City of Gainesville v. Southern Railway Company

• Decision Date: 26 February 1970
• Docket Number: No. 27335.,27335.
• Citation: 423 F.2d 588
• Parties: CITY OF GAINESVILLE, Georgia, Plaintiff-Appellee, v. SOUTHERN RAILWAY COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

423 F.2d 588 (1970)

CITY OF GAINESVILLE, Georgia, Plaintiff-Appellee, v. SOUTHERN RAILWAY COMPANY, Defendant-Appellant.

No. 27335.

United States Court of Appeals, Fifth Circuit.

February 26, 1970.

Charles J. Bloch, Macon, Ga., Emory F. Robinson, Gainesville, Ga., Charles A. Horsky, James Hamilton, Washington, D. C., for appellant.

William B. Gunter, City Atty., Edgar H. Sims, Jr., Gainesville, Ga., for appellee.

Before TUTTLE, COLEMAN and SIMPSON, Circuit Judges.

TUTTLE, Circuit Judge:

This case involves basically a determination whether an ordinance of the City of Gainesville, Georgia, requiring Southern Railway Company to install and maintain entirely at its own expense automatic signalling devices where Southern's main line tracks intersect with Bradford Street, is so arbitrary and unreasonable as to be in violation of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution.

The City of Gainesville originally brought suit in the United States District Court for the Northern District of Georgia to compel Southern to install the automatic signalling device at this grade crossing. Southern counter-claimed by attacking the constitutionality of the ordinance requiring it to install the signal device and the constitutionality of a Georgia enabling statute pursuant to which such local ordinance could have been enacted.

A three judge statutory court was convened pursuant to 28 U.S.C. § 2281 because of the attack on the constitutionality of the Georgia statute and prayer for an interlocutory and permanent injunction, restraining the enforcement, operation and execution of the Georgia statute. A hearing was held, and the three judge court held that this was not a three judge case and remitted the case to a single district judge. Appellant argues that this was error. We disagree.

It is clear that the City of Gainesville has the power without statutory authorization to enact a municipal ordinance under its police power requiring a railroad to either have a flagman or install signal devices at all grade crossings within the city limits. See City of Acworth v. Western & Atlantic RR Co., 159 Ga. 610, 618, 126 S.E. 454 (1924); Atlantic & B RR Co. v. Montezuma, 122 Ga. 1, 49 S.E. 738 (1904); Atlanta & West Point RR Co. v. Underwood, 218 Ga. 193, 126 S.E.2d 785 (1926). The three-judge district court found that there was substantial evidence to support the City of Gainesville's contention that its ordinance was enacted not pursuant to the Georgia Statute but under its inherent police power as is clearly authorized by the Georgia courts. Therefore, the issue became solely an attack on a local ordinance and action of local officials not upon a state statute of general application or against state officials carrying out a state statute or policy of general application; therefore this was not a proper case for a three judge court. Ex parte Collins, 277 U.S. 565, 48 S.Ct. 585, 72 L.Ed. 990 (1928); Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970), footnote 10.

A hearing on the constitutionality of the ordinance was held. The court's findings of facts may be summarized as follows: Southern or its predecessors had operated lines through Gainesville, now covering a distance of 1.1 mile, for 80 years or more. There are six grade crossings within the Gainesville City limits, three are protected by flashing lights and one by both flashing lights and a gate. Therefore, there are two grade crossings without automatic signal devices but which are posted by Georgia traffic signs — red highway "stop" signs and cross-buck warning signs — requiring the operators of motor vehicles to stop or to proceed with caution.

Bradford Street is one of the non-signal device crossings. It is a four lane street which crosses six Southern Railway tracks. When no railroad cars are parked on the four side tracks, vision sightings at this intersection are clear in both directions except for automobiles parked around the adjacent Southern Railway depot.

The district court also found that the number of scheduled trains crossing Bradford Street has generally decreased with only nineteen scheduled trains per twenty-four hour day in 1968 and that the number of "switchers" crossing Bradford Street has decreased from an estimated 68 per 24 hour day in 1962 to an estimated 50 per 24 hour day in 1968. However, the court found that the danger had increased because there is an increase in vehicular traffic from an estimated 1,062 per 24 hour day in 1962 to an actual count in 1968 of 5,563 per 24 hour day. Also, three gasoline bulk plants are located near the Bradford Street crossing, and local gasoline delivery trucks cross the Bradford Street railroad crossing approximately 60 to 75 times per day. The district court, therefore, held that because of these facts, various surveys, and because two collisions between gas trucks and railroad trains occurred in 1967 and sixteen reported collisions between vehicles and Southern Railway trains at the Bradford Street railroad crossing in the past three and one-half years, two of which resulted in the death of two vehicle drivers, the installation of automatic signal devices which flash lights and ring bells upon approach of a train would substantially reduce motor vehicle-railroad train collisions at the Bradford Street railroad crossing and is therefore reasonably required to reduce such collisions. Southern Railway does not here attack this holding. Southern's contention on appeal is that under the circumstances of this case, it is unreasonable and arbitrary to require, as does the Gainesville ordinance, that the total cost of both installation and maintenance be borne entirely by the railroad. As to this contention, the district court held that:

"The railroad argues that it is unfair to require all expense to be borne by it * * * despite the appeal to this court for a sharing of the expense burden, such argument must yield to the stated authority." Seaboard Airlines Railroad Co. v.

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