000.00 and the Clerk, upon the giving of the said bond, is

directed to stay the mandate of this court until further order.

It is further ordered that, upon the giving of said bond, the City of

Raleigh, and James I. Johnson, 0. G. King and R. B. Seawell, Com-

missioners of the City of Raleigh, defendants herein, their agents

and servants and all persons claiming to act under their authority

direction or control, be and they are hereby specially restrain

and enjoined from attempting to enforce the ordinance of

55 ‘the City of Raleigh, adopted June 10th, 1913, directing the

removal of the track of the complainant, Seaboard Air Line

Railway, from the sidewalk on the East side of Salisbury Street be-

tween Jones Street and Lane Street in the city of Raleigh, and they

are hereby specially restrained and enjoined from removing or at-

tempting to remove said track, and from in any manner hindering

or obstructing the Seaboard Air Line Railway, or its agents, servants

or employees in the use of said track during the pendency of said

* H. G. CONNOR,

Judge of the District Court of the United States

_ for the Eastern District of North Caroling =

sr ramen aceasta eterna

34 SEABOARD AIR LINE RAILWAY VS.

56 Filed December 29, 1914.

In the District Court of the United States for the Eastern District of

North Carolina, at Raleigh.

In Equity. No. 354.

Seapoarp Arr Line Rarmway, Complainant,

vs.

Tue City or Ratetcu and James I. Jounson, O. G. Krva, and

R. B. SeawEL, Commissioners of City of Raleigh, Defendants.

Assignment of Errors.

The Seaboard Air Line Railway, appellant in the above entitled

cause, in connection with its petition for appeal, herein presents and

files therewith its assignment of errors, as to which matters and

things it says that the decree entered herein on the 15th day of De

cember, 1914, is erroneous, to-wit:

1. Because the United States District Court for the Eastern Dis-

trict of North Carolina erred in dismissing the bill of complaint and

denying the complainant the injunctive relief prayed for, for that

the enforcement of the ordinance of the City of Raleigh, ordering

the removal of the track of the complainant from the street and side-

walk on the east side of north Salisbury Street in the City of Ra-

leigh between Jones and Lane Streets, will impair the obligation of a

valid and binding contract between the City of Raleigh and the

complainant in violation of Section 10, Article 1, of the Con-

57 stitution of the United States, which section and article were

expressly set up and relied upon by complainant in protection

of its rights and against the enforcement of said ordinance.

2. Because the said Court erred in dismissing the bill of com-

laint and denying the complainant the injunctive relief prayed

or, for that the enforcement of the said ordinance will operate as an

interference with interstate commerce in violation of the provisions

of the Constitution of the United States, Section 8, Article IT, con-

ferring upon Congress the power to regulate interstate commerce,

and in violation of the acts of Congress passed pursuant to the power

so granted, which section and article were expressly set up and relied

upon by complainant in protection of its rights and against the en-

forcement of said ordinance.

3. Because the said Court erred in dismissing the bill of complaint

and in denying the complain-t the injunctive relief prayed for, for

that by virtue of its charter and the general laws of the State of

North Carolina, the Raleigh & Gaston Railroad Company, prede-

cessor of complainant, had the power, with the assent of the munici-

pal authorities of the City of Raleigh to occupy the sidewalk on the

east side of north Salisbury Street between Jones and Lane Streets

in the City of Raleigh, for the purpose of running a track thereon

the said power being specifically granted by the acts of the General

THE CITY OF RALEIGH ET AL. 35

Assembly of North Carolina, Session of 1871-2, Chapter 38, Section

29, Sub-section 6, as brought forward and amended by The Code

Sections 1957 and 1982, and Revisal of 1905, Sections 2566 and

2567, as follows:

“Every railroad corporation shall have power: (6) to construct

their road across, along or upon any stream of water, water course,

street, highway, plankroad, turnpike, or canal, which the route of

its road shall intersect or touch, but the company shall restore the

stream or water course, street, highway, plankroad and turnpike

road thus intersected or touched to its former state or to such

58 state as not unnecessarily to have impaired its usefulness,

Nothing in this act contained shall be construed to authorize

the erection of any bridge or other obstruction across, in or over

any stream or lake navigated by steam or sail boats, at the place

where any bridge or other obstruction may be proposed to be placed,

nor to authorize the construction of any railroad not already located

in, upon or across anv street in any city without the assent of the

corporation of such city.”

That the said track wo- constructed and has remained in said

street and has been maintained pursuant to the powers conferred by

the said acts of the General Assembly of North Carolina, with the

assent of the Citv of Raleigh, and the enforcement of the ordinance

enacted by the Commissioners of the City of Raleigh ordering the

' removal of said track will imnair the obligation of the contract

thereby created in violation of Section 10, Article 1, of the Consti-

tution of the United States, the provisions of which article and sec-

tion were expressly set up and relied upon by complainant in pro-

tection of its rights and against the enforcement of said ordinance.

4. Because the said Court erred in dismissing the hill of complaint

and in denying the complainant the injunctive relief praved for, for

that the lapse of time, more than 31 years during which the said

track has been continuously maintained and onerated along the said

sidewalk has created in the Raleigh & Gaston Railroad Company and

its successor and assign, Seaboard Air Line Railwav. comnlainant

in this suit, the right to retain said track which right constitutes a

constret, subject to the protection of Section 10, Article 1. of the

Constitution of the United States, and the enforcement of said ordi-

nance ordering the removal of said track will result in impairing

the obligations of said contract in violation of the said pro-

59 visions of the Constitution of the United States, the protection

and benefit of which said Article and Section of the Constitu-

tion, the complainant exnressly set up and relied upon.

5. Because the said Court erred in dismissing the bill of com-

plaint and in denying the complainant the iniunctive relief praved

for, for that it appears from the admissions in the pleadings and the

facts agreed that said track was placed in Salisburv Street and has

remained there under and by virtue of a contract, the obligations of

which will be impaired by the enforcement of the ordinance order-

ing its removal. in violation of Section 10, Article 1, of the Consti-

tation of the United States, which section and Article were expressly

' set up and relied upon by the complainant. :

36 SEABOARD AIR LINE RAILWAY VS.

6. Because the Court erred in holding that the complainant’s

claim is based upon the language of an ordinance adopted thirty

years ago to meet a temporary condition, for that it appears from

the admissions in the pleadings and the facts agreed that the track

was constructed for a permanent purpose, that when the track was

constructed pursuant to the permission granted in the ordinance of

the City of Raleigh, adopted August 5, 1881, it was used as a public

track in connection with the cotton compress of complainant in the

cotton season and was used for the purpose of loading and unloading

freight for the public and for any other purposes for which the rail-

road company desired to use it.

7. Because the Court erred in holding that the ordinance of the

City of Raleigh of August 5, 1881, does not vest in complainant

the property right in the use of said sidewalk for which it con-

tends, and that, if such construction is permissible, the commis-

sioners were not vested by the legislature with the power to make

such exclusive, perpetual grant of the sidewalk to the Raleigh &

Gaston Railroad Company, which prevents the present gov-

60 erning board, in which the power is vested and upon which

the duty is imposed, to control and regulate the use of the

sidewalks for the benefit of the public from making and enforcing

the ordinance of June 10, 1913, for that the ordinance of August 5,

1881, granted permission to occupy the sidewalk for general railroad

purposes in perpetuity and the acceptance of the grant and the ex-

pense incurred in the construction of the said track created a valid

and binding contract between the City of Raleigh and the Raleigh &

Gaston Railroad and its successor, Seaboard Air Line Railway, to

maintain its track in the said street in perpetuity, and for that

the right to construct and maintain its tracks in the streets of the

City of Raleigh was given the Raleigh & Gaston Railroad Com-

pany by the act of the legislature of North Carolina, with the assent

of the City of Raleigh, and such assent was given by the ordinance

of August 5, 1881, and by acquiescence in the occupancy of the

sidewalk by the track for all purposes by the Raleigh & Gaston

Railroad Company and its successor, Seaboard Air Line Railway,

and for that by the acquiescence of the City of Raleigh for more

than thirty-one years in the use of said sidewalk by the Raleigh &

Gaston Railroad and by its successor, Seaboard Air Line Railway,

has created the right to retain said track, which right constitutes a

contract and it is not within the power of the governing board of

the City of Raleigh to order the removal of the said track, because

to do so would impair the obligations of the contract of complain-

ant in violation of the Constitution of the United States, Section

10, Article 1, which was specially set up and relied upon by com-

plainant.

8. Because the said Court erred in holding that the richt to

occupy the street was not given by the act of the legislature of North

Carolina because said act provided that the street occupied by a

track must be restored to its former state, for that the statute

61 provides that the company shall restore the street to its

former state or to such state as not unnecessarily to have im-

THE CITY OF RALEIGH ET AL. 37

paired its usefulness, and the said street has been restored to such

state as not unnecessarily to have impaired its usefulness, and the

portion of the street occupied was expressly designated by the ordi-

nance of August 5, 1881, and such portion of the street has been con-

tinuously occupied since the time for general railroad pu with

the knowledge of the municipal authorities until the ordinance of

June 10, 1913, was adopted. The facts agreed show that Salisbury

Street is 43 feet in width at this point, that there is located on the

west side a sidewalk 13 feet in width, and the portion of the sidewalk

on the east side occupied by the complainant’s track is 10 feet wide,

and that the street and the sidewalk on the west side thereof are

available to and are used'by the public. It further appears that

complainant is the sole abutting property owner along the east side of

Salisbury Street for the entire Snail of said track.

9. Because the said Court erred in holding that the City of

Raleigh is not estopped to deny that it has given its assent to the

occupation of Salisbury Street by the Raleigh & Gaston Railroad

Company and its successor, Seaboard Air Line Railway, for that the

railroad companies having the right to oceupy the street with the

assent of the City of Raleigh, and with the knowledge of the proper

municipal authorities having proceeded to exercise the right and

having constructed, maintained and operated its track in Salisbury

Street for general railroad purposes, the City of Raleigh is estopped

from asserting that it has not given its assent to such use of the street.

10. Because the Court erred in holding that the assent of the

City of Raleigh to the occupancy of said street will not be presumed

after the lapse of so many years, and in holding that under the

statutory system of North Carolina, this is but a plea of the statute

of limitations, for that, as the complainant contended, the

62 assent of the City of Raleigh would be presumed by reason of

the occupancy of the street by the railroad for a long period

of years for general railroad purposes under such circumstances as

to amount to a claim of the right to so occupy it, and for that the

City of Raleigh having power to grant the right to occupy the street,

such grant is presumed where the right has been cxercised for a

period of more than twenty years.

11. Because the said Court erred in holding that the question of

whether the usefulness of Salisbury Street is unnecessarily im-

ired is for determination by the commissioners of the City of

leigh, and that the wisdom of their action is manifest, for that,

it is for the Court to say whether the usefulness of the street is not

unnecessarily impaired.

12. Because the Court erred in holding that in the absence of

express legislative grant, the terms of which are free from doubt and

ambiguity, the municipal authorities are not authorized to grant to

a public utility corporation a franchise to occupy and appropriate

the exclusive use of a street or sidewalk to be enjoyed in perpetuity

and that said power was not granted to the commissioners of the

City of Raleigh by the charter existing at the time of the resolution

or ordinance, giving permission to the Raleigh & Gaston Railroad

38 SEABOARD AIR LINE RAILWAY VS.

Company to occupy the sidewalk on Salisbury Street was adopted,

August 5, 1881.

13. Because the decree of the Court is against the law and equity

of the case and against the admissions and facts .

14. Because in the admissions in the pleadings and the facts

agreed, the complainant was entitled to injunctive relief against the

enforcement of the ordinance of the City of Raleigh of June 10,

1913, as he for in the bill of complaint.

Wherefore, the complainant, Seaboard Air Line Railway,

63 rays that the said judgment and decree of the United States

istrict Court for the Eastern District of North Carolina dis

missing the bill of complaint in this suit and denying the complain-

ant the injunctive relief prayed for, be reversed and that the said

Court may be directed to enter a decree granting to the complainant

a permanent injunction as prayed for in the bill of complaint.

JAMES H. POU,

MURRAY ALLEN,

Counsel for Seaboard Air Line Railway, Appellant.

Endorsement of Acceptance of Service.

Service accepted with copies, this 29th day of December, 1914.

JOHN W. HINSDALE, Jr.,

Attorney for Defendants, Appellees.

64 Filed December 29th, 1914.

In the District Court of the United States for the Eastern District of

North Carolina, at Raleigh.

In Equity. No. 354.

SeapoaRp Arr Line Rattway, Complainant,

vs.

Tue City or RAveicn and James I. Jonnson, O. G. Krva, and’

R. B. SEAWELL, Commissioners of City of Raleigh, Defendants.

Bond.

Know all men by these presents, that we, Seaboard Air Line

Railway, as principal, and Fidelity & Deposit Company of Mary

land, as surety, are held and firmly bound unto City of Raleigh

and James I. Johnson, O. G. King and R. B. Seawell, Commis

sioners in the sum of $1,000.00 lawful money of the United States

to be paid to them and their respective executors, administrators and

successors; to which payment, well and truly to be made, we bind

ourselves and each of us, jointly and severally, and each of our sue

cessors and assigns by these presents. :

Sealed with our seal- and dated this 26th day of December, 191

Whereas the above named Seaboard Air Line Railway has prow

THE CITY OF RALEIGH ET AL. 89

euted an eb to the Supreme Court of the United States to re-

verse the judgment of the District Court for the Eastern District of

North Carolina, in the above entitled cause, and whereas the said

City of Raleigh and James I. Johnson, O. G. King and R, B.

Seawell, Commissioners of the City of Raleigh, have been restrained

and enjoined from attempting to enforce the ordinance of the City

of Raleigh adopted June 10th, 1913, directing the removal

65 of the track of the Seaboard Air Line Railway from the side-

walk on the East side of Salisbury Street between Jones Street

and Lane Street in the City of Raleigh, and have been restrained and

enjoined from removing or attempting to remove said track, and

from in any manner hindering or shetrasting the Seaboard Air Line

Railway in the use of said track during the pendency of said a

‘Now therefore, the condition of this obligation is such, that if the

above named Seaboard Air Line Railway shall prosecute its said ap-

peal to effect and answer all costs and damages may be adjudged

against it if it fail to make good its plea, then this obligation shall

be void ; otherwise to remain in full force and effect.

SEABOARD AIR LINE RAILWAY, [SEAL ]

By MURRAY ALLEN, Attorney.

FIDELITY & DEPOSIT COMPANY OF MARY-

LAND, [ SEAL. ]

By JOS. B. CHESHIRE, Jr., Attorney in Fact.

J. L. SKINNER, Agent.

Bond satisfactory.

JOHN W. HINSDALE, Jr.,

Attorney for Defendants, Appellees.

Sagew wagpces and to act as supersedeas this 26th day of Decem-

, 1914.

H. G. CONNOR,

District Judge of the United States District

Court for the Eastern District of North

Carolina.

40 SEABOARD AIR LINE RAILWAY VB.

66 Filed December 29th, 1914.

In the District Court of the United States for the Eastern District of

North Carolina, at Raleigh.

In Equity. No, 354.

Seasoarp Arr Line Rattway, Complainant,

vs.

Tue Crry or Rateicn, James IL. Jounsoy, O. G. Krva, and R. B.

SeaweE.t, Commissioners of City of Raleigh, Defendants.

Citation.

Unirep SraTtes oF AMERICA, 88:

To City of Raleigh and James I. Johnson, O. G. King and R. B.

Seawell, Commissioners of City of Raleigh, Greeting:

You are hereby cited and admonished to be and appear at a

Supreme Court of the United States, to be held at the city of Wash-

ington, in the District of Columbia, within thirty days from the date

hereof, pursuant to an order allowing an appeal filed and entered

December 29th, 1914, in the clerk’s office of the District Court of

the United States for the Eastern District of North Carolina from a

final decree signed, filed and entered on the 15th day of December,

1914, in that certain suit, being in equity No. 354, wherein Seaboard

Air Line Railway is complainant, and appellant, and you are de-

fendants and appellees, to show cause, if any there be, why the

decree paca eee oe ee 5 gees a od ge order allow-

in mentioned, should not be corrected and why speedy jus-

tice should not be done to the aga in that behalf.

Witness the Honorable H. G. Connor, District Judge of the

67 United States District Court for the Eastern District of North

Carolina, this 26th day of December, 1914, and of the In-

dependence of the United States, One hundred and thirty-eight.

H. G. CONNOR,

District Judge of the District Court of the United —

States for the Eastern District of North Carolina.

I, John W. Hinsdale, Jr., Attorney and Counsel of Record for

City of Raleigh and James I. Johnson, O. G. King and R. B. Sea-

well, Commissioners of City of Raleigh, defendants and appellees

in above entitled suit, hereby acknowledge due service of the above

citation with copies of same and copies of petition for appeal, assign-

ments of error, order allowing appeal, order restoring injunction

pending appeal, bond and bill of exceptions.

This 28th day of December, 1914.

JOHN W. HINSDALE, Jr.,

Attorney for Above-named Defendants, Appellees.

THE CITY OF RALEIGH ET AL. 41

68 In the District Court of the United States for the Eastern

District of North Carolina, at Raleigh.

In Equity. No. 354.

Seasoarp Arr Line Rattway, Complainant,

vs.

Crry or Rareiau and James I. Jounson, O. G. Kino, and R. B.

SEAWELL, Commissioners of City of Raleigh, Defendants.

Order Designating Record to - Sent to United States Supreme

ourt.

By consent of counsel the court hereby orders and directs that

the following shall constitute the record in the above entitled suit to

be sent to the United States Supreme Court, and to be printed in the

transcript of record for use in the said United States Supreme Court,

to-wit:

The Bill of Complaint, Marshal/’s Return, the Prosecution Bond,

Equity Sub-pena with Marshalls return, Notice to Defendants with

Marshall’s Return, Injunction until Hearing with Marshall’s Re

turn, Agreement of Solicitors as to Hearing, Order Continuing In-

junction, Answer, Facts Agreed, Additional Facts Agreed, Opinion

of the Court, Final Decree, Bill of Exceptions with Acceptance of

Service, Petition for Appeal, Order Allowing Appeal, Order Restor-

ing Injunction Pending Appeal, Assignment of Errors, Endorse-

ment of Acceptance of Service, Bond, Citation with Acceptance of

Service and this Order.

H. G. CONNOR,

Judge of the District Court of the United States

for the Eastern District of North Carolina.

Consent :

JOHN W. HINSDALE, Jr.,

Counsel for Complainant.

MURRAY ALLEN,

Counsel for Defendants.

69 Seapoarp Arr Line Rartway, Complainant,

v8.

Crry or Rarercu and James I. Jonnsoyx, O. G. Krxo, and R. B.

Seawett, Commissioners of City of Raleigh, Defendants.

Order to Transmit Record.

And thereupon it is ordered by the Court here that a transeri

of the record and proceedings in said suit, be transmitted to the

United States Supreme Court at Washington, D. C., and the same is

transmitted accordingly.

ALEX. L. BLOW,

Clerk United States District Court,

' Eastern District of North Carolina.

42 8. A. L. RY. VS. THE CITY OF RALEIGH ET AL.

70 Clerk's Certificate.

Unttep States,

Eastern District of North Carolina:

I, Alexander L. Blow, Clerk, United States District Court for the

Eastern District of North Carolina, do hereby certify that the fore-

going sixty-eight (68) pages present a true, full and correct copy

of the proceedings had, and orders entered in that certain suit in

equity pending in said Court, wherein Seaboard Air Line Railway

is complainant and City of Raleigh and James I. Johnson, O. G.

King, and R. B. Seawell, Commissioners of City of Raleigh, are

defendants.

In testimony whereof, I have hereunto set my hand and affixed

the seal of the said District Court at the courthouse in Raleigh,

State of North Carolina, this 18th day of January, 1915.

[Seal United States District Court, Eastern Dist. of N. C.,

at Raleigh. |

ALEX. L. BLOW,

Clerk U. 8. District Court.

Endorsed on cover: File No. 24,524. E. North Carolina D. C. U.S.

Term No. 330. Seaboard Air Line Railway, appellant, vs. The Cit

of Raleigh and James I. Johnson, 0. G. King, and R. B. Seawell,

commissioners of the city of Raleigh. Filed January 20th, 1915.

File No. 24,524.