74 So. 51 | Ala. | 1917
— This is an application by the municipal authorities of the city of Birmingham to review the record of a proceeding had before the Alabama Public Service Commission on the joint application of the Birmingham Railway, Light & Power Company, the Birmingham Tidewater Railway Company, and J. D. Kirkpatrick, for the commission’s approval of a proposed
By the application to the Public Service Commission it was made to appear that at a sale ordered by the District Court of the United States at Birmingham, Kirkpatrick, as agent for a committee of the holders of the mortgage bonds of the Ensley Company, so to speak of the Birmingham, Ensley & Bessemer Railroad Company, had bid in the properties and franchises of that company and proposed to assign all his rights and obligations as such bidder to the Birmingham Company, so to speak of the Birmingham Railway, Light & Power Company, and the Tidewater Company, jointly, the plan, to state it roughly, being that, in consideration that the Birmingham Company would guarantee the committee’s bonds, the properties and franchises purchased for them by Kirkpatrick should be assigned to the Tidewater Company, a corporation organized for the purpose of taking over and operating the properties and business of the Ensley Company, and all the capital stock of the Tidewater Company transferred and assigned to the Birmingham Company. The city of Birmingham was allowed to intervene by way of formal protest in which several objections were taken to the proposed consolidation, but the commission, after hearing the evidence, gave its approval to the plan proposed, after which this application for a review of the record of the proceeding by the common-law writ of certiorari.
The Public Service Commission which succeeded to all the powers and jurisdiction of the Railroad Commission by virtue of the act approved September 25, 1915 (Gen. Acts, p. 865), in giving its approval, acted under authority of section 1 of the act approved August 6, 1915 (Gen. Acts, p. 268), providing as follows:
“Section 1. The property of a public utility, together with its franchises, contracts, business, good will and other assets, may be lawfully sold and conveyed or leased to, and thereafter lawfully held, enjoyed and operated by, a purchaser then engaged or proposing to engage in the business conducted by such public utility; or the capital stock of a corporation owning and operating a public utility may be lawfully sold and conveyed to,
In the intervention, which appears' as a part of the record certified by the commission to this court, it was alleged that the line of railway that had been owned and operated by the Ensley Company lay partly within and partly without the corporate limits of the city of Birmingham, that it was practically a parallel and competing line with lines of railway owned and operated by the Birmingham Company, and that the municipal franchise under which it had been constructed and operated along the streets of the city contained the following stipulation: “The franchise hereby granted shall not be transferred or assigned, in whole or in part, to any parallel or competitive line-without the consent of the city of Birmingham, directly or indirectly, either by purchase, consolidation or merger; and if this condition is violated or evaded, the city council reserves the
And upon these allegations and upon some propositions of law, to be stated and considered, the city denies the constitutional authority, and, however that may be determined, the propriety in any event, of the commission’s action in the premises.
The case of the statute here is accurately described by the last clause of the quotation above. — Railroad Commission v. Ala. North. Ry. Co., 182 Ala. 357, 62 South. 749; West Jersey, etc., Railroad Co. v. Board of Public Utility Commissioners, 87 N. J. Law, 170, 94 Atl. 57.
Referring to section 220 of the Constitution which provides that “no person, firm, association, or corporation shall be authorized or permitted to use the streets, avenues, alleys, or public places of any city, town, or village for the construction or operation of any public utility or private enterprise, without first obtaining the consent of the proper authorities of such city, town, or village,” it is insisted that to construe the act as authorizing the commission to exercise jurisdiction over the transaction in question would involve an application of the act to facts and conditions beyond the lawful reach of legislative power.
But in the absence of such declaration in the statute the constitutional inhibition would of course be read into it and its provisions given operation and effect, as far as might be, in accord with the Constitution. The legal content of the situation presented by our constitutional and statutory provisions touching the subject in hand is well shown by the language of the court in the analogous case of Manufacturerse’ Light & Heat Co. v. Ott (D. C.) 215 Fed. 940, where, to an objection that the statute there under consideration attempted to authorize the Public Service Commission of West Virginia to take property without due process of law, the court responded: “As the statute is silent on the subject, the presumption is that the Legislature intended the commission to comply with the Constitution, not to violate it. Such commissions are under two laws, namely, the statute law of the state, which confers upon them certain powers over public service corporations, and the constitutional law of the state and of the United States, which requires that they shall exercise the powers conferred by statute only by due process of law, that is, after giving the companies due notice and opportunity to be heard. A statute is invalid which requires something to be done which is forbidden by the Constitution, but it cannot be essential to the validity of a statute that it should enjoin obedience to the Constitution.”
In the same connection the city refers to section 3481 of the Code which was in effect when the Ensley Company got its franchise from the city and which permitted the consolidation of railroad corporations in case only their lines admitted the-passage of burden or passenger cars continuously and without break or interruption directly or by means of intervening lines.
In view of what has been already said, no extended discussion of the questions thus proposed is deemed necessary. It is proper to say, however, that it does not appear that there has been any effort to create or approve any exclusive privilege.
It follows that the order of the Public Service Commission must be affirmed.
Affirmed.