Council Passed New Grade Separation Ordinance

COUNCIL PASSED NEW GRADE SEPARATION ORDNANCE

Which Relieves the City From Any Liability For Damages

The Discussion Over It Took a Very Warm Tinge and Was Mainly In the Hands of the Lawyers

Monday's council meeting was a free-for-all chewing match and affair was called on almost immediately after the council was called to order. Twelve aldermen and President Walz responded to roll call. The Lobby was well filled also with interested citizens in anticipation of the third reading of the proposed new ordinance amending and adding to the ordinances in force relative to grade separation.

Mayor Brown called the special session of the council to consider:

First--The ordinance relative to the tracks of the Ann Arbor Railway company;

Second--To take such action as may be necessary in order to protect the paved streets of the city from being torn up by telephone or other companies.

A petition was read permitting the Ann Arbor railroad to cross Liberty and First streets with a single track at ten feet elevation from established grade on Liberty street and four feet at First street.

Another petition was read signed by G. F. Allmendinger and a number of others asking that the pending ordinance be returned to the committee and that the committee be instructed to give a hearing to all interested citizens.

Still another petition signed by H. S. Dean and many others was read against permitting the new telephone company to tear up East Liberty street to place their conduits for telephone wires. A communication from the mayor was read recommending that action be taken establishing regulations under which paved streets can be torn up.

With these petitions disposed of the grade separation ordinance as amended was read for the third time and the ball was opened.

Alderman Fischer stated that Dean & Company were present and wished to be heard on the matter. They were given the opportunity, when Col. Dean stated that Attorneys Frank Jones and Mr. Gates would present some points for the consideration of the council. Attorney Jones asked if the ordinance of Oct. 1 had ever been accepted by the Ann Arbor Railway company. He referred to some judgment against the city and said the passage of the proposed ordinance would put certain persons in the air and might put the council in the air. He advised the council not to jump into the litigation now going on and complicate the situation by passing the proposed ordinance. He referred to Judge Lockwood"s decision and the injunction issued by Judge Wiest enjoining the building of embankments and claimed the passing of the ordinance would relieve the railroad of certain burdens.

The inference from his talk vas that the council might find itself in contempt of court should it pass the ordinance before it and the members might have to go to Jail.

He was followed by Attorney Gates, of Detroit, for Dean & Co. He reviewed the cases already passed upon by the court, the Ingham county injunction matter and took up various grade separation cases in Detroit illustrating similar principles of law to those involved here. He thought the city had not started right and that it should have proceeded under the state law and made arrangements to settle with all persons whose property would be damaged by grade separation before the work was entered upon. He referred to a Detroit case in which a citizen had obtained damages in perpetuity because of an embankment built near his premises. The inference was that the city of Ann Arbor by proceeding as it was doing would likely be obliged to pay annual damages forever and a day. He didn't want the council to saddle the city, or run "agin" the courts or go to jail, of course.

When Mr. Gates sat down Attorney M. J. Cavanaugh took up the discussion on the other side and he turned it into his brother attorneys on the other side in right warm fashion and said they were talking through their hat a it were, and that they knew better than what their talk indicated. He declared the council had the undoubted right to pass the proposed ordinance without contempt of court or danger of incarceration behind bars. He made a strong plea for the ordinance.

City Attorney Kearney said the council was within its legislative rights in passing the ordinance and had nothing to fear from the courts, that the courts had no authority to restrain a legislative body in the performance of its legislative work. He considered the ordinance an altogether proper one for the council to pass.

Mayor Brown was asked to present his views. He favored the ordinance because it secured to the city all that the old ordinance did while relieving it from the $10,000 obligation to pay for a viaduct on Ann Street, and from all possibility of the city being held for any damages to private property by grade separation. So far as the securing of grade separation was concerned the new ordinance protected the city in everything secured by the old ordinance and more.

Mayor Brown was asked numberless questions in rapid succession. His answers were to the point. When the fire became rapid, when nearly everyone in the lobby fired questions at him, his answers became a bit tart, but the questioners were not at a loss to know who was hit.

At this point the meeting degenerated into a free-for-all and several tried to talk at the same time.

An earnest effort was made by Mr. Allmendinger and Col. Dean to have the ordinance go back to committee, but the aldermen seemed ready to vote and finally after two hours or more of the strenuous discussion the vote was taken and the ordinance was passed by a vote as follows: Yeas--Schlenker, Hutzel, Kearns, Miller, Johnson, Grose, Bangs, Coon, Fischer. Nays--Gill, Schumacher, Goodyear, President Walz.

The matter of preparing regulations under which pavement may be taken up by telephone or other companies was referred to the street committee and city attorney, after which the council adjourned.