Africa v. City of Knoxville

• Decision Date: 19 October 1895
• Citation: 70 F. 729
• Parties: AFRICA v. BOARD OF MAYOR AND ALDERMEN OF CITY OF KNOXVILLE et al.
• Court: U.S. District Court — Eastern District of Tennessee

70 F. 729

AFRICA v. BOARD OF MAYOR AND ALDERMEN OF CITY OF KNOXVILLE et al.

United States Circuit Court, E.D. Tennessee, Northern Division.

October 19, 1895

Webb &amp McClung and Wheeler & McDermott, for complainant.

Tully R. Cornick, Lucky, Sanford & Tyson, and Joshua W. Caldwell for defendants.

CLARK District Judge.

A restraining order having been granted, the case is now considered on the application for injunction. Complainant recently purchased the corporate property and franchises of certain street-railroad companies formed for the purpose of operating street-railroad in the city of Knoxville. The original company was the Knoxville Street-Railroad Company which subsequently became consolidated, under the statute of the state, with other companies. No question is made on the regularity of such consolidation, and it becomes unnecessary, for the purpose of this case, to refer in detail to such consolidation. The original and other constituent companies obtained charters under the general incorporation act, and obtained the consent of the city to the use of the streets with an ordinance passed for that purpose. The articles of association of the original company were properly executed, and registered as required by statute. The articles, in describing the route of the road and the streets to be occupied, set out a general route over Gay street, about which no question is made, and then referred to other streets by name only, with a general statement including all the streets of the city, then established or thereafter to be established to the corporate limits. Some of these streets were parallel and some at right angles to the street constituting the principal route of the road. The description in the ordinance passed giving the city's consent to the use of the streets was similar to that in the charter, and referred to the charter. The company constructed its main line on Gay street, and a few other streets, not necessary to be named, and has been in the operation of the railroad thereon, making certain extensions from time to time. The streets involved in this controversy are Church avenue, Central avenue, Jackson and Oak streets, and to an extent also Gay street. Of these Gay street has been occupied from the beginning, and a small portion of Crozier street, now Central avenue, was occupied part or all of the time. In July, 1892, the city council of Knoxville undertook by ordinance to revoke its consent previously granted to the use of all streets not then occupied, with the exception of certain streets, not necessary to be named. Recently a new company has been formed for the purpose of operating lines of railroad on the streets of Knoxville, and among them the streets above named as being in controversy. Since the formation of that company, the complainant, as purchaser of the property and franchises of the old company, commenced laying tracks upon Church avenue, Central avenue, and Oak street. This work was begun in the nighttime. Thereupon the city filed an injunction bill in the state court, and obtained an injunction restraining the complainant from further construction of a line upon those streets. The bill further avers that the city council had instructed the police of the city to stop complainant's work, and, if necessary, to arrest his employes. The bill further alleges, as the facts appear to be, that the new company holds a franchise with consent of the city, by ordinance, not only to use Church and Central avenues and Oak street, but also Gay street; the ordinance as to Gay street containing provisions which make it impossible to construct on that street a track parallel to those of the complainant, and which requires necessarily the use of the complainant's track if the franchises on that street are to be used at all by the new company. The answers of both the city and the new company in respect to the charges of the bill intended to furnish ground for the injunction are evasive as to the essential facts alleged. While denying that certain declarations had been made as stated in the bill, the answers carefully avoid stating or taking position as to the intention of the defendants in this respect. This, together with other circumstances connected with the case, renders the answers, so far as a denial of the essential ground of relief is concerned, quite unsatisfactory and insufficient. 2 Beach, Mod.Eq.Prac. § 782; Yale v. Moore, 3 Tenn.Ch. 76.

The complainant, holding the older franchise, with an ordinance of the city giving its consent, and having entered upon the street with express permission, as appears, from the chairman of the board of public works of the city, which is the real administrative board over the streets thereof, is entitled to a preliminary injunction, having clearly made out a prima facie case therefor, unless the defenses set up in the answer defeat this right. The first objection taken by the answer is that the charter of the original company, as well as the ordinance passed by the city legislature, are void, as not being sufficiently specific in describing the streets so far as the streets therein were not described otherwise than by name, and so far as the streets were not described at all otherwise than as 'all the streets of the city, then or thereafter to be established. ' It will be perceived that this is an attack, not upon the charter as a whole, it would clearly involve corporate existence, and no such question could be made in this proceeding collaterally. Dallas Co. v. Huidekoper, 154 U.S. 654, 14 Sup.Ct. 1190.

Passing by the difficulty of declaring a charter of this kind void in part, as well as the objection to the manner in which the question is made, it is not difficult, in my opinion, to affirm that this objection is not well taken. The statute (Mill & V. Code, Sec. 1920) prescribes the form of charter, and with respect to the point now in question gives this direction: '(Here insert the initial terminus,) and ending at (here insert the terminus and general route of the road). ' And this is the provision of the statute relied on as a ground for drawing in question the validity of the charter. This provision clearly contemplates that only the general route shall be described by giving the initial terminus, etc., and implies that other lines and connections auxiliary to the main line and as part of a system need not be set out in the same way. Reference to a street by name with a general reference to the corporate limits, clearly makes the description of such street good for any practical purpose. It is a substantial reference to the plan of the town, an inspection of which would at once show the length and location of the street. And so I think, too, that it was competent in the charter and in the ordinance to give to the company any street that it might choose to use in the extension of its system and in the growth and extension of the city limits by the designation as any streets then laid out or thereafter to be laid out. It was not necessary, as the public good might require, and the business might justify, that a separate ordinance should be passed for each new street to be occupied as new streets might be established. The constitution of 1870 prohibited special acts of incorporation, and required the enactment of a general law under which corporations might be formed, and the legislation upon this subject should be given a reasonably liberal interpretation, with a view to making the same practically effective. Besides, this charter is in the usual form of such articles, and it is not to be doubted that within the limits of the state millions of dollars have been invested in such enterprises, and the public greatly benefited thereby, both in transportation facilities to growing cities and in the revenue derived by the state from taxation. Sound public policy requires, as far as may be done, that invested capital should be protected by the state's laws and their construction by the courts, and not destroyed.

It is next insisted by the defendants that any previously existing rights on any street not actually occupied and in use were taken away by the repeal of the ordinance in 1892, as before stated, and the plaintiff's contention is that the repealing ordinance is itself unconstitutional and void. In considering this question some general observations may be made. In the first place, it is to be borne in mind that plaintiff's franchise to operate his railroad is not derived from the municipal corporation, but from the legislature itself, and it is none the less so because obtained under a general incorporation act, instead of a special statute, which is no longer constitutionally possible. Telegraph & Telephone Co. v. United Electric Ry. Co., 93 Tenn. 502, 29 S.W. 104; Memphis City R Co. v. Mayor, etc., of Memphis, 4 Cold. 406; People's Pass. R. Co. v. Memphis City R. Co., 10 Wall. 38; Citizens' St. Ry. Co. v. City Ry. Co., 56 F. 746. The only authority delegated to the city in the completion of the franchise rights is the power to give its consent, and to prescribe the terms and conditions on which the streets are to be used. Mill. & V. Code, Sec. 1921. The statute does not reserve to the city council the right of repeal. So far as such right is reserved at all, it is reserved to the legislature itself. The statute does not vest the city with any power whatever to grant or to repeal a grant. Its power over the subject ends when it gives its consent, and prescribes the conditions in an ordinance for that purpose. Whether the city might withhold its consent altogether in the first instance is a point upon which the cases are not agreed, and is not necessary to be considered here. When it has given its consent it has executed and exhausted its power so far as...