Carolina & NW Ry. Co. v. Town of Lincolnton

• Decision Date: 01 July 1929
• Docket Number: No. 2844.,2844.
• Citation: Carolina & NW Ry. Co. v. Town of Lincolnton, 33 F.2d 719 (4th Cir. 1929)
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: CAROLINA & N. W. RY. CO. v. TOWN OF LINCOLNTON et al.

33 F.2d 719 (1929)

CAROLINA & N. W. RY. CO. v.TOWN OF LINCOLNTON et al.

No. 2844.

Circuit Court of Appeals, Fourth Circuit.

July 1, 1929.

John A. Marion, of York, S. C., and W. H. Childs, of Lincolnton, N. C. (Childs & Childs, of Lincolnton, N. C., on the brief), for appellant.

Sheldon M. Roper, A. L. Quickel, and Charles A. Jonas, all of Lincolnton, N. C., for appellees.

Before PARKER and NORTHCOTT, Circuit Judges, and COCHRAN, District Judge.

PARKER, Circuit Judge.

This is an appeal from an order dismissing the bill of complaint in a suit to enjoin the enforcement of certain ordinances of the town of Lincolnton, N. C.The complainant in the court below was the Carolina & Northwestern Railway Company, a North Carolina corporation.The town of Lincolnton, its mayor and aldermen and its chief of police, were defendants.The ordinances were attacked on three grounds: (1) That they impaired the obligations of a contract between the complainant and the town; (2) that they violated the due process clause of the Fourteenth Amendment; and (3) that they constituted a burden upon interstate commerce.The jurisdiction of the District Court was invoked solely on these constitutional grounds.The District Judge thought, however, that no constitutional question was involved, and dismissed the bill for lack of jurisdiction.

The facts as alleged are as follows: In the year 1901complainant maintained a line of railway through the town of Lincolnton which crossed Main and Water streets of the town at grade.In that year an ordinance was passed authorizing it to lower its track so as to pass under the streets and to make excavations in the streets for that purpose and bridge same.The ordinance granting the permission provided that the bridge to be built on Main street should be a "proper and good wooden bridge," and that on Water street a "proper and sufficient bridge."It contained also the following provision: "The said rights and privileges to run its said line of road as herein granted are granted upon the further consideration that the said Carolina & Northwestern Railway Company, its successors and assigns, shall at all times in the future, so long as it maintains the said track to keep up and in good repair all bridges at its own proper expense and cost."Following the permission granted in this ordinance, complainant proceeded to change the grade of its roadbed and to make excavations through Main and Water streets for that purpose, which it covered with substantial wooden bridges.

The bridge on Main street is in the second block from the center of the town, and the other bridge is opposite it on Water street, which runs parallel with Main.In the year 1927 the fire limits of the town were extended so that they included both bridges.An ordinance forbade the repair of any building within the fire limits; and it is alleged that the purpose of extending the fire limits was to require that the wooden bridges be replaced with concrete structures.On July 12, 1928, an ordinance was passed declaring the Main Street bridge to be a nuisance, and requiring complainant to replace it with one made of concrete.This suit is brought to enjoin the enforcement of these ordinances, complainant contending that they impair the obligations of the contract embodied in the ordinance of 1901, that they would result in a taking of its property without due process of law, and that they impose a burden upon the interstate commerce in which complainant is engaged.

No facts are alleged upon which the conclusion can legitimately be based that the extension of the fire limits was not justified by the growth and development of the town, or that the replacing of wooden by concrete bridges was not required for the safety of the public, or that the building of concrete bridges would entail any undue hardship or unreasonable expense upon complainant.In the more than a quarter of a century that has elapsed since 1901, many towns have grown greatly, and with the progress and development which they have experienced many things are now required for the public safety which were not necessary then.As to whether a wooden bridge is suitable for spanning the excavation which complainant has made in Main street near the heart of the town, it appears that this street is a part of the hard-surfaced highway system of the state, which does not make use of wooden bridges even in rural sections.

Upon the allegations of the bill, we think it clear that the constitutional questions attempted to be raised are altogether lacking in merit, and that the suit was properly dismissed for lack of jurisdiction.We agree with the learned counsel for complainant that the question of jurisdiction must be determined upon the face of the bill.City Railway Co. v. Citizens' Street Ry. Co., 166 U. S. 557, 17 S. Ct. 653, 41 L. Ed. 1114;Cuyahoga-River Power Co. v. City of Akron, 240 U. S. 462, 36 S. Ct. 402, 60 L. Ed. 743.And we agree also that a bill alleges a case arising under the Constitution of the United States where it contains averments showing that the enforcement of a municipal ordinance authorized by the laws of the state will impair the obligations of contracts, deprive complainant of property without due process of law, or otherwise contravene constitutional provisions.Home Telephone & Telegraph Co. v. City of Los Angeles, 227 U. S. 278, 33 S. Ct. 312, 57 L. Ed. 510;City of Denver v. Mercantile Trust Co. (C. C. A. 8th)201 F. 790, 798.But it is not sufficient that the bill merely assert that an ordinance violates constitutional rights; it must set forth facts from which the court can see that such rights are violated.Where the contention that they are violated is seen from the facts alleged to be without substantial merit, the court is without jurisdiction.There must be "a federal question, not in mere form, but in substance, and not in mere assertion, but in essence and effect."Cuyahoga River Power Co. v. Northern Ohio Co., 252 U. S. 388, 397, 40 S. Ct. 404, 408(64 L. Ed. 626);Newburyport Water Co. v. Newburyport, 193 U. S. 561, 24 S. Ct. 553, 48 L. Ed. 795;Defiance Water Co. v. Defiance, 191 U. S. 184, 24 S. Ct. 63, 48 L. Ed. 140;Cyclopedia of Federal Procedure, Vol. 1, p. 353.

As there is no diversity of citizenship and jurisdiction must fail if it cannot be maintained on the ground that the case arises under the Constitution, it is not necessary that we consider whether the ordinances are valid under the law of the state; for, if not authorized by state legislation, they would not constitute action of the state of which complaint could be made under the Constitution.SeeNew Orleans Water-Works v. Louisiana Sugar Co., 125 U. S. 18, 31, 8 S. Ct. 741, 31 L. Ed. 607;Hamilton Gaslight Co. v. Hamilton, 146 U. S. 258, 266, 13 S. Ct. 90, 36 L. Ed. 963;Lynchburg Traction & Light Co. v. City of Lynchburg (C. C. A. 4th)16 F.(2d) 763, 764;City and County of San Francisco v. United Railroads of San Francisco (C. C. A. 9th)190 F. 507.Many acts of a municipality may be illegal in their character when tested by the laws of the state, and not be violative of constitutional provisions, and consequently not furnish ground of jurisdiction in the federal courts.For the purposes of the case, therefore, we assume that the ordinances were duly authorized by state legislation; and the only question is whether such action, when authorized by the state, violates any constitutional provision.Owensboro Water Works Co. v. Owensboro, 200 U. S. 38, 26 S. Ct. 249, 50 L. Ed. 361.

The first contention of complainant is that the ordinances impair the obligation of the contract contained in the ordinance of 1901, which required merely that wooden bridges be constructed.This contention, however, is manifestly lacking in merit, and cannot be said to present a substantial federal question.It is true that the ordinance of 1901 required that one of the bridges to be constructed should be of wood; but it also required that complainant should keep up and in good repair all of the bridges which would be made necessary by the...