112 So. 742 | Ala. | 1926
Lead Opinion
This is the second appeal. City of Birmingham v. L. N. R. R. Co.,
The questions presented arose in the attempt of the city of Birmingham to eliminate grade crossings used by companies operating railroads in a city of more than 35,000 population; and a further question is presented as to the nature and extent of the appeal provided to any court having chancery jurisdiction. Code 1923, §§ 2070-2075. The nature and extent of such trials in equity were touched upon on former appeal as follows:
"It was intended the proceeding should bear some analogy to appeals. Among the common incidents of appeals are these: A fixed right to thus test the legality of the matter assailed; the right, upon execution of a proper bond, to supersede or suspend the execution of the order or decree pending the appeal; and the right, upon a hearing, to vacate or restrain the execution of the order, if found invalid. These are the incidents we think the Legislature had in mind in styling the proceeding to test the validity of a legislative ordinance as 'an appeal.' It provides a cumulative remedy as of right and not of discretion. * * * We have outlined the procedure to perfect the appeal and the order made thereon in the case at bar as an approved precedent in such cases. In the further progress of the cause the petition is to be treated as in lieu of a bill of injunction, subject to the same rules as to amendment, demurrer, and answer."
There may be analogy in the construction given other statutes providing for appeals to a court of equity. Alabama Public Service Commission v. Mobile Gas Co.,
After the former decision, the pending case in the circuit court in equity proceeded to a decree overruling grounds of demurrer of the city to the bill filed by the railroad company against that municipality, contesting the validity of the ordinances seeking to require the Louisville Nashville Company and the Alabama Great Southern Railroad Company at their expense to eliminate grade crossings at the several streets in said city in the manner specifically indicated — by building trestles, bridges, etc., over the street. The tracks of the Louisville Nashville Company are averred to cross at grade the several public streets in the city of Birmingham; the way of the railroad company long preceding the growth of the city and its present congested traffic.
The demurrer of respondent was directed to the bill as a whole, and grounds thereof limited or directed to certain specified aspects of the bill. The decree overruled the demurrer to the bill as a whole, and sustained certain specific grounds of demurrer, and overruled others. The effect of such a decree on demurrer was discussed in Pollak v. Stout's Mountain Co.,
"A decree sustaining a demurrer to a part of a bill has the effect of striking that part. The complainant may thereupon so amend the part stricken as to give the bill equity in that regard, or he may by express amendment, eliminate the portion stricken by demurrer, or, if the bill still contains equity, may proceed thereon without amendment as if the defective feature had been stricken on motion."
It is elementary that, when an attack is made upon an ordinance on the ground that it is unreasonable, arbitrary, and oppressive, the burden is upon the pleader or attacking party. Briggs v. B. R., L. P. Co.,
And it should be said that the general rules in respect to review of ordinances for unreasonableness are well stated in Briggs v. B. R., L. P. Co.,
"Where an ordinance or by-law, assuming to exercise a power within the municipality's competency, is not void on its face, the legal presumption is that the ordinance or by-law is reasonable and valid until the contrary is shown by proper evidence. Bryan v. Mayor, etc.,
The rules declared have been adhered to in the later decisions of this court. Standard Chem. Co. v. Troy,
The authority of a municipality in the exercise of the police power under the law is ample for the enforcement of the continuous duty resting upon railroad companies and persons in the construction and maintenance of their ways in or across public highways and streets of municipalities. Southern Ry. Co. v. Morris,
In the last-cited case the authorities are collected, and the opinion, by Mr. Justice Hughes, declared:
"It is well settled that railroad corporations may be required, at their own expense, not only to abolish existing grade crossings but also to build and maintain suitable bridges or viaducts to carry highways, newly laid out, over their tracks or to carry their tracks over such highways."
The decision in State ex rel. Minneapolis v. St. Paul, M.
M. R. Co.,
" 'A railroad company receives its charter and franchise subject to the implied right of the state to establish and open such streets and highways over and across its right of way as public convenience and necessity may from time to time require. That right on the part of the state attaches by implication of law to the franchise of the railroad company, and imposes upon it an obligation to construct and maintain at its own expense suitable crossings at new streets and highways to the same extent as required by the rules of the common law at streets and highways in existence when the railroad was constructed.' In that case, it appeared that long after the construction of the railroad, the city of Minneapolis had laid out a street across the railroad right of way, building at its own cost a bridge over the railroad tracks. After the bridge had been maintained for several years by the city it was destroyed by fire, and the city then demanded that the railroad company should build a new one. This demand the state court sustained; and, mandamus having thereupon been awarded (
The case of C., I. W. R. Co. v. Connersville,
"* * * It necessarily follows that, if the city of Minneapolis had opened a public road through the embankment of the plaintiff in error, the latter would have had no ground to complain that its constitutional rights had been violated because it was compelled to bridge the gap at its own cost. No different rule could be applied because the highway was laid out in order to increase the advantages of a public park. In this aspect, it would be equally a crossing devoted to the public use (Shoemaker v. United States,
The action of a municipality in deciding the necessity for and ordering that specified grade crossings be eliminated by the reasonable means duly indicated by ordinance under authority of statute is the province and policy of its duly constituted legislative body, and the courts have no voice in the determination of that necessity. That is, the question of the wisdom and public necessity for the same is, under sections 2070, 2072, Code of 1923, for the decision of the legislative body of the city of Birmingham in the exercise of the prerogative of the sovereign and police power. City of Birmingham v. L. N. R. R. Co.,
"The power may be, and is often delegated to municipal corporations, to be exercised for the promotion of the public convenience. When the power has been delegated in terms of the character employed in the amended charter, the validity of ordinances, prescribing the times, places and manner in which the employment is to be pursued, has been uniformly sustained. Com. v. Stodder, 2 Cush. 562; s. c., 48 Am. Dec. 679; City of St. Paul v. Smith,
And upon that authority (
Adverting to the decisions of the Supreme Court of the United States as to certain constitutional objections that have been urged against such statutes or ordinances, it is declared, through Mr. Justice Holmes, in Erie Railroad Co. v. Board of Pub. U. Com.,
It follows that, since the duty of a railroad company to keep its crossings is continuous (Southern Ry. Co. v. Morris,
The foregoing result is held not offensive to organic law, as the taking of private property for public use without compensation, or the denial of the equal protection of the law, or that against the impairment of the obligations of a contract. Such are our decisions. Lindsay v. Mayor,
The authority of the commission as the legislative body of the city of Birmingham in its legislative capacity and in the exercise of the police power to adopt proper ordinances to eliminate dangerous grade crossings is as ample as that of the state; that is to say, the authority sought to be exercised by the instant ordinances, to the end of *183
the elimination of railroad street crossings, in the populous sections of Birmingham, is ample. The court takes judicial knowledge of the ordinances of said city, and they are considered to the one end in view. Gen. Acts 1915, p. 294, §§ 6, 7; Southern Ry. Co. v. Cates,
"Whenever any such governing body shall deem any such improvement necessary, it shall pass an ordinance requiring the construction of such improvement, describing the character and location of such proposed improvement with reasonable certainty, and stating the estimated cost thereof, and fixing a reasonable time for the construction of the same; and where a viaduct, bridge or tunnel crosses over or passes under the tracks of two or more railroad companies, and such railroad companies cannot themselves agree upon the division as between them, of the cost thereof to be borne by them, as provided in section 2070 (1296), the said governing body shall have full power and authority to apportion the cost thereof, equitably, among the different railroads owning the said tracks."
The right of appeal by the railroad from such order or ordinance requiring bridges, tunnels, viaducts, etc., is provided by section 2075 of the Code of 1923, which was considered on former appeal.
A better understanding of the unanimity of decisions as to the power contained in the several statutes having application will be afforded by the general decisions, state and federal, touching the right of municipalities, by proper ordinances, to require such public service corporations using grade crossings in cities to eliminate the same, collected in 28 L.R.A. (N.S.) 298, note, and 35 A.L.R. p. 1322. In 35 A.L.R. supra, it is stated:
"The power of municipalities to eliminate grade crossings, either through express statutory authority, or by implication from other delegated powers, or the general police power, is recognized in the following cases: United States: Missouri P. R. Co. v. Omaha (1912) 197 F. 516, 117 C.C.A. 12, decree affirmed in (1914)
The case of Missouri P. R. Co. v. Omaha.
"A railway company may, consistently with due process of law, be required by the state, or by a duly authorized municipality acting under its authority, to construct overhead crossings or viaducts at its own expense, the consequent cost to the company being, as a matter of law, damnum absque injuria, or deemed to be compensated by the public benefit which the company is supposed to share.
"Courts cannot interfere with the exercise of the police power by enjoining regulations in the interest of the public safety which the Legislature has duly enacted, provided the means employed have a substantial relation to the purpose to be accomplished and there is no arbitrary interference with private rights.
"The entire cost of constructing a viaduct over the tracks of a railway company at a street crossing may, consistently with due process of law, be imposed upon the railway company by a duly authorized municipality acting under state authority, although the structure ordered by the city, being designed to carry the tracks of a street railway company operating in such street, will cost considerably more than a viaduct sufficient to carry the ordinary street traffic."
The later case of Denver Rio Grande R. Co. v. Denver,
"The track in Wynkoop street has been there since 1871, and we shall assume, as did the supreme court of the state, that it was put there in virtue of some ordinance of that period, and that the ordinance became a contract and the right granted became a vested property right. But, as this court often has held, such contracts and rights are held subject to the fair exercise by the state, or the municipality as its agent, of the power to adopt and enforce such regulations as are reasonably necessary to secure the public safety; for this power 'is inalienable even by express grant,' and its legitimate exertion contravenes neither the contract clause of the Constitution nor the due process clause of the 14th Amendment. Atlantic Coast Line R. Co. v. Goldsboro,
"The scope of the power and instances of its application are shown in the decisions sustaining regulations (a) requiring railroad companies at their own expense to abrogate grade crossings by elevating or depressing their tracks and putting in bridges or viaducts at public crossings (Northern P. R. Co. v. Duluth,
The field of inquiry, indicated to be for the courts, under the federal decisions, is that pointed out by Mr. Justice Van De Vanter in the Denver Case, supra: Are the ordinances in question "plainly unreasonable and arbitrary?" He illustrates that inquiry of fact in his observations:
"The crossing is practically the gateway to the city. Persons in large numbers pass over it every day — many of them unacquainted with the surroundings. Moving engines and cars to and fro over such a place makes it one of danger. Any one of several forms of corrective regulation might be applied. To illustrate: The city might call on the railroad company to construct and maintain a viaduct over the crossing or a tunnel under it; or might lay on the company the duty of maintaining watchmen or flagmen at the crossing. What it actually does by the ordinance is to call on the company to remove the track from the crossing and avail itself of other accessible and fairly convenient means of getting cars to and from its track east of the crossing. No doubt in this the company will experience some disadvantages, but they will be far less burdensome than would be the construction and maintenance of a viaduct or tunnel, and not much more so than would be the keeping of watchmen or flagmen at the crossing.
"The situation is unusual and the ordinance deals with it in a rather practical way. Giving effect to all that appears, we are unable to say that what is required is plainly unreasonable and arbitrary."
In City of Durham v. Southern Ry. Co.,
"Having heard the cause upon complaint, answers and argument of counsel the trial court, 'being of the opinion that no issue of fact for trial by jury is raised upon the pleadings,' made findings of fact, declared the ordinance valid and directed compliance therewith. The railroads offered no evidence, but asked continuation of the cause until the next term and that no further proceedings should be taken until the issues of fact raised by the answers could be decided by a jury. This was denied and they appealed. The Supreme Court held refusal to continue the hearing and transfer the cause to the civil docket for trial by jury was not erroneous, and said that 'the judge was ready to hear and determine the action but the railroads failed to offer testimony or evidence of any kind whatever.'
"We are unable to find that plaintiffs in error have been deprived of any federal right. They had full opportunity to present evidence to support their contentions in the trial court, but offered none."
The city, in that case, had filed a petition for mandamus to compel compliance with the ordinance, and the Southern Railway Company answered, attacking "the ordinance as arbitrary, unreasonable and subversive of rights guaranteed by the Fourteenth Amendment; also because it conflicted with the federal act to regulate commerce (U.S. Comp. St. § 8563 et seq.) by imposing undue expense upon them. The facts relied upon to support these claims were specified."
In the case of A. T. Co. v. Mo. P. R. Co.,
This is the effect of the decisions of the Supreme Court of the United States when the action required as to manner and means is not plainly unreasonable and arbitrary. Mo. P. R. Co. v. Omaha,
At the risk of repetition, we will say that the courts have no right to pass upon the question of reasonable necessity for the construction of bridges, viaducts, etc., to eliminate grade crossings within the municipality at the streets indicated; and the provisions of sections 2070, 2072 et seq., of the Code of 1923, are free, as we have seen, from constitutional objection. If the manner and time of the discharge of the required duty by the railroad company — dependent on the facts, requisitions, and materials to be employed and time specified — is found by the courts as having no substantial relation to the purpose to be accomplished, or to be plainly unreasonable and arbitrary, under the ordinance as administered, it will be declared violative of vested private rights. See authorities in State v. Goldstein,
The fact that the city has not acquired from abutting property owners the right to change the grade of the street is no reason why a proper ordinance may not be passed by the municipality. Due regard may be had for the provisions of section 2071 of the Code before construction of the proposed improvements may be had, if such be required for the protection of the rights of abutting owners. Section 235 of the Constitution; South. Ry. Co. v. Ables,
Adverting to the ruling on demurrer to the bill as a whole, and to that challenging specific aspects thereof, it should be said that, of the cases cited by appellant, Hood v. Southern Ry. Co.,
The several demurrers or grounds thereof present: (1) The aspect of the petition alleging lack of public necessity. This is legislative, and not for review by the courts. (2) The aspect of the petition alleging unreasonableness and arbitrariness. This is the subject of an inquiry of fact presented by the bill as a whole. The ruling on demurrer or grounds thereof should be made to conform thereto.
We have indicated there was no error in overruling demurrer to the bill as a whole; that there was error in sustaining demurrer to the phases of the bill to the end that the governing body of the city in adopting the ordinance failed to exercise a reasonable or proper discretion in determining that the public necessity required the elimination of the grade crossings in question; and that there was no error in sustaining demurrer *186 challenging that phase of the bill directed to the ordinance adopted as being unreasonable, arbitrary, and oppressive in the requirements of the time, extent, material, or agencies to be employed in the elimination of said grade crossings.
The cases cited by appellant are addressed to rulings on demurrer challenging the right to maintain the bill as containing equity. Jones v. Barker,
The question of fact whether the ordinances are "plainly unreasonable and arbitrary" in the specifications submitted and required and the means employed, as having or not having a substantial relation to the purposes to be accomplished and the time of execution or compliance therewith, will be determined on the coming in of all the evidence in support or denial of such litigable facts indicated by the federal cases. Erie Co. v. Board,
In view of the delegation by the Legislature to the municipality of the full power and authority to require railroad companies to construct, etc., viaducts, bridges, and tunnels or parts of "* * * over, along or under the tracks at their own expense," I cannot concur in the construction given the statute by the majority that the power conferred upon the municipality by section 2070 et seq., Code, did not authorize any due change in the grade of the tracks of the railroad companies reasonably necessary to the elimination of grade crossings, for the safeguarding and protecting of those of the general public of the city at and upon said street crossings, having the superior right of the use of same. The statute does not limit the action of the city merely to that of a change of the grade of its streets and sidewalks, as is the expressed view of the majority. The statute is comprehensive, and gave authority to duly affect the whole subject-matter, having a right regard to the end in view — the elimination of unnecessary dangers and hazards at popular street crossings. To this end the municipality may reasonably require, under the statute, the elevation or depression of the grade of the streets and sidewalks, or that of the tracks of the railroad companies, either or both, in whole or in part, at and approaching said crossing and necessary to the elimination of said grade crossing.
The majority, Justices SAYRE, SOMERVILLE, MILLER, and BOULDIN, concurs in my treatment of the constitutional questions presented and argued. However, the majority view as to the effect of the statute and validity of the ordinance thereunder is not in accord with my construction expressed thereof, and it is stated by the CHIEF JUSTICE as follows:
Addendum
This court takes judicial knowledge of its records in the same controversy, and looks from one record to the other when necessary (N.C. St. L. R. Co. v. Crosby,
It should be stated that the two cases (6 Division Nos. 522 and 523) were argued, submitted, and assigned as one, and in effect have been treated as consolidated. We were invoked to this on argument that the merits of the controversy be determined. It was further made apparent by the argument that it was the desire of both parties that the respective merits of the controversy be decided, rather than have the appeal determined on any technical ground or question. The respective constitutional and statutory constructions contended for were fully presented. The issue was the validity vel non of three ordinances of the city in its effort and requirements of the railroad companies, declared and required by that municipality necessary in the elimination of dangerous grade crossings within the city. And the majority of this court, on the issue as presented to them by the writer, held that the city was without express authority to so ordain as was done and the decision was against the city on the statute.
Considering the cases together (6 Division Nos. 522, 523), it was the right and duty of this court to treat the proceeding as one, to determine the validity of the ordinances, whether enacted (1) "by the governing body of said city in the exercise of its police power as expressly delegated to it by the Legislature" (section 2070, Code of 1923); or (2) "by authority of an express legislative grant to the city of power to ordain to the particular effect set forth in said ordinances" (Gen. Acts 1915, p. 296, § 6). The insistence of the city is that the effect of the last-stated act was not developed in the opinion, and to which we should now advert. The authority of the city to pass the ordinances, being treated as resting upon the express declaration of the mode of the exercise of police power to the end in view, and as stated in section 2070 et seq., Code of 1923. In response to the argument of the city, we may say that we should have spoken of the police power as delegated to the municipality in Gen. Acts 1915, p. 296, § 6.
Before proceeding with a discussion of the right to ordain, as was done under the general police power, it should be said that the fact that Gen. Acts 1915, p. 296, was a law of general application, and embraced within its classification only the municipality of Birmingham, and was not given a place in the codification of general laws in 1923, did not repeal or render that statute negatory. The saving clause contained in Code 1923, § 11, is sufficient to save that statute from embarrassment, and this was again safeguarded by the provisions of the act adopting the Code. Gen. Acts 1923, p. 127, § 2. See, also, 1 Code, p. vi.
It should be noted of the legislative history of section 2070 et seq., of the Code of 1923, that the provisions of the Act of 1915 (section 6, p. 296) were the law years before the adoption of the Code of 1923; that is to say, that section 2070 of the Code of 1923 was section 1296 of the Code of 1907, and was taken from section 1 et seq. of Gen. Acts 1907, p. 736. In each of these statutes words are employed, as "shall have full power and authority to require" as to construction and maintenance of viaducts, etc., "over, along or under their tracks at theirexpense," and "or other conveniences at public crossings, and such viaducts, and their approaches over their tracks where the same cross or extend along public highways or streets." The only change that was made in codification of section 1 of the Act of August 13, 1907, material to note, was the addition of the word "own" in the phrase "at their expense" — reading as it does (in the Codes of 1907 and 1923) "at their own expense." The expressions "where a viaduct, bridge or tunnel crosses overor passes under the tracks of two or more railroad companies," and "that the governing body of the city shall have full power and authority to equitably apportion the costs among the different railroads owning the said tracks," as the same appear in section 2072, Code of 1923, are contained in section 1298 of the Code of 1907 and in section 2 of the Acts of 1907, p. 737.
Addressing our inquiry to the city's right under its general police power, as expressed or delegated by the Legislature to the municipality of Birmingham in Gen. Acts 1915, p. 296, § 6, we should observe that it was in the exercise of general police power for the removal of railway tracks from street intersection that resulted in the decision in Denver *188 Rio Grande R. Co. v. Denver,
It will be noted of the Omnibus Bill that its section 6 of the Acts of 1915, pp. 296, 297, contains a general delegation or recital of power — that possessed by the city or that from time to time had been delegated thereto. They were to the effect that cities of the class indicated (1) are given or had full authority not inconsistent with organic law to carry into effect "the powers and duties conferred by law upon such cities"; (2) to provide for the safety, health, prosperity, and morals of its people, etc.; (3) to prevent and punish offenses to the public; (4) to prevent conflict and ill feeling between the races by passing segregation ordinances; (5) to prevent and punish violations of its ordinances and to compel obedience thereto. The limitations or explanations of the powers thus recited or conferred are stated as follows:
"That this section shall not be construed to authorize the forfeiture of franchises granted by State laws or city ordinances without appropriate legal proceedings, and to the ends set out in this section the full, complete and unlimited police powers possessed by the State of Alabama are hereby delegated to such cities and towns as though specifically and in detail set out in this section, in so far as it is possible for the Legislature of Alabama under the Constitution of Alabama and of the United States to delegate such powers, it being expressly declared that nothing containedtherein shall be construed as a limitation of or restriction on the police powers heretofore or herein granted to such cities under general or special laws."
It would appear that the use of the word "therein" in the foregoing excerpt from section 6 of the Act of 1915 referred to the laws conferring general "powers" upon and that defining the "duties" of cities of the class thus created, and laws and ordinances granted touching forfeitures of franchises. The words "heretofore or herein granted," as employed in the context, had the meaning and legal effect of a cumulative recital of police powers by that municipality. This is evident from the concluding clause of the Omnibus Bill, which is as follows:
"All laws and parts of laws, general and special, in so far as they may be in conflict with any provision of this act, shall be and the same are hereby expressly repealed, but such cities shall continue to have and exercise all rights, authority, powers and jurisdiction which they now have except as in this act otherwise expressly provided, it being the intention of this act to grant cumulative powers to suchcities." (Italics supplied.) Acts 1915, p. 307, § 38.
What, therefore, was the expressed legislative purpose, as affecting the city of Birmingham, by the readoption of the provisions of section 1296 et seq., Code of 1907, as thereafter affected by the act of 1915, as section 2070 et seq., of the Code of 1923? Were the provisions of section 6 of Acts of 1915, pp. 296, 297, in full force and effect as to Birmingham and other cities that may come within the class created?
The general rule of construction of two or more statutes on a subject is that they be considered in pari materia. It is a general rule of statutory construction, and given expression in Birmingham v. So. Express Co.,
The first ground of demurrer by the city challenged the petition or bill, saying "that the same is without equity." The announced conclusion of the trial court was that demurrer to said pleading as a whole was not well taken and the bill contained equity. It was necessary that we consider this feature of the controversy to determine one phase of the city's appeal. The judgment of the majority was that the express legislative grant was not sufficient to the end declared by said ordinances. If the police power of the city under general law, or that delegated by the terms of section 6 of the Act of 1915, was limited by the express provisions of section 2070 of the Code of 1923, as to the mode of exercise to be employed and given expression in the ordinance, this is conclusive of the city's appeal on that phase of the controversy. The assignment of error to the effect that the demurrer to the bill as a whole should have been sustained is contrary to the conclusion announced by the majority in the construction of the express terms of section 2075 of the Code, and also as to the powers contained in Acts 1915, p. 296, § 6. *189
The assignment of error rested on the overruling of the demurrer to the aspect of the original petition seeking relief upon the grounds designated as F of section 30, as follows: "* * * nevertheless said ordinances are invalid in that they are unreasonable and oppressive, and their effect is to take your petitioner's property without due process of law in violation of both the state and federal Constitution," was, in the opinion of the writer, subject to the appropriate demurrer directed thereto; and the paragraph G of section 30, to the aspect of the bill that "said ordinances are unreasonable and oppressive, in that (as specified) there is no public necessity requiring such separation or elimination," in the judgment of the writer, was likewise subject to the appropriate ground of demurrer directed thereto.
It follows that, from the construction given of the express statute, section 2070 et seq., Code, and of the general police powers of the municipality, they are not sufficient in the opinion of the majority to the expressed purpose and specifications of the ordinances, and that the ordinances are invalid and properly enjoined in the execution. The order heretofore made was inadvertent, and not in accord with the view of the majority, and the judgment of the circuit court is affirmed. The rehearing is granted, and judgment of affirmance now entered, in case No. 522, on the ground stated — that the ordinance is invalid and not authorized by the statutes.
In the appeal by the Louisville Nashville Railroad Company, the bill in equity is in like terms and effect; the pleas duly set up the pendency of the first suit and its like effect under the special statutory provision. There were no demurrers interposed. Though the two cases were submitted together as one suit, they are in fact different, being only the ruling on pleas in the latter, No. 523.
The rehearing is granted, and the decree of the court is affirmed.
ANDERSON, C. J., and SAYRE, SOMERVILLE, and BOULDIN, JJ., concur.
GARDNER and BROWN, JJ., not sitting.
THOMAS, J., dissents.
Addendum
(for the majority). While in accord with the views as expressed in the foregoing opinion of Justice THOMAS as to the constitutional right of municipalities, when the authority is properly delegated by the Legislature, we do not agree with him as to the validity of the ordinances in question. The ordinances require the elevation of the tracks of the railroads over the respective streets dealt with by the construction of bridges over said streets and the removal of the railroad tracks so as to run over the streets, and in effect require what may be termed an elevated railroad through a considerable section of the city. We are of the opinion, and so hold, that said ordinances are not authorized by the statute, and are therefore invalid. Sections 2070, 2071, and 2072 of the Code of 1923, in dealing with the questions and under which the city must derive its authority to require viaducts, tunnels, etc., and which must be considered in pari materia, indicate a legislative intent to authorize viaducts or bridges over and along and tunnels or underground passageways under the tracks, and not the removal of the track so as to make it go under the street or over the same. The statute nowhere contemplates or authorizes the removal of the railroad track in order to accomplish the purpose for which it was enacted. In other words, the statute clearly means that, where the tracks cross a street, the city may require either a bridge or viaduct constructed over the tracks" or a tunnel "under the tracks," and, where the tracks extend along a street, it may require a viaduct "over the tracks" — all to the end of carrying the street over or under the tracks and letting the tracks remain as they were. Nor can the city get any comfort from the Act of 1911, p. 373, which, we may concede, but do not hold, may also apply to the ordinance in question.
While the majority are in accord as to the construction of the statute and the invalidity of the ordinances, the writer does not wish to commit himself to the constitutional question as discussed in the opinion of Justice THOMAS. It may be sound, but I do not think it at all necessary to a decision of this case. In fact, the constitutional question is only raised as against the statute in case it was so construed as to authorize the ordinances, *187 and no constitutional point is made against it as presently construed, and I am opposed to committing this court to the constitutionality vel non of an imaginary statute; that is, one which the Legislature may never pass. "Sufficient unto the day is the evil thereof."
Reversed and remanded.
ANDERSON, C. J., and SAYRE, SOMERVILLE, MILLER, and BOULDIN, JJ., concur.
THOMAS, J., dissents.
GARDNER, J., not sitting.