78 Minn. 331 | Minn. | 1899
On September 20, 1889, the city of St. Paul passed Ordinance No. 1227, commonly known as the “General Electric Ordinance,” by which the defendant was authorized to construct and maintain on the streets of the city 16 different lines of street railway, all of which converged in or towards the central or business portion of the city. These, when taken together, made a complete system, run
“The common council reserves and shall possess the right, at any time, and from time to time, after January 1, 1892, to order the construction and completion, by 'said St. Paul City Railway Company, of any new lines of railway, or the extension of any present or future lines -of railway upon any and all streets in the city of St. Paul upon which sewers shall have been constructed, and all lines or extensions so ordered shall be constructed and in operation within one year after such orders are made: provided, that when such new lines or extensions are constructed all of the provisions of this ordinance shall apply thereto.”
The City Railway Company accepted the provisions of this ordinance, and constructed and are operating all the lines therein provided for. Among the lines provided for was one commencing on Fifth street at Wacouta street; thence, on Fifth street to Wabasha str.eet; thence, on Wabasha, street, to University avenue; and thence, on University avenue, to the west limits of the city. This-line was known as the “University Avenue Line.” This is the line upon which the University avenue Interurban cars are operated, except as hereinafter stated. On May 20,1890, the common council passed Ordinance No. 1339, amendatory of, or supplemental to, Ordinance No. 1227, authorizing the City Railway .Company to construct and operate a single track on Eighth street, from Robert street to Wabasha street, to be used by the railway company as a “loop,” upon which all the cars entering that portion of the city should be run, excepting under circumstances which should render running thereon impracticable. Of course to render this line available as a “loop,” it was necessary to use in connection with, and as a part of it, the existing line on Robert street. The city railway accepted the provisions of this supplemental'ordinance, and built the line on Eighth street and since that .time, instead of operating their University avenue Interurban cars on Fifth street down to Wacouta street, run them around the Robert and Eighth street “loop.”
On May 8, 1897, the city council passed still another ordinance, No. 1925, by which the defendant was ordered and directed within one year to change and extend the operation of its University avenue, or Interurb,an, and its Como avenue lines of cars by running them easterly on Fifth street to Broadway street (a distance of five blocks east of Robert street), thence north on Broadway to Seventh street (a distance of three blocks), thence west on Seventh street to Wabasha. The effect of this was to extend the service of these two lines five blocks further east, and to make the “loop” on Broadway and Seventh streets instead of Robert and Eighth streets as before. These portions of Fifth, Broadway and Seventh streets
The trial seems to have been conducted upon the theory that Ordinance No. 1227 was to be construed precisely as if it was a contract between two private individuals. It is but fair to say that counsel for the city was largely responsible for this. ' This, however, is altogether a too narrow, and even erroneous, view to take of the case. We shall assume, without discussion, that Ordinance No. 1227 contains a valid contract between the city and the street railway company, the. obligation of which the former cannot impair.
But this proposition is subject to the following qualification. Among the governmental powers vested by the city charter in its common council is “the care, supervision, and control of all public highways, bridges, streets,” etc. Without attempting to define the extent or limits of the power thus granted, it unquestionably gives the common council authority to enact such police regulations regarding the use of the streets as are necessary for the safe and convenient enjoyment of them by the public for the purposes for which they are designed. It is fundamental that a municipality cannot, at least without express legislative authority, deprive itself by CQntract of any governmental powers conferred upon it for public purposes. Flynn v. Little Falls E. & W. Co., 74 Minn. 180, 77 N. W. 38. Hence any authority to use the streets granted to the defendant must be construed as being subject to the police power of the city over the streets, whatever may be the language of the grant. For example, if by reason of-increased traffic on the streets prescribed for the construction and operation of the “loop,” or for
i Whether Ordinance No. 1925 was enacted in the exercise of the “police power,” strictly so called, or to secure more and better service for the traveling public by the extension of the Interurban and Como avenue lines, and, if the former, whether it was or was not a reasonable exercise of the police power, does not appear. Of course, if the ordinance was enacted in the exercise of the police power, it will be presumed to be reasonable and valid until the contrary is made to appear. Both of the counsel seem to have tried the case upon the assumption that the object oí the ordinance was to extend the service on the Interurban and Como avenue lines, under the authority reserved to the city council by section 18 of Ordinance No. 1227. The court also decided the case upon this theory. But, even on this assumption, in our judgment, the facts did not justify the conclusion at which the court arrived.
The position taken by the court below, and by the counsel for the defendant in this court, was that the power reserved to the common council in section 18 was only the right to compel the construction of new lines, or the extension of present or future lines, on streets or portions of streets not already provided with street-car service, and not the right to compel the extension of the service of the cars of one line over'or along streets or portions of streets upon which other lines are already operated. In support of this view, especial stress is laid upon the particular- words and expressions used in the section, such as “the construction and completion,” and “shall be constructed and in operation”; also upon the fact that the ordinance provides for a complete system of transfers from one line to another, without additional cost, and requires the cars on all lines to be
With all due deference to the learned court and counsel, we think they attach altogether toó much weight to these facts The right of transfer from one line to another, without extra charge, is, as every one knows, not the equivalent of a continuous ride on the same car to the place of destination. Again, while it is probably true that what was more particularly in mind in framing this section was cases where public convenience would require car service on streets or parts of streets not already provided with any car service at all, and hence where the extension of the service would involve the construction of a track, yet there is nothing in the section which limits its operation to such cases. A railway track is only a means to an end. What is needed is not merely the track, but the service. That is what the section was designed to secure. There is nothing in it limiting the right to require an extension to the outer end of an existing line. Public needs may require it at either end. The plan or scheme of street-railway systems is generally to furnish the means of communication between the outlying portions of a city and its business or central portion. This was evidently the scheme of the system of lines provided for in Ordinance No. 1227. As the.business portion of a city increases in area, or its business center shifts, as is often the case, there arises a necessity for extending the street-car lines inwardly, so as to reach or penetrate it. If there had been no existing line operated, on Fifth street between Robert street and Broadway street, or upon Broadway between Fifth and Seventh streets, or on Seventh from Broadway to Wabasha street, we do not see how it could be successfully claimed that the extensions required by the common council were not within the provisions of section 18. Why should it be held not within them merely because there is already a railway track on those streets, over which the extended service is to be furnished, and hence the defendant not required to incur the expense of building one? It seems to us that it is a case for the application of the axiom that the whole includes all its parts.
But it is suggested that, if this extension can be required, there is no limit to the power of the common council in the matter of ex
Our conclusion is that the order appealed from should be reversed, and the case remanded for a new trial. It is so ordered.