Port of Mobile v. Louisville & N.R. Co.

• Decision Date: 03 May 1888
• Citation: 84 Ala. 115,4 So. 106
• Court: Alabama Supreme Court
• Parties: PORT OF MOBILE v. LOUISVILLE & N. R. CO.

4 So. 106

84 Ala. 115

PORT OF MOBILE v. LOUISVILLE & N. R. CO.

Supreme Court of Alabama

May 3, 1888

Appeal from chancery court, Mobile county; THOMAS W. COLEMAN, Judge.

R H. Clarke, for appellant.

Gaylord B. Clarke and F. B. Clarke, Jr. for appellee.

SOMERVILLE J.

The present bill is filed by the Louisville & Nashville Railroad Company against the port of Mobile to enjoin the enforcement of an ordinance of that municipality, which declared it unlawful for any person or corporation to load or unload cars in the public streets of the city, under a penalty of not less than $25 for each and every violation of the provision. The ordinance excepts cotton, coal, and ice in certain localities, but this exception has no material bearing on the present controversy. The bill claims for the complainant a vested franchise to exercise the right of loading and unloading freight along the line of its track constructed through Commerce street, in said city, and that the enforcement of the ordinance in the manner which has been threatened by the municipal authorities will operate as a total destruction of this valuable franchise, which the company had been peaceably exercising for about 18 years. It is averred that the ordinance in controversy is the exercise of unauthorized municipal power, and is therefore void, and that the defendant corporation, the port of Mobile, is insolvent, and the public officers and others who have undertaken to enforce the ordinance, by the threatened arrest of the complainants' employes, are pecuniarly irresponsible; and facts are stated from which it is made clear that the injury which will be suffered by the complainant in the abrogation of this right, and the consequent paralysis of its business, will be irreparable and cannot be recompensed by suits for damages at law. We, first, inquire as to the origin and nature of the right or privilege claimed by the complainant; second, whether the ordinance in question operates as an illegal interference with it; and, third, as to the jurisdiction of a court of equity to interfere by the aid of injunctive relief.

1. The basis of the alleged right in the complainant is a grant by the city of Mobile, in the form of an ordinance, passed in September, 1869, for the particular purpose, as the bill alleges, of enabling the railroad to reach the stores and warehouses situated on Commerce street; this grant being made under the authority of the charter of the railroad company created by legislative enactment. The complainant, as the owner of the charter of the New Orleans, Mobile & Chattanooga Railroad Company, is shown to be entitled to all the rights vested in that corporation. The charter of the latter company, enacted in November, 1866, expressly authorized the construction of its road across or through any street or highway; the only limitation upon the right being that the usefulness and convenience of such street or highway to the public should not be unnecessarily or materially impaired. Acts 1866-67, pp. 6, 15, § 13. An amendment to this charter, approved February 12, 1867, contained the following provision: "That the said company is hereby authorized and empowered to obtain, by grant or otherwise, from any incorporated city or village within the state, that may be situated upon or at the intersection or termini of any of its railroads, any rights, privileges, or franchises that any of said incorporated cities or villages may choose to grant in reference to the construction, maintenance, and management of the railroad of said company, its depots, cars, locomotives, and its business within the limits of such incorporated city or village, as hereinbefore named, is hereby authorized and empowered to grant to said company any such rights, privileges, and franchises as it may deem proper and advisable; and such privileges and franchises, when granted to and accepted by said company from any such incorporated city or village, shall be deemed and taken as rights, privileges, and franchises vested and confirmed in said company, and not liable thereafter to be revoked, changed, injured, or impaired, except with the consent of said company." Acts 1866-67, p. 400, § 5. That the legislature, under the general police power inherent in the state, had the constitutional power to authorize the city of Mobile to grant the right to construct a railroad track, upon which steam-engines are operated, across and through the streets of that city, must be conceded; and, after such permission, it would lie in the mouth of no one to complain that the changed use of the street would per se be a nuisance. Perry v. Railroad Co., 55 Ala. 413. Under the authority thus conferred in the charter of the company, the city of Mobile, on September 7, 1869, passed an ordinance by which it "granted" to the railroad the right of way through certain streets, including "also the right to lay a single track, with the necessary sidings and turn-outs, from the northern boundary of its depot, *** through Commerce street, *** in such manner as said company may deem expedient and necessary for its business and interests." Upon the faith of this grant the track of the road was constructed through Commerce street, with the necessary sidings and turn-outs, for the purpose of loading and unloading freight and merchandise into and from the various stores and warehouses located upon said street, and has been ever since continuously used for this purpose from day to day, without complaint or objection from any source, for a period of 17 or 18 years, until the attempted revocation of the ordinance in December, 1886. The privilege thus granted is obviously a franchise of the most valuable kind, being one of the most common examples of such a grant or privilege. Davis v. Mayor, 67 Amer. Dec. 186, 193. It is certainly a "right, privilege, or franchise" within the meaning of the company's charter, having reference, as it does, to the construction and management of the railroad, and the conduct of its business of transportation within the limits of the city of Mobile. Such a special privilege, conferred directly by legislative enactment, or in a mode provided for by such enactment, becomes a contract between the state and the corporators, and, as such, has always been protected from impairment by legislative action by virtue of both the federal and state constitutions, each of which prohibits the passage of any law by which the obligation of existing contracts is impaired or lessened. City of Burlington v. Railway Co., 49 Iowa, 144, 31 Amer. Rep. 145. "A grant, in its own nature," observes Chief Justice MARSHALL, in Fletcher v. Peck, 6 Cranch, 87, 137, "amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right,"-a principle which has been held in this state to be applicable to franchises lawfully granted by municipal corporations. Stein v. Mayor, 49 Ala. 362, 20 Amer. Rep. 283. The charter itself declares, moreover, that, when once granted in the mode provided for, such privilege should become a vested and irrevocable right, not liable to be revoked or impaired in any manner. Acts 1866-67, p. 400, § 5. It was not until the present constitution of 1875, now in force in this state, went into operation, that irrevocable grants of special privileges of this nature were prohibited. Railway Cases, 79 Ala. 469.

2. The privilege in question is none the less a franchise, in the proper sense of that term, because it was granted, not directly by legislative enactment, but by the municipal authorities of Mobile under the sanction of the charter, which is itself a legislative enactment. The grant by the city without such sanction would be unauthorized by law, and void. It is therefore referable to the charter, and may be considered as a grant by the legislature on the condition precedent that the corporate authorities of Mobile should assent to it; that municipality being regarded as a political agent for the state for this purpose, as it is for other governmental and police purposes. A case strongly analogous may be found in the grant of a license by the court of county commissioners, under the authority of the statute, to establish a toll-bridge or a ferry, which have been held by this court to be privileges in the nature of legislative franchises granted directly by the state, and subject, in general, to be governed by the same principles. Harrell v. Ellsworth, 17 Ala. 576; Gates v. McDaniel, 2 Stew. (Ala.) 211; Mayor v. Rodgers, 10 Ala. 37, 49; Railway Cases, 79 Ala. 465. This principle seems to us to be based on sound and practical reason, and is essentially just in its results. It is a mere logical sequence of the common adage, qui facit per alium, facit per se. An act done by this state, through its duly-authorized agent, is an act done by the state itself.

3. The chancellor decided that the grant made by the city to the appellee conferred, by necessary implication, not only the right of transit through Commerce street, but the right to load and unload at the adjacent stores and warehouses. In this conclusion we are disposed to concur, notwithstanding the force of the rule that the charters of corporations are to be construed strictly against the corporators, and what is not unequivocally granted in such acts must be taken to be withheld. The power claimed must, in other words, be granted in clear terms, or else must be necessarily implied. Railway Cases, 79 Ala. 472. It has been held by a respectable and learned court that the grant to a railroad company of the mere right of transit through the streets of a city would carry, as a necessary incident, the right to load and unload merchandise, provided ample room was left to accommodate public travel on the street, and the...