55 So. 176 | Ala. | 1911
This is a petition by the appellant, the relator being a municipal corporation, alleging that the appellee owns and operates a street railway within the corporate limits of said city; that the city council of said city has passed ordinances for the grading, paving, and otherwise improving certain streets in said city over which the lines of said railway .company run; that said city council had adopted ordinances “requiring the defendant to remove the rails now laid on said portions of said streets, and to replace the same with seven-inch Trails, said rails to be seven inches in height, and weigh
However, this proceeding is not to collect an assessment, and, if those who are to pay the assessments are not raising any objections, this defendant cannot. The city is proceeding to improve its streets, and the question is, Has it the power to require the change of the tracks of the defendant as required?
Some of the remaining causes of demurrers deny that the city has any right- to make such a requirement-, and others raise the point that the petition does not show that the requirement is a reasonable exercise of the power vested in the city council, or that it is “necessary to the paving of said streets or portions thereof with the material and in the manner set forth.” As to the last-named cause, the amended petition alleges that “the rails required to be taken up are not suitable for the paving provided for, and said paving could-not be done in a substantial manner without the removal of the old rails and substitution of the ones provided for.”
It is laid down generally “that the state, or its duly authorized municipality, may require a street railway company to do whatever is required for the health, safety, and welfare of the community, for the authority to enact measures 'for this purpose never passes from the sovereign, no matter what grants it may make. It must follow from this fundamental principle that all corporations take their rights and privileges subject to the general power which permanently resides in the state;” also, that, when any regulation is prescribed by the Legislature of the state, the courts can only inquire whether it is constitutional, but, when it is prescribed by a municipal corporation, the courts can also inquire whether the regulation is a reasonable one. — Elliott on Roads & Streets (2d Ed.) § 758, pp. 815, 816. It is also
We have examined all of the authorities referred to by the author, except one, which is not a court of last resort, and do not find that this point was presented in either of them. Several of said cases hold that, where the charter powers of the city or the contract by which the railway company was permitted to nse the streets did not authorize it, the city could not require two men, to wit, a conductor and a driver, to be on each car.— Brooklyn Crosstown R. Co. v. City of Brooklyn, 37 Hun (N. Y.) 413, 417; City of Toronto v. Toronto Street Ry., 15 Ont. App. 30, 35. The case of Slate, Trenton H. R. Co. v. Trenton, 53 N. J. Law, 132, 20 Atl. 1076, 11 L. R. A. 410, held such an ordinance not on its face unreasonable, and that the burden was on the railway company to show that it was. Several others hold that where the railway charter was- silent as to what
In Electric Railway Co. v. City of Grand Rapids, 84 Mich. 257, 47 N. W. 567, tbe statute under which the street railway company was organized and tbe ordinance of the city conferred tbe right on tbe company to traverse tbe streets and provided for iron poles in the' fire limits and wooden poles beyond tbe fire limits, and it was held that tbe city could not afterward attach a. condition to tbe use of ‘wooden poles that tbe company should furnish transfers free of charge. Tbe case of Western Saving Fund Society v. City of Philadelphia, 31 Pa. 175, 72 Am. Dec. 730, simply decided that a city could not violate its contract made with a gas company.. Tbe case of City of Waterloo v. Waterloo Street Railway, 71 Iowa, 193, 196, 32 N. W. 329, 330, where tbe city bad granted to tbe railway company tbe privilege of constructing and operating a street railway over the' streets, without specifying what kind of rails .was to be used, decided that tbe city could not enjoin tbe railway from using a certain kind of rails on tbe ground that it would cause its track to be a nuisance, because tbe city
The state of Iowa had a statute of similar import, and the city of Sioux City granted to a street railway company the right to build and operate a street railway over its streets, providing that, whenever any of its streets should be macadamized, said street railway company should macadamize between its tracks. Subsequently the Legislaure passed an act requiring all street railway companies to macadamize also to the extent of one foot outside the rails. The Supreme Court •of the United States held this act valid, saying that “the company took its charter subject to the provision •of that section,” that “it was not in the power of the
Counsel for appellee insists that in the Sioux City Case the Legislature had expressly reserved the right to repeal, alter, or amend the charter of such companies. Section 10, art. 14, of our Constitution of 1875, and section 238 of our present Constitution above cited, reserve the like power to the Legislature. Section 1374 of our Code of 1907 confers full power on municipal corporations in regard to paving and improving the streets, and section 1269 requires street railroads to use such rails as may be prescribed, and that “any public utility using the streets of the city or town shall at all times, in the manner prescribed by the council, render the use of such streets safe to vehicles and persons, and all tracks on such streets shall, when required by the council, be placed at any fixed grade, and changed, free of expense to the municipality, when found necessary.” This court at an early day, in referring to section 1 of article 13 o:f the Constitution of 1868, said that the object and scope of it was “the prohibition of the grant of the corporate power to private corporations, except subject to repeal or amendment at the legislative will. Municipal corporations, mere governmental. agencies,
In the case of Lindsay v. Mayor, etc., of Anniston, 104 Ala. 257, 16 South. 545, 27 L. R. A. 436, 53 Am. St. Rep. 44, it was contended that the ordinance prohibiting hackmen or transfer men from entering the railway station to solicit patronage, although they had been given that special privilege by the railway company,
We hold that the result of these authorities is that when any public utility uses the streets of a municipality, under any grant of authority, it tabes the right, subject to the paramount right of the municipality, to grade and improve its streets, and to malee such requirements'and regulations as are necessary and reasonable in order to make the streets suitable and convenient for the use of the traveling public. As to whether the requirements in this case are necessary and reasonable must be determined when this case comes to be tried on the merits.
The ordinance is presumed to be reasonable until the contrary appears. — Van Hook v. City of Selma, 70 Ala. 361, 365, 45 Am. Rep. 85 Gamble v. City of Montgomery, 147 Ala. 682, 684, 39 South. 353. It is not denied that there is a. distinction between the legislative and the contractural acts of a municipal corporation, and it can no more than an individual violate its contract, but these being the general principles involved, if there were any contractural rights violated, the respondent should have put in evidence the contract, in order that that matter might be considered by the court. We cannot presume, in the absence of evidence that there is a contract which has hen violated.
The court erred in sustaining the demurrers to the petition as amended.
The judgment of the court is reversed, and a judgment will be here rendered, overruling the demurrers to the petition as amended, and the cause is remanded.
Reversed, rendered, and remanded.