20 Colo. 150 | Colo. | 1894
In the opinion originally promulgated in this case it was said: The particular relief sought by the action is rendered nugatory by the completion of the line of railway in controversy under subsequent state and municipal legislation.” But in the preparation of that opinion it was assumed that counsel for plaintiff had conceded the power of defendants (the mayor and chief of police) to question the
By the petition and briefs for a rehearing counsel insisted that their oral arguments were misunderstood; that they did not make, nor intend to make, any such concession. There being no written evidence of such concession, it could not be insisted on as against the denial of honorable counsel, and so a rehearing was granted.
Upon re-argument and re-examination our conclusion is that this court ought not to express an opinion as to the extent of the rights or privileges of the plaintiff company under Ordinance No. 3, of February 6, 1885, hereinafter quoted-, except so far as may be necessary to-determine whether the mayor and chief of police of the city were justified in interfering as they did with the employees of said company in the work of constructing its electric lines in December, 1889. Whether the ordinance granted to the plaintiff company a privilege in perpetuity is not material to the determination of the present controversy.
It is conceded by the written argument of counsel for defendants that “ the matter now in controversy can in no way affect the liability of thé plaintiff in error (The Tramway Company) or its right to the use and enjoyment of the streets for railway purposes, which it now occupies.”
It is clear that there is not at the present time any actual living controversy as to the use of the streets already occupied by the plaintiff company for electric railway purposes. It will be time enough to determine whether the company has a valid grant of right of way (in perpetuity or otherwise) in streets not occupied, when such a claim is asserted and actually brought in issue.
The constitution of Colorado has always contained the following-provision :
“ No street railroad shall be constructed within any city, town, or incorporated village, without the consent of the local authorities having the control of the street or highway proposed to be'occupied by such street railroad.” Art. 15, sec. 11.
The charter of the city of Denver as amended in 1883 provided, among other things, that the city council should have power by ordinance as follows, to wit:
“ Forty-first. To permit and regulate the running of horse railway cars, or cars propelled by dummy engines, the laying down tracks for the same, the transportation of passengers thereon, and the form of rail to be used, upon the written consent of the owners of the land representing more than one half of the frontage of the street, or so much thereof as is sought to be used for railroad purposes.”
“ Forty-third. To regulate and prohibit the use of locomotive engines and require railroad cars to be propelled by other power than that of steam.” * * * Art. 2, sec. 17, Session Laws, 1883, pp. 64, 65.
While the foregoing charter provision was in force the city of Denver passed an ordinance containing the following :
“ Section 1. That the right of way be, and the same is hereby granted to The Denver Electric and Cable Railway Company, its successors and assigns, to build, operate and maintain a single or double track railway, with the switches,*154 turnouts, side tracks and other appliances necessary for the operation of the same, in, along and across the streets of the city of Denver, said, railway to be operated by power transmitted by use of electricity or by cable.” See Ordinance No. 3, adopted Feb. 6, 1885.
The charter of the city of Denver as amended in 1885 among other things authorized the city:
“ To regulate the use of locomotive engines, to direct and control the location of cable and other railroad tracks.” Art. 2, sec. 20, Session Laws, 1885, p. 85.
Under the charter thus amended the city council passed an ordinance expressly recognizing Ordinance No. 3, of February 6, 1885, as valid, and providing for its enjoyment to a certain extent by the plaintiff company. See Ordinances 28 and 29, adopted May 2 and 3, 1888.
The charter of the city as amended in March, 1889, authorized the city council by ordinance :
“ To permit and regulate the running of horse railway cars, or cars propelled by dummy engines, cable or electricity, the laying down tracks for the same, the transportation of passengers thereon, and the form and kind of rail to be used ; and to require railway companies using streets to lay their tracks at the official grade thereof, and to re quire them to bring such streets between the sidewalks to the official grade at their own expense; and to compel them to pave the streets between their tracks, and for a distance of two feet upon each side of the same.” Session Laws, 1889, p. 127.
Subsequent to the passage of this amendment the city council passed an ordinance (No. 27, adopted May 13,1889), recognizing rights of way theretofore granted for the use and occupation of the streets and avenues of the city by street railway cars propelled by electricity as well as by horse power, dummy engines, cable and steam; such ordinance provided for the issuance of permits by the city engineer to any company or corporation constructing such railways to excavate the streets for that purpose, and also contained specific regulations concerning the manner in which the
The agreed statement of facts shows that permits to excavate were issued by the city engineer to the plaintiff company in accordance with the requirements of Ordinance No. 27, of May,1889, and that such' permits were continued up to December 9, 1889, two days before the commencement of this action. The agreed statement of facts also shows the following:
“ That during the month of May, A. D. 1889, and subsequent thereto, down to the time of the filing of the complaint in this action, the said plaintiff company was the only person or corporation which had been, as it claims by virtue of the ordinances above set forth, granted the right of way to use and occupy any of the streets and avenues of the city of Denver for the purpose of laying a track or tracks to be used in running ears propelled by electricity.
“ That at the time of the passage of said Ordinance No. 27, A. D. 1889, there was no other ordinance in existence granting or purporting to grant to any other company than the said plaintiff the right to construct a street railroad to be operated by means of electricity.”
It will be observed that all the foregoing statutes and ordinances, as well as the constitutional provision above quoted, were adopted before the action in this case was commenced.
It is true, the charter of 1883 did not specifically authorize the city of Denver to permit the operation of street railways by electricity. But, as we have seen, the various amendments’ to the charter of the city of Denver bear ample proof of the policy of our legislation in the matter of the location and operation of street railways. As by the progress of science, discovery and invention new kinds of motive power have been found useful for propelling street railway cars, so the charter has been amended expressly authorizing the use of cable power in 1885, and electric power in 1889 for that purpose, in addition to horse power and dummy 'engines theretofore authorized to be used.
Conceding that the city was without authority to adopt Ordinance No. 3, on February 6,1885, it is nevertheless urged with much force and reason that the charter amendments of 1885 and 1889 as above stated and the ordinances adopted thereunder are to be regarded as curative statutes, thus legalizing the subsequent use of electric power by the plaintiff company. A standard author says :
“ The rule in regard to curative statutes is that, if the thing omitted or failed to be done, and which constitutes the defect sought to be removed or made harmless, is something which the legislature might have dispensed with by a previous statute, it may do so by a subsequent one. If the irregularity consists in doing some act, or doing it in the mode which the legislature might have made immaterial by a prior law, it may do so by a subsequent one. On this principle the legislature may validate contracts made ultra vires by municipal corporations. It may thus ratify a contract of a municipal corporation for a public purpose.” Sutherland on Statutory Construction, sec. 483.
In any event, it is clear that the mere executive officers of the city could not as late as December 11,1889, be heard to question the plaintiff company’s right to complete its electric lines already commenced.
Under such circumstances, it was manifestly unjust for the executive officers of the city to treat the plaintiff company or its employees as trespassers for proceeding with the work of constructing the electric line of the plaintiff company through the streets of the city already occupied for that purpose. The company had expended large sums of money in a great public enterprise; it had done this upon the faith of the express action of the city authorities. The use of the streets for such purpose had received legislative sanction; that is, such use had been made lawful when sup
Considering all the circumstances of the case, our conclusion is that the suit of the plaintiff company should have been sustained as against the mayor and chief of police, the only defendants in the action. The former opinion is accordingly withdrawn, the judgment of affirmance is vacated, and the judgment of the district court is reversed and the cause remanded. In view of the rehearing, neither party shall recover costs of the other in this court.
Reversed. .