122 Minn. 163 | Minn. | 1913
Proceedings in mandamus, brought by the city of St. Paul, to compel defendant to construct and operate an extended line of street railway in said city, in compliance with ordinance No. 2905, approved May I, 1910, by which the common council, acting under
Defendant is a street railway corporation, and by ordinance No. 1227, above referred to, was granted a franchise to construct and operate upon certain streets of the city lines of street railway. Defendant accepted the franchise and all the terms and conditions imposed by the ordinance and subsequently constructed its car tracks and now operates its cars upon said streets in accordance therewith. Section 18 of the ordinance provides as follows:
“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 Saint Paul City Railway Company of any new 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 the provisions of this ordinance shall apply thereto.”
Ordinance No. 2905, being the order of the city council requiring, the construction of the new line, proceeds as follows:
“That the St. Paul City Railway Company be and it is hereby ordered and required, under and pursuant to Ordinance No. 1227 of the city of St. Paul, approved Sept. 20, 1889, and more particularly under and pusuant to section 18 of said ordinance, and within the time therein required, to lay and construct a double track line of street railway, with all necessary poles, wires and appliances for the operation thereof, upon St. Clair street from West Seventh street to Oxford street, and to properly connect the tracks thereof with the present tracks upon West Seventh street, and when so constructed to ran and operate cars upon and over the same.”
“IIow far and to what distance any of these lines shall be extended into this business or central portion of the city is, and must*167 of necessity be, a matter largely addressed to the judgment and discretion of the common council. But if it was attempted to require the extension of the service of any line over a track on which another line was operated, entirely through the central portion of the city, out into a suburban district on the opposite side of the city, we apprehend that, unless there were some very exceptional circumstances creating a necessity for it, a court would very unhesitatingly hold that the common council had no authority, under either section 18, or the general police power, to require this to be done.”
While it is probable that decisions of other courts may be found, in which a distinction is made in cases involving expressly reserved authority, such as that contained in section 18 of'the ordinance in question, and those involving the general municipal authority implied by law, we are content with the rule as stated by our court, which we follow and apply; holding that the power reserved by section 18 of defendant’s franchise may be exercised only when public interests require it.
The rule is founded on the necessity of committing a wide discretion to the tribunal authorized to determine such questions, and the courts rarely interfere even in those cases where judicial review is provided for. Nellis, Street Railways, § 121. The presump
There can be no serious question but that the common council is authorized by section 18 to provide street car accommodations to the people residing in this section of the city, and if the proposed line is not manifestly unreasonable and unfair to defendant, the ordinance providing for the construction of the line must be sustained. But in determining the reasonableness of the requirement, consideration should not be limited exclusively to the propriety or necessity of accommodating those living at one end-of the proposed line. The most feasible route to reach that section of the city, the difficulties to be encountered in constructing the line, if any, the comparative cost and expense of different routes, either of which would, if adopted, accomplish the desired object, should receive due consideration and attention. And though a mere difference of expense of construction should ,not be the sole guide in selecting the route, that fact is entitled to weight, in connection with all the facts and surrounding circumstances. The defendant is entitled to' fair treatment, and the reasonable demands of the city should promptly be responded to by defendant. In reference to the question whether an issue of unreasonableness is presented by the answer, we can do no better than to quote from the allegations made therein. The answer alleges, among other things:
“Defendant specifically alleges that St. Clair street from, approximately, its easterly terminus to, approximately, Avon street, mns along the middle of a steep declivity and hill, so that access to St. Clair street is practically impossible from the territory upon either side of the street, and, for that reason, that portion of a street railway line upon St. Clair street, would receive but little patronage and would be of little use, if any, to the traveling public. That on the south side of said proposed line of railway, from West Seventh street to Victoria street, * * is vacant and unoccupied property. That at the westerly terminus of the proposed line of railway there is a considerable population, but this population could be best served, and would be naturally tributary to a line connecting with the present Grand Avenue line, and such a line would be only a few*170 blocks long and would only cost a small part of the cost of construction of the proposed St. Olair street line, and would better serve tbe public need; and for that reason, defendant specifically alleges that there is no public need or necessity for the construction and operation of a street railway line upon St. Clair street. * * * That the construction and operation of said line would necessarily involve an expenditure of many thousands of dollars by said defendant with no corresponding income or return therefrom. That the construction and operation of said street car line would not yield sufficient revenue •or income to said defendant to pay the actual and necessary expenses of running and operating the same, and its construction and •operation and the cost thereof would be a total loss and waste investment to the defendant, and deprive it of its property for no public use and without compensation.”
The answer further alleges that if defendant be required to construct the proposed line the result thereof would not benefit the public, and, on the contrary, would deprive defendant of its property without •due process of law and in violation of its constitutional rights. These allegations are of course conclusions of law, and we do not .set them out in full. The portions of the answer quoted, however, .set forth issuable facts, and bear directly upon the question of the reasonableness of the order for the construction of the proposed line. While the allegations are not as complete and specific as they might perhaps have been made, we are of opinion, within the rule guiding the determination of the sufficiency of pleadings when challenged by .general demurrer, (2 Dunnell, Minn. Dig. § 7724) that an issue in respect to the question of reasonableness is presented, and should be determined as other issues of fact are determined. The order of the court below sustaining the demurrer to the answer will therefore be reversed, and the cause remanded for trial.
Order reversed.