98 Va. 344 | Va. | 1900
delivered the opinion of the court.
Ajipellant, with the consent of the appellee, constructed a passenger railway over certain streets in the city of Alexandria, in the year 1892, using rails of an improved pattern, known as the tram girder rail, such as were then commonly in use, and as are still used by many street railways.
The City Council of Alexandria, by an ordinance approved July 15, 1898, ordered that a portion of King street, one of the principal thoroughfares of the city, should, for the distance of one square, be repaved with vitrified brick on a six-inch concrete base; and, by another ordinance of the same date, directed the appellant company to put down on the said square, mils to be approved by the Committee on Streets, and to grade and pave on the space between its railway tracks and two feet on each side thereof in a similar manner; and, by another ordinance, approved September 23, 1898, further directed the appellant company to take up its Tails on said square in King street, and to lay in their stead “a grooved rail with, a groove not exceeding one and one-eighth inches in depth, and with a tram not lowertlian one-fourth inch below the head, and with the groove of the outline shown by the full lines of the drawing attached to said ordinance.
The appellant company failing to obey, the City Council
The petition sets forth that the ordinance is a reasonable regulation of the use of the street, which the city has full power to make under section 33 of its charter, and under the general law; that the paving of King street is greatly needed and desired by the citizens of Alexandria, and a grooved rail is a necessary incident to the improvement, King’ street being the principal business street of the city, with a heavy wagon traffic upon it, and measuring only thirty-seven feet from curb to curb; that owing to the narrowness of the street, traffic is compelled to follow the tracks and rails of the appellant company, and therefore any railway track on King street is to some extent an impediment to its free use, and that for these reasons the rail used should be such as to impede general traffic in the least possible degree.
It is further averred that the rail now used upon King street is such as to prevent vehicles from turning out of the railway track, except with great strain to the wheels, axles and running gear, and jolting in direct crossing. The form of the rails and the nature and extent of the inconvenience they occasion is set out with much detail in the petition, and for the reasons thus stated the petition avers that the rails as at present laid are a nuisance, and an obstruction to the ordinary use of the street.
To this petition the appellant company demurred. The demurrer being overruled, it answered; and thereupon issues were framed to be tried by a jury, as follows:
“ 1. Whether or not the several ordinances alleged and set forth in the petition, directing the grading and paving of King street, between the west crossing of Fairfax street and east crossing of Royal street, and directing the Washington, Alexandria and Mt. Yernon Railway Company to remove the rail
“ 2. Whether or not the present rails in use by respondent on King street, between the west side of Fairfax street and the east side of Eoyal street, will obstruct the ordinary use of said portion of King street, provided the proposed improvement of said portion of King street is made by the city of Alexandria, as set out in the ordinance, approved by the Mayor of said city on July 15, 1898, and entitled An ordinance to provide for the grading, paving and curbing of King street from the west crossing of Fairfax street to the east crossing of Eoyal street, and for the assessment of the costs thereof under the thirty-third section of the city charter as amended by an act of the General Assembly, approved February 7, 1898.’
“ 3. Whether or not the present rails in use by respondent on King street between the west crossing of Fairfax street and the east crossing of Eoyal street, will be and are of approved pattern—that is, of .such pattern on account of merit and excellence and adaptation for the purposes for which they are used, as should 'be approved by the city authorities of Alexandria, provided the proposed improvement of said portion of King street is made by the city of Alexandria, as set out in the ordinances approved by the Mayor of said city on July 15, 1898, and entitled An ordinance to provide for the grading, paving and curbing of King street from the west crossing of Fairfax street to the east crossing of Eoyal street, and for the assessment of the costs thereof under the thirty-third section of the city charter, as amended by an act of the General Assembly, approved February 7, 1898.’
“4. Whether or not the proposed rails mentioned in the ordF
“ 5. Whether or not at the time the present rails were laid they were of the most approved pattern and such as were then commonly in use.
“ Were said rails so laid without objection by the city authorities, and with their approval or acquiescence.”
The jury found the first of-these issues in favor of the City Council. Upon the second, third, fourth and fifth it found in favor of the appellant. The appellant, therefore, could not be prejudiced by any instructions given by the court, or any ruling made upon the admission of testimony respecting the trial upon the issues thus found in its favor.
When the cause came on to be heard, after the jury had rendered their verdict, the court rendered a judgment non obstante veredicto, and awarded the writ of mandamus in accordance with the prayer of the City Council of Alexandria. To this judgment a writ of error was awarded.
The finding of the jury upon the first issue is clearly warranted by the proof. Eor do we think there was any error in the final judgment rendered by the court. It is true that the jury have found by their verdict, in response to the issues submitted, that the rails now in use by appellant on King street will not obstruct the ordinary use of that street when the proposed improvement is made by the city of Alexandria, as set out in its ordinance of July 15, 1898. They also found that the present rails are of approved pattern—that is, of such merit and excellence and adaptation for the purposes for which they are used as should, in the opinion of the jury, be approved by the city authorities of Alexandria. The jury have also found by their verdict that the substitution of the grooved rail, as proposed by the city, is not a necessary incident to the paving and improving of King street with vitrified brick; ‘that, the rails in present use were, at the time they were laid, of the most improved pattern, and such as were then commonly in use, and were laid not only without objection by the city, but with its approval and acquiescence.
Kow, it may very well be that upon all these issues the jury were justified in all their findings by the evidence submitted to them. It might also be that the court was of the same opinion upon the evidence, and yet it is entirely consistent with both these concessions that its judgment, non obstante veredicto, should be affirmed.
The real issue to be considered and decided is this: Was the ordinance of the city a reasonable one, regard being had to all the circumstances of the case, or did the City Council, in passing the ordinance, act capriciously and arbitrarily?
Its charter and the general law confer upon the city of Alexandria ample power to control and regulate the laying out,
In Burkhart v. City of Atlanta, 30 S. E. 32, the court said: “An incorporated city is a government within a government. It has its own executive, judicial and legislative branches. It is a creature of the State, and can exercise no power that is not derived from its creator.
“ Where legislative power is conferred upon it by the State, it is necessary that a degree of freedom should be allowed in its exercise; otherwise, the city would be so hampered in the government of its people as would defeat the very ends of its incorporation.
“ Hence it is that the courts will never interfere with the free exercise of such rights as are left to the discretion of a corporate authority unless such authority should go beyond the scope of power delegated, or unless the discretion given should be abused by an arbitrary exercise thereof, and by a plain and unwarranted violation of private rights.”
In Dillon on Municipal C’orps., section 95, it is said: “ When a municipal corporation by its charter is empowered, if it deems the public welfare or convenience requires it, to open streets or make public improvements thereon, its determination, whether wise or unwise, cannot be judicially revised or corrected.”
“ To the same effect see Gloucester Ferry Co. v. Penn., 114 U. S. 196-203. ‘The power to regulate commerce,’ (says Mr. Justice Field, speaking for this court), ‘ is the power to prescribe the rules by which it shall be governed, that is, the conditions upon which it shall be conducted.’
“ If it be said in this case that the city had already regulated the use by prescribing that there should be two tracks, the answer is that the power of regulation is a continuing power. It is not exhausted by being once exercised, and so long as the object is plainly one of regulation, the power may be exercised as often as and whenever the Common Council may t.Tn'nlr proper. The use of the street may be subjected to one condition to-day, and to another and additional one to-morrow, -provided the power is exercised in good faith, and the condition imposed is appropriate, as a reasonable regulation, and is not imposed
In Louisville City Ry. v. City of Louisville, 8 Bush. (Ky.) 415, Judge Lindsay, speaking- for the court, said: “ We will not assume that the city government, in the exercise of the legislative power to regulate the reconstruction of the railway company on Jefferson street, acted capriciously or without sufficient reason. The presumption of the law is that it did not.”
It is not necessary to make further citation of authority to show that the City Council was clothed with ample power to control and regulate the streets of the city; that this was a continuing power to be exercised as often and whenever the Council may think proper, subject only to the limitation that it must act in good faith; that the regulation must be reasonable, and not imposed arbitrarily or capriciously, the presumption being in favor of the propriety and validity of what the city has directed to be done.
In Dillon on- Mun. Corps., sec. 327, it is said: “ Whether an ordinance be reasonable and consistent with the law or not is a question for the court and not the jury, and evidence to the latter on the subject is inadmissible.
But in determining this question, the court will regard all the circumstances of the particular city or corporation, the objects sought to be attained, and the necessity which exists for the ordinance. Begulations proper for a large and prosperous city might be absurd or oppressive in a small and sparsely populated town, or in the country.”
Without going into the evidence in detail upon the subject of the reasonableness of the ordinance, we are of opinion that it clearly shows that there was no fraud in its passage; that the city did not act capriciously, but in accordance with what it deemed best to promote the interests confided to it; that the action it took was urged upon it by many of its citizens; that
It further appears that representatives of the appellant were invited to attend a meeting of the Committee on Streets and the City Engineer, where the whole subject was carefully considered, and, as a result of their deliberations, the engineer and committee recommended the proposed rail to the City Council, and they thereupon passed the ordinance requiring its adoption.
In view of these facts, it is manifest that the appellant has not overcome the presumption in favor of the reasonableness of the ordinance which it was ordered to obey; that it has not shown that it was passed arbitrarily or capriciously, and the judgment of the Circuit Court must be affirmed.
Affirmed.