156 Minn. 475 | Minn. | 1923
Plaintiff sued out an alternative writ of mandamus requiring defendant to install crossing gates where its tracks cross two streets of the city known as Rose street and Bridge street, and to provide operators at all times to attend to and operate such gates, or show cause why it should not do so. The writ recites that plaintiff is a city of about 8,000 inhabitants operating under a home rule charter; that defendant operates a line of railroad through the city and maintains therein a depot for receiving and discharging passengers and freight; that Rose street is the first street north, and Bridge street the first street south, of such depot; that the places where these streets cross defendant’s tracks are especially dangerous and are unguarded; that the travel over these crossings is heavy; that on February 7, 1922, the city passed an ordinance requiring defendant, within 120 days thereafter, to install and maintain suitable crossing gates at such crossings, and to provide competent operators at all times to attend to and operate the same, and that defendant has failed and refused to do so.
Defendant answered, putting in issue the charge that the crossings were dangerous, and asserting that the ordinance is arbitrary, oppressive and unreasonable, especially that portion of it requiring defendant to provide operators at all times to attend to and operate the gates, and that compelling defendant to install such gates and provide such operators will deprive it of its property without due process of law. In its answer defendant offered to install electric flash light signals at these crossings and keep them in operation both day and night, or to maintain flagmen at such crossings at all reasonable hours. It alleged that experience had demonstrated that such signals were more effective than gates in preventing accidents, and that they could be installed, maintained and operated for a
On motion of plaintiff the court struck from the answer the entire portion thereof relating to flash light signals, and the entire portion thereof relating to the viaduct and the relocating of the state highways. Defendant appealed from this order.
The order seems to have been based on the ground that matters arising after the issuance of the alternative writ could not be taken into consideration in determining whether a peremptory writ should issue, and on the further ground that the facts and conditions set forth in the parts of the answer stricken could not be taken into consideration in determining whether the ordinance was arbitrary, oppressive and unreasonable.
When a court' is asked to exercise the extraordinary power of mandamus, it is not limited to a consideration of the facts and conditions as they existed at the time the proceeding was initiated, but should take into consideration the facts and conditions existing at the time it determines whether a peremptory writ should issue. Dexner v. Houghton, 153 Minn. 284, 190 N. W. 179, and cases there cited.
Order reversed.