Page:Federal Reporter, 1st Series, Volume 10.djvu/515

 M., K. & i. UY. CO. V. 1. & BT. L. Ei. CO. 5<-'i5 �cross \vas not asked, c* any offer of compensation of any kind niade complainant, but a violent and irrcgular and uuusual effort was be- ing made to push defendant's said track acroBS complainant's right of way -without asking any consent, and in defiance of complainant's warning to desist, and that at the time of submitting the bill both parties, with strong construction forces, were standing faciog each other at the point in question, indulging the defendant in surprises and nigbt attacks, and such tumult as put the local community in an uproar, �The defendant asserts its right to cross complainant's tracks and right of way without asking the favor or consent of complainant, and, of course, without resort to legal proceedings to compel such consent. This claim ifc rests upon this language of the constitution of Texas: "Every railroad company shall have the right with its road to enter- sect, conneot with, or cross any other railroad." �Is this part of a sentence, taken from section 1, art. 10, of the con- stitution, 80 far self-acting as to give the defendant a license to judge of its own case, and execute its own judgment thereon ? The language is general, as the language of constitutions usually is, and whcre such language is used to restrain action — as restraining execution from taking the homestead, (defining the homestead,) or to specify the powers of some branch of the government or of some officer — it may well be held to be self-operating; but where it can operate only by affirmative action of private parties, and corne in sharp confiict with Dther private interests, such a general provision needs supplementing by appropriate legislation prescribing the regulation of its exercise. I 80 construe this provision, and am of opinion that the, defendant should be restrained from effeoting said crossinga of complainant's tracks until by negotiation, or by the proper legal proceedings, the defendant shall have fixed its right (with the prescribed or adjudi- cated limitations) to make said crossings. �Stress is laid by defendant's counsel in his argument on the words "irreparable damage." It is hardly necessary, in this case, to in- dulge in any philological disquisition on this text. The most com- mon experience bas little need of the testimony of experts to aid it in reaching the conclusion that such crossings as this application seeks to have restrained would be such a source of danger of collision in the transit of trains as could not be adequately compensated by any moneyed consideration,, and such, as should not ' be permitted «ixcept under the pressure of some paramount necessity for the service «f the public convenience or oi the state. The complainant insists ��� �