Wash. v. Ry. Co

• Decision Date: 14 June 1900
• Citation: 98 Va. 344,36 S.E. 385
• Court: Virginia Supreme Court
• Parties: WASHINGTON, A. & M. v. RY. CO. v. CITY COUNCIL OP ALEXANDRIA.

98 Va. 344

36 S.E. 385

WASHINGTON, A. & M.

v.RY. CO.

v.CITY COUNCIL OP ALEXANDRIA.

Supreme Court of Appeals of Virginia.

June 14, 1900.

MUNICIPAL CORPORATIONS—MANDAMUS—CITY ORDINANCE — STREET RAILWAY — REASONABLENESS—QUESTION FOR COURT—JUDGMENT — NON OBSTANTE VEREDICTO — CHANGING RAILS—PAVING.

1. On trial of mandamus by a city to compel a street-railway company to substitute a grooved rail for tram girder rails, as directed by an ordinance, so as to facilitate the paving of a street, questions as to whether or not the tram rails would obstruct the use of the street after such paving, and should not be approved by the city authorities, or whether the grooved rails were a necessary incident to the paving, and whether the tram rails were not of an approved pattern, and had been approved by the city authorities, were submitted to a jury, which found in favor of defendant railway company. Held, that a judgment in favor of the city, entered by the court non obstante veredicto, was proper, as questions of the reasonableness of the ordinance were for the court alone.

2. On mandamus by a city to enforce obedience to an ordinance directing a street-railway company to change its rails to facilitate paving, it appeared that the ordinance was not arbitrarily or capriciously passed, but in accordance with a sentiment expressed by a great many citizens, and that the matter had been considered by a committee on streets in conference with the engineer of the railway company, and the new rails recommended to the council, and that such substitute rails were being successfully used in another city. Held sufficient to warrant a finding that the ordinance was reasonable, and to sustain a judgment in favor of the city.

Appeal from circuit court of city of Alexandria.

Mandamus by the city council of Alexandria against the Washington, Alexandria & Mt. Vernon Railway Company to compel compliance with an ordinance directing it to change its rails to facilitate paving. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J. M. Wilson and J. R. Oaton, for appellant.

Gardner S. Boothe, for appellee.

KEITH, P. Appellant, 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, rails to be approved by the committee on streets, and to grade and pave on the space between the railroad 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 rails on said square in King street, and to lay in their stead a grooved rail, with a groove not exceeding 1 1/8 inches in depth, and with a tram not lower than 1 1/4 inches 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 presented its petition to the judge of the circuit court of the city of Alexandria for a writ of mandamus to compel a compliance with the requirements of said ordinance.

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, because 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 37 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 on King street 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, are 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, and, the demurrer being overruled, it answered, denying the reasonableness of the ordinance; 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 & Mt Vernon Railway Company to remove the rail now laid upon said square, and to substitute a grooved pattern set forth in said petition, were duly passed, approved, and published as required by provisions of the charter of the city, and whether or not the conditions to the passage of the ordinances for the improvement of said streets have been complied with.

"(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 Royal 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 Royal 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 7th, 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 Royal 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...