Atlantic Coast Line R. Co. v. City of Goldsboro

• Decision Date: 31 May 1911
• Parties: ATLANTIC COAST LINE R. CO. v. CITY OF GOLDSBORO.
• Court: North Carolina Supreme Court

71 S.E. 514

155 N.C. 356

ATLANTIC COAST LINE R. CO. v. CITY OF GOLDSBORO.

Supreme Court of North Carolina

May 31, 1911

Appeal from Superior Court, Wayne County; W. J. Adams, Judge.

Action by the Atlantic Coast Line Railroad Company against the City of Goldsboro. Judgment for defendant, and plaintiff appeals. Affirmed.

An ordinance prohibiting a railroad running through the city from "shifting" cars--that is, cutting out and putting in cars in the making up of a train--within certain four blocks in the heart of the city, except between 6:30 and 8:30 a.m. and between 4:30 and 6:30 p.m., or from allowing any car to stand for longer than five minutes within such space, is a valid reasonable exercise of the police power. (Per an equally divided court).

W. C Munroe, Geo. B. Elliott, and Geo. M. Rose, for appellant.

D. C Humphrey and Aycock & Winston, for appellee.

CLARK C.J.

The Atlantic Coast Line Railroad, originally the Wilmington & Weldon Railroad Company, occupies with its track the chief street of the city of Goldsboro. Its right of way, 65 feet on each side of its roadbed, embraces the whole of what is known as East and West Center streets, which extend north and south the entire length of the city. The right of way was originally acquired about 1835, and the town has been built up on either side and became incorporated in 1847. The city of Goldsboro, under the authority of the powers granted in its charter, has instituted a system of grading its streets and of drainage extending throughout the city. In pursuance of this work, the roadbed of the railroad on Center street in some places is now six inches and from that to eighteen inches higher than the grade of that street and of the other streets of the city which cross East and West Center streets at right angles. The city authorities have passed an ordinance providing that "all railroad companies owning tracks on East and West Center streets, between Walnut and Vine streets, in said city of Goldsboro are hereby required to lower said tracks, so as to make the same conform to the grade line of said streets and said tracks to be filled in between rails; the grade line of said street being as follows: Beginning at the present grade line, corner of Walnut and East and West Center streets to be lowered 6 inches to corner of Mulberry and East and West Center streets, 10 inches to corner of Ash and East and West Center streets and 18 inches to corner of Vine and East and West Center streets." Another section of the ordinance provides that failure or refusal to comply with the ordinance should be a misdemeanor and fined $50. The plaintiff attacks this ordinance as being unconstitutional and void, and sought to enjoin all enforcement of the ordinance by a criminal proceeding. The city has heretofore graded and paved at its own expense said East and West Center street outside of that part of the street occupied and used by the defendant as its roadbed. The injunction was refused, and the plaintiff appealed.

The city has from time to time laid out numerous streets crossing said right of way, and has worked and maintained its streets and cross-streets for more than 60 years, including all of East and West Center streets outside of the actual space occupied by plaintiff's roadbed. As a general rule, a court of equity has no jurisdiction to restrain a state from prosecuting for a violation of its statutes and ordinances. The ordinances in question were made by the city in pursuance of its governmental authority. We need not enter into the learned and elaborate discussion as to what cases, if any present exceptions to this general rule, for we are of the opinion that the ordinance requiring the plaintiff to lower its track from 6 to 18 inches at the points where the cross-streets pass over the railroad track is a legal exercise of the public authority vested in the defendant. The plaintiff took its charter expecting that towns and cities would grow up along the line of its road, and knowing that with the development of the country new roads, and in the cities and towns that new streets, would be laid out across its right of way. And it took its charter knowing, too, that the state would have the right to lay out such roads and new streets, and to require the railroad to make such alterations as would prevent the passage over its track by the public being impeded. In English v. New Haven, 32 Conn. 241, it was held that the city had the right to require the railroad company to widen the crossing of a street over its track, or to make such other changes as the public convenience and necessity might require, in order that there should be no hindrance to the public in crossing the railroad track. In Railroad v. Bristol, 151 U.S. 556, 14 S.Ct. 437, 38 L.Ed. 269, it was held that the imposition upon a railroad company of the entire expense of a change of grade at a railroad crossing is not a violation of any constitutional right. In Cleveland v. Augusta, 102 Ga. 233, 29 S.E. 584, 43 L. R. A. 638, the subject is fully discussed in a very able opinion which holds that a railroad corporation must make such alterations in the change of its grade as will conform to the new grading of the streets adopted by the city. In railroad v. Duluth, 208 U. S 583, 28 S.Ct. 341, 52 L.Ed. 630, it was held that: "The right to exercise the police power is a continuing one that cannot be limited or contracted away by the state or its municipality, nor can it be destroyed by compromise as it is immaterial upon what consideration the attempted contract is based. Such power when exercised in the interest of public health and safety is to be maintained unhampered by contracts and private interests; hence an ordinance by a city compelling a railroad to repair a viaduct constructed after the opening of a road is valid though the city for a substantial consideration had contracted to relieve the railroad company from making such repairs for a term of years."

In the present case, however, there was no contract exempting the railroad from changing its grade at such crossings when required. Indeed, section 27 of plaintiff's charter in the laws of 1833 (Priv. Acts 1833-34, c. 78) expressly requires the plaintiff to do what the city now requires. Said section provides: "It shall be lawful for the said railroad company in the construction of its said road to intersect or cross any public or private way established by law; and it shall be lawful for them to run their road along the route of any such road; provided whenever they intersect and cross such public or private road the president or directors shall cause the railroad to be so constructed as not to impede the passage of travelers on said public road or private way aforesaid." In Minneapolis v Railroad, 98 Minn. 380, 108 N.W. 261, 28 L. R. A. (N. S.) 307, 120 Am. St. Rep. 581, the Supreme Court of Minnesota held that an almost identical provision in the charter of a railroad company was as applicable to new public roads laid out across the right of way as it was to old roads over which the right of way ran, and said: "The purpose of incorporating this particular provision in the charter of the railroad company was in the interest of the public and to require the railroad company to keep in good repair all crossings at the intersection of highways. *** The evils intended to be guarded against are the same, and apply equally to both new and old streets. There was no reason why the Legislature should deem it prudent to provide for existing highways only, and we do no violence to the rules of statutory construction in holding that the provisions of defendant's charter were intended to include all streets and highways intersected by railroads whether laid out before or after building of the railroad. The expression of the statute is special perhaps; but the reason therefor is general. The expression must therefore be deemed general. A railroad company accepts and receives its franchise subject to the implied right of the state to lay out and open new streets and highways over its tracks, and must be deemed as a matter of law to have had in contemplation at the time its charter was granted, and is bound to assume all burdens incident to new, as well as existing, crossings." The same doctrine has been held in Maine, Connecticut, Illinois, New York, Tennessee, Indiana, Texas, Mississippi, Ohio, Nebraska, New Jersey, Vermont, Wisconsin, and by the United States Supreme Court. Indeed, the above case from Minnesota was affirmed 214 U.S. 497, 29 S.Ct. 698, 53 L.Ed. 1060. In the above-cited case of Cleveland v. Augusta, 102 Ga. 233, 29 S.E. 584, 43 L. R. A. 638, the railroad ran across the public road which was not then a street. When the territory was taken into the city, its authorities changed the road to a street and raised the grade at that point, and required the railroad to raise its grade. This the railroad refused to do unless the city would pay the expense. The court held that the railroad company was liable for the expense of raising its roadbed to conform to the city grade, and said that it must yield to the reasonable burden imposed by the growth and development of the country or the city; and, where the public welfare demands a change of grade of the highway or street, the railroad company must, at its own expense, make such alterations in the grade of its crossing as will conform to the new grade. That case is exactly in point. In the course of its opinion the court said: "Upon streets or highways crossed by it, or subsequently laid out, the railroad company must construct proper crossings" (Lancaster v. Railroad, 29 Neb. 412, 45 N.W. 469; Railroad v. Smith, 91 Ind. 119, 13 Am. & Eng. Ry. Cas. 608), and must alter, change, or otherwise reconstruct such...