98 Ala. 134 | Ala. | 1893
The bill is filed by the Alabama Great Southern Railroad Company to enjoin the enforcement of the following ordinance adopted by the mayor and aldermen of Birmingham, a municipal corporation:
“It shall be unlawful to make up any train across Twentieth Street, by switching or otherwise, at any time, or to switch back and forth across said street for the purpose of distributing cars between the hours of 6 in the morning and 11 at night, but it shall not be unlawful to use the tracks on said street for placing cars on bulk tracks in the yards. Bo obstruction shall remain on, or be across said Twentieth street for a longer time than three minutes. Any person violating this section shall be fined on conviction not less than $1.00 nor more than $100.00.”
The bill avers that complainant is a railroad corporation, duly chartered under the laws of Alabama, owning and operating a railroad from Chattanooga, Tenn., to Meridian, Mississippi, passing through the States of Tennessee, Georgia, Alabama and Mississippi, and connecting at its termini with other railroads, by association, or otherwise, in the interchange of freight and passenger business, thus reaching and extending the commercial relations of the States, wherein its road is located, into many of the States of the union, and affording transportation facilities to many of the States into
The bill prays that the ordinance be declared unreasonable and void, and that its enforcement be perpetually enjoined. The defendant demurred, and also moved to dissolve the temporary injunction for want of equity in the bill, and on the denials of the answer. The defendant appeals from a decree of the court overruling the demurrers and refusing to dissolve injunction.
It would seem unnecessary to discuss at length, or cite-authorities to support, the proposition that, upon the facts averred in the bill, which, upon demurrer, must be taken to be true, the complainant is invested with the ownership and right to the reasonable use and enjoyment of its rights of way, and tracks which cross Twentieth street, and its yards on each side of the street; and, in the exercise thereof, the right to cross the street with its engines and cars in a reasonable and proper manner ; and that these rights the city of Birmingham has no power to take away or destroy, by virtue of any power inherent in the municipality, or expressly conferred upon it by legislative grant. We do not inquire how far the sovereign power of the State might be exercised to prevent the use of the complainant’s yards, within the city, for the purposes for which they were acquired and built and are now being used, or how far that power might be delegated by the State to the municipal corporation itself. It is enough, in the present case, that no such power or authority has been conferred upon the city, and that the extent of its authority, in the premises, is only that conferred by its charter, viz : “To regulate and control the running of ’ cars or locomotives upon or across the streets, avenues or alleys
The ordinance is divided into three distinct provisions, which may be stated as follows:
1. It shall be unlawful to malee up any tram across Twentieth street, by switching or otherwise, at any time. 2. It shall be unlawful to switch hade and forth across said street, for the purpose of distributing cars, between the hours of 6 in the morning and T1 at night, but it shall not be unlawful to use the tracks on said street for placing cars on the bulk tracks in the yards. 3. No obstruction shall remain on, or be across said Twentieth street for a longer time than three minutes.
We lay down as a general proposition that so far as the city of Birmingham, invested with the power to regulate and control the running of cars, &c., has the right to interfere, the complainant, by virtue of its franchises and ownership and enjoyment of its rights of way, tracks and yards, acquired at the time and in the manner stated in the bill, has a right to move its engines, cars and trains across Twentieth street to the extent reasonably necessary to the operation of its road, and the use of its yards, in the transaction of its business ordinarily arising and reasonably necessary to be transacted therein; and that any ordinance of the city denying that right would be unauthorized and of no effect. The power to regulate the moving of cars across the street implies the right in the railroad company to move them, and confers the authority only to prescribe the manner in which they may be moved.
We find considerable difficulty, from the generality and meagerness of its terms, unaided by any averment explaining them, in determining just what the first provision of the ordinance means to prohibit. If it means that a railroad
The second provision of the ordinance is also not free from difficulty in determining its meaning. The prohibition is against switching back and forth across the street, for the purpose of distributing cars, between designated hours, comprising practically all the hours of the day, except that the tracks may be used for placing cars on bulk tracks, in the yard. We understand a switch, in railroad parlance, to mean the appliance used to connect two tracks of railway, or by which one track is made to join another, so as that cars may be transferred from one track to the other; and it would seem that switching, literally interpreted, means the act of transferring engines and cars over the switches from one track to the other. We know, however, that switches, or switch stands, are not usually located in the streets of cities, and can not suppose that the ordinance in question means other than that it shall be unlawful for an engine or cars to be run or moved back and forth across the street for the purpose of distributing cars. In other words, the effect
It is not insisted tbat tbe third clause of tbe ordinance is not within tbe power of the. city to ordain and enforce. A provision tbat no obstruction . shall remain on or across tbe street for a longer time than three minutes is a valid regulation.—Horr & Bemis, Mun. Pol. Ord., § 239; Railroad Co. v. Jersey City, 47 N. J. Law, 286.
Tbe facts averred in tbe bill showing tbe necessity for in-junctive relief against tbe enforcement of tbe ordinance bring the case within tbe influence of Port of Mobile v. L. & N. R. R. Co., 84 Ala. 115.
As we have seen, tbe ordinance is divided into several distinct provisions. These provisions are not made to depend on each other, but are as severable and capable of distinct enforcement as if they bad been ordained by several ordinances. In such case, tbat which is valid may be enforced whilst tbe rest may be rejected as unauthorized and invalid. We have seen tbe ordinance in question is valid, except as to its second provision, which is void. Tbe special prayer of tbe bill is that tbe entire ordinance be held invalid and its enforcement enjoined; but to this is added tbe prayer for general relief, under which relief maybe obtained against so much of tbe ordinance as is invalid. Tbe demurrers were therefore properly overruled. Tbe final decree, on tbe merits, can be so moulded as to preserve tbe integrity of tbe ordinance, in so far as it is a lawful and valid exercise of municipal regulation and control.
Affirmed.