189 F. 445 | U.S. Circuit Court for the District of Minnesota | 1911
After hearing the arguments of respective counsel, the court rendered the following decision, orally:
I will follow the order pursued by counsel, and in discussing the two branches of this case, I will take up first the so-called construction and extension ordinances.
“The city council may at any time designate any other line of railway in the said city as a line demanded by the public necessities; and may also designate an extension of any existing line or lines.
“And in case said company, upon being notified of such designation shall not within such reasonable time as shall be fixed by the city co.uncil, construct and put in operation such line, then the city council may charter to any other company the exclusive right to construct and operate a street railway in the street or streets so designated.”
I eliminate from this discussion all the ordinances passed prior to 1911. I do so, because in all of them, except two-, there is no attempt whatever to fix any time within which the street railway company must complete the line. These ordinances on their face, so far as they are an attempted compliance with section 3 of the ordinance of 1875 are completely null and void, impose no obligation or liability upon the company, and furnish no ground for the claim on the part of the company that they impair in any way the obligation of its contract with the city, or deprive it of its property without due process of law.
There is one ordinance which directs the company to commence construction forthwith, but that is not in compliance with the terms of section 3. The ordinance relating to the Franklin Avenue link requires the company to commence construction by April 1st, but nowhere in that ordinance is there any determination of the time within which the line shall be completed; and that is an essential feature of
There is, moreover, another provision in section 4 of the ordinance which makes the remedy apparently of more value than it appears on its face to be. That section specifically provides that any company to which a charter was granted to construct lines on a street in which the present company refused to make construction should have the right to use the rails and tracks of the old company under such terms as might be determined by the district court of Hennepin county. So I do not think it can be said that when that contract was made it was entirely one-sided. I say this is my present opinion upon that
It is claimed by the complainant that the four or five — four, I think ■ — ordinances passed in 1911 are void because they impair the obligation of the contract between the company and the city, because they deprive the company of its property without due process of law, and because they deny jjhe company the equal protection of the law.
The ordinance commences by declaring:
“That street car service is demanded by the public necessities upon the following named avenue.”
• — and then says:
“That the Minneapolis Street Railway ‘Company be and it is hereby authorized and directed to lay, construct, and equip a double track electric street railway upon and over said Plymouth avenue,” etc., “and to put the same in operation within the period hereinafter prescribed, as a part of its city street car system.”
The ordinance further provides (and I call it an ordinance although it is denominated a resolution):
“That the period of five months immediately following the passage of these resolutions be and is hereby declared to be, in the judgment of this council, a reasonable time within which to complete said construction and equipment.” '
That is all there is of the ordinance. It does not in any way indicate what the city proposes to do if the company does not comply with the ordinance. It does not order or direct any officer of the city to take any action whatever. It simply declares that the public necessities demand this construction, fixes the time within which the construction ■’shall be made, and orders the company to make it.
Now, wherein does that ordinance impair the obligation of the contract between the company and the city, or in what way does it deprive ‘the company of its property without due process of law? It is an ordinance — -a resolution — passed in strict conformity with section 3 of the ordinance of 1875. But it is said that it violates the contract in the respects claimed, because upon some of these streets it is made to appear by the bill that sewers have not yet been laid; and it is claimed that by the terms of the contract between the parties no extensions can be ordered until sewers have been laid.
“Sowers shall bo built in all streets before new lines shall be ordered, or existing lines shall be ordered extended thereon, and said eompany shall only be required to construct the lines so ordered between the 1st or April and the 1st of November.”
That ordinance was accepted by the company, and the ordinance itself provided that it should not take effect until so accepted. It related to transfers, and why this matter of sewers was put in does not appear; but it was put in there, and of course it was binding upon the city as long as it stood there. But on July 28, 1893, an ordinance was passed over the mayor’s veto, amending section 6, which was the section treated of in the ordinance of 1892, and as so amended the jiro vision in regard to sewers was omitted; so that, as the law -now stands, there is no provision requiring the city to lay sewers in the streets before the street car company can be ordered to construct new lines or extensions. It is claimed, however, by complainant that this ordinance oí 1893 was never accepted by the company, and consequently, it cannot in any way affect the rights which were granted to it with respect to sewers by the ordinance of 1892. Upon that subject I consider the opinion of the Supreme Court in a case between these same jiarties, the City of Minneapolis v. Minneapolis Street Railway Company, 215 U. S. 417, 30 Sup. Ct. 118, 54 L. Ed. 259, as conclusive.
Section 8 of the ordinance of 1890 provides as follows:
“In the construction, maintemmee and operation of said lines of street railway, said Minneapolis Street Railway Company, its successors and assigns, shall at all times be subject to all the conditions and limitations and other provisions of an ordinance entitled ‘An ordinance authorizing and regulating street’ railways in the city of Minneapolis,’ passed July 9, 1875, and approved July 17, 1875, as the same has been amended and is now in force, and all other ordinances of said city now in force or hereafter adopted, so far as applicable.”
It was held in the case cited that that ordinance giving the city power to regulate by future ordinances the construction, maintenance, and operation of all lines did not give the city jiower to regulate fares, so as to infringe the contract, or lake away what had been secured iti that resjiect by the ordinance of 1875. Precisely what was meant by the words “construction, maintenance, and operation” was decided in that case, where it was said on page 435 of 215 U. S., page 125 of 30 Sup. Ct. (54 L. Ed. 259) :
“The right to future control uuder section 8 was to include the ‘construction, maintenance and operation’ of the line of the street railway company. Did this undertaking have the effect to abrogate the contract right already existing, and to subject the company for the future as to the right to charge fares, to the discretion of the city council? Or, do the terms ‘construction, maintenance and operation’ have reference to the manner of carrying on the business of the road, the laying of its tracks, the use of the streets, the keeping up of the equipment, the safety of the passengers and the public,*452 and similar matters not involving the right to charge fares? We think these terms refer to the latter class of rights and privilges. Such is the import of the words used, and the subject of rates of fare is not mentioned.”
■I think that is conclusive upon this question. It is distinctly held there, as I understand it, that the city council has the right by future ordinances to regulate and control the manner, of carrying on the business of the road, the laying of the tracks, the use of the streets, and the keeping up of the equipment. When we consider the meaning of the term “use of the streets,” we must conclude that it includes the question whether the tracks should be laid before the sewers are put in, or after they are constructed. So I eliminate from the consideration of this matter the question with regard to sewers, because I consider that the ordinance of 1893 was binding upon the company, although not accepted by it.
Reference has been made to the case of the Northwestern Telephone Company against the city of Minneapolis reported in 81 Minn. 140.
The fourteenth amendment does not declare that no man shall be deprived of his property without due process of law, but that no state shall deprive any person of his property without due process of law. If an officer of the city without any legislative authority from the council or from the state undertake to deprive this company of its property without due process of law, its remedy is in the district courts
There is an allegation in the bill that the city has threatened to forfeit the rights of the company to its franchises on the lines extended. But no such threatened action on the part of any city official would be warranted by this resolution Exhibit M. Upon this branch of the suit Des Moines v. City Railway Company, 214 U. S. 179, 29 Sup. Ct. 553, 53 L. Ed. 958, and also the case of the St. Paul Gas Eight Company v. St. Paul, 181 U. S. 142, 21 Sup. Ct. 575, 45 L. Ed. 788, are in point.
The latest utterance upon the subject is found in the case of the Atchison, T. & S. E. Ry. Co. v. City of Shawnee, 183 Fed. 85. That being a determination of the Circuit Court of Appeals of this circuit; the decision is of course binding upon this court, but the resolution in that case goes much farther than the resolution in this case. It was there said:
“It is more than a mere declaration of the attitude of the city and a direction to its law officer to bring suit in court. It not only denies the company has any right or title to the street arising from a lawful vacation, but demands that it shall assume the burden of opening it up and restoring it to public travel. The resolution is militant, not merely declaratory.”
In other words, it was a determination by the city of Shawnee that the railway company had no right whatever to a piece of land which it in fact owned. For these reasoná I have come to the conclusion that the bill furnishes no authority at all for holding that the ordinances or resolutions to which I have referred, and which are limited as I said before to those passed in 1911, are null and void. They are in my judgment valid, and, being valid, there is no ground upon which a temporary injunction can be issued.
“The law governing the rights of city councils to regulate public service corporations is not doubtful. In Northern Pacific Railway v. Duluth, 208 U. S. 583 [28 Sup. Ct. 341, 52 L. Ed. 630], it appeared that the railway company after considerable negotiation with the city, in which it denied its obligation to build a viaduct, in 1891, entered into a contract with the city, which contract ’provided that the city should build the viaduct, and that the railway company should contribute to the expense of-its construction $50,000. The city undertook for a period of 15 years to maintain the bridge over the railway’s right of way. In 1903 the viaduct and its approaches having become dangerous to public use, the city adopted a resolution requiring the railway company to repair the bridge, and commenced proceedings by mandamus to compel it to make such repairs. It was held by the Supreme Court that the railway company could be compelled at its own expense to repair the viaduct, notwithstanding the contract previously made.”
In. West Chicago Railroad v. Chicago, 201 U. S. 506, 26 Sup. Ct. 518, 50 L. Ed. 845, it appeared that the railroad company under the
“Wliat the city asks, and all that it asks, is that the railroad company be required, in the exercise of its rights and in the use of its property, to respect the public needs as declared by competent authority, upon reasonable grounds to exist. This is not an arbitrary or unreasonable demand. It does not, in any legal sense, take or appropriate the company’s property for the public benefit, but only insists that the company shall not use its property so as to interrupt navigation.”
In New Orleans Gas Co. v. Drainage Comm., 197 U. S. 453, 25 Sup. Ct. 471, 49 L. Ed. 831, it was held that the changing of the location of gas pipes, at the expense of the gas company, under the streets to accommodate a system of drainage, did not amount to a deprivation of property without due process .of law.
In Cincinnati, Indianapolis & Western Railway Company v. City of Connersville (November 28, 1910) 218 U. S. 336, 31 Sup. Ct. 93, 54 L. Ed. 1060, the court said:
“The question as to the right of the railway company to be reimbursed for any moneys necessarily expended in constructing the bridge in question is, we think, concluded by former decisions of this court. * * * The railway company accepted its franchise from the state, subject, necessarily, to the condition that it wotild conform at Its own expense to any regulations, not arbitrary in their character, as to the opening or use of streets, which had for their object the safety of the public, or the promotion of the public convenience, and which might, from time to time, be established by the municipality, when proceeding under legislativo authority, within whose limits the company's business was conducted.”
The court further said in that case:
“This court has said that ‘the power, whether called police, governmental, or legislative, exists in eacli state, by appropriate enactments not forbidden by its own Constitution or by the Constitution of the United States, to regulate the relative rights and duties of all persons and corporations within its jurisdiction, and therefore to provide for the public convenience and the public good.’ ”
' What does that section contain more than is contained in one of the prior ordinances? When we turn to the original ordinance of 1875 we find that by section 12:
“It shall be the duty of the company to furnish and run a sufficient number of cars to accommodate the traveling public, on all streets which they shall use and occupy for railway purposes.”
' The city has the right to limit the number of people to be carried in each car; and section 2 of this ordinance does no more than section 12 of the ordinance of 1875, namely, to require the company to furnish cars for people desirous of transportation.
It is to be observed, and it is a very important point, that no penalty whatever is by this ordinance imposed upon the company for a failure to comply with section 2. No penalty was imposed upon the company by the original ordinance for a failure to comply with section 12. The company is not subject to any fine. But it is said that the company is subject to forfeiture, and that the state can commence an action if the company fail to perform the functions which it agreed to perform. That was exactly what the state could have done at any time, and this ordinance does not for the first time create that right. To say that this ordinance interferes with the right of the state to maintain such a proceeding is to say that which would not be justified either by the law or by the facts.
“Tliat whenever any passenger shall be admitted into any of said cars in excess of the carrying capacity thereof as in said ordinance defined, said Minneapolis Street Railway Company shall forfeit and pay to the city of Minneapolis the sum of $50 for each and every i>assenger so admitted.”
I omit for the present the proviso in that section. What does that section provide so far? It provides no more than if the company receives persons in excess of 75 into a car it shall pay $50 for each1 person in excess of that number. There is nowhere found in that section any provision requiring or authorizing the company to receive more than 75 persons. It expressly forbids the taking into a car of more than 75 persons; and expressly forbidding that, of course it altogether abolishes and entirely puts to one side any obligation on the part of the street railway company to stop to take on passengers when there are more than 75 persons in a car. The street railway company with 75 persons in one of its cars has the right to refuse to carry any more passengers in that car.
Counsel speaks of the common-law obligation of the company to stop at crossings and take on passengers; but here the common-law obligation to do that has been modified and necessarily restrained, and practically abolished by this ordinance. The city council has the right to regulate the running of street cars in that respect. If it says in the exercise of its power, as it may say, that after 75 people are in a car no more shall be taken on, that would undoubtedly relieve the company of its obligation to stop and take on passengers. The company would have a perfect right to run a car from one end of the line to the other, if there are 75 people in it, without stopping anywhere except to allow passengers to alight. This ordinance does not require the company to stop a car after 75 people are in it, and imposes no penalty if it refuses to do so.
“Provided, that such payment shall not be required in any case wherein another car on the same line, proceeding on the same track and in the same direction and containing fewer passengers than the carrying capacity thereof, shall at the time be within 300 feet of the point where said excess passenger is admitted.”
That, to my mind, is the weakest part of the ordinance, and shows that the city council expressly allowed the public to do what they refused to allow the street car compa^r to do. They refused to allow the company to overcrowd its cars, but did allow the public to do so. I can see no reason whatever for any such proviso in the ordinance. If it is an evil to crowd 150 people into a car, it is just as much of an evil when there is another car within 300 feet as it is when there is another car following within 600 feet. I see no defense whatever for that proviso. But the fact that I see no reason for putting that proviso into the ordinance is no ground for saying that the whole ordinance is unreasonable, or that the company has been deprived of its property without due process of law, or that the ordinance impairs the obligation of the contract between the street car company and the city.
What does this proviso in fact require? It has been said that it requires the company to run its cars 300 feet apart during the hours named in the ordinance. I find no provision of that kind whatever in the ordinance. There is nothing in the ordinance in this section 3 or in the proviso, from which any such requirement as that can be spelled out. The ordinance in section 2 says that the company shall furnish cars sufficient in number for the convenience of the public; but it nowhere says that they shall be run 300 feet apart. The fact is that, so far from the proviso imposing an obligation upon the company, or depriving it of its property without due process of law, it relieves the company from the obligation imposed upon it in another
But, waiving that point, I am asked to consider the expense to which this company would be put in complying with this ordinance, as far as it appears from the proper allegations in the bill. It is alleged in the bill that the ordinance would require the purchase of 2,400 cars, and the employment of many more employes, and that the total expense thereof would be over $14,000,000. But it is admitted that such estimate is based upon a construction of the ordinance which requires cars to be run on every line 300 feet apart during the hours named. That construction is not warranted by anything found in the ordinance. There is no ground for saying that the company is required to run cars 300 feet apart; and there is no ground for saying that it is required to buy cars sufficient in number to fulfill such a condition. This, statement as to expense being based upon that assumption, and that assumption being incorrect, it follows that there is no allegation in the bill which the court can consider as to what the additional cost to the company would be, in order that it might comply with the terms of the ordinance. It certainly cannot cost anywhere near the sum alleged in the bill, because the sum mentioned is arrived at by an entirely inaccurate assumption.
The case from the city of Detroit was much commented on by counsel for the complainant. But all argument of that kind is completely answered, by reading the first section of the ordinance there in question. That section is as follows:
“Every person, firm or corporation operating cars upon the streets of the city of Detroit shall, between the hours of 5 o’clock a. m. and 8:30 o’clock a. m., and between the hours of 11:30 a. m. and 2 o’clock p. m. and between the hours of 4:30 o’clock p. m. and 6:30 o’clock p. m., Sundays excepted, provide a sufficient number of cars of sufficient capacity to accommodate and provide for the transportation of passengers, so that no car, in consequence of the failure to so provide, shall carry a greater number of passengers than the seating capacity of said car and one-half as many more.”
That is practically as the ordinance here reads:
“Provided that it shall not be lawful for any car, when it is filled with passengers to or in excess of the number herein specified, to pass by without stopping for additional passengers, or decline to receive passengers; whenever so signaled, unless another ear on said line and following in its rear is within a distance of two hundred feet.”
! That ordinance is very different from this ordinance. That ordinance also provided in section 5 that "any violation or failure to comply with the provisions of this ordinance shall be punished by a fine not to exceed one hundred dollars.” That ordinance in one breath prohibited the company from carrying more than 75 passengers in a car, and in the next breath required it to carry more than 75 passengers in a car; so that it in fact required the company to carry any number of persons that might be got into a car, but for each person over 75 required the company to pay a fine. That is the legal effect of the ordinance. Under that ordinance, if a car has 75 persons in it, and a person wants to get on, the car must stop, and the company must take him on, but it must pay for that person a fine of between $5 and $100. The only way by which the company could be released from this liability was by running cars every 20 seconds. That would impose so tremendous a liability and obligation upon the company in the purchase of new equipment, that the ordinance was held by Judge Swan to be unreasonable and void.' That decision seems to be based largely upon the fact that so large an equipment could not be provided within the time given by the ordinance. If we had here such an ordinance as that I should find no difficulty whatever in coming to the same conclusion as was reached in that case.
But.here we have no such ordinance; we have an ordinance which prohibits the company from taking on more than 75 people. Under the terms of this ordinance, the company, as I have said repeatedly, is under no obligation whatever to take on more passengers. The company cannot be punished if it refuses to take on more, The only remedy is for the city to proceed by quo warranto to forfeit the company’s charter for a failure to furnish sufficient accommodations for the .traveling public.
That being my conclusion, the result, of course, follows that the motion for a temporary injunction must be denied.
83 N. W. 627, 86 N. W. 69, 63 L. R. A. 175.