Birmingham Electric Co. v. Allen

• Decision Date: 24 May 1928
• Docket Number: 6 Div. 85
• Citation: 117 So. 199,217 Ala. 607
• Parties: BIRMINGHAM ELECTRIC CO. v. ALLEN et al.
• Court: Alabama Supreme Court

117 So. 199

217 Ala. 607

BIRMINGHAM ELECTRIC CO. v. ALLEN et al.

6 Div. 85

Supreme Court of Alabama

May 24, 1928

Rehearing Denied May 31, 1928

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill for injunction by Hattie E. Allen and another against the Birmingham Electric Company. From a decree overruling a demurrer to the bill, defendant appeals. Reversed and remanded.

Bradley Baldwin, All & White and W.M. Rogers, all of Birmingham, for appellant.

Altman & Koenig, of Birmingham, for appellees.

THOMAS J.

Appellees filed this bill against appellant, a corporation operating a street railway in the city of Birmingham, seeking injunctive relief against the abandonment or discontinuance of its railway service, or any part thereof, on its Avenue C route, as described in the bill, and along which route appellees owned property and resided. From a decree overruling demurrers to the bill as amended, defendant has prosecuted this appeal.

The bill shows that this street car line has been operated on this particular route for 20 years, and its discontinuance would work inconvenience to the residents thereon, and that the next nearest car line for such service to such residents would be more than one-half mile measured by the route most generally traveled. A general outline of the bill will appear in the report of the case, and the statement here confined to those features thereof deemed here of controlling importance.

The defendant is operating the street railway in Birmingham under franchise granted by the city. The bill discloses that a traffic expert was employed to come to Birmingham and make a survey of the street railway and traffic situation in the city; that investigation and survey was made by said expert, who in due time submitted his report to the city commission of Birmingham, which report with respect to traffic changes in the city involved the parking of automobiles, routing of cars, abandonment of parts of several lines, and the abandonment of the Avenue C line, here involved. This report was accepted by the city commission and "put into effect in its absolute completeness," authorizing the carrying of the same into effect by resolution duly passed. This resolution, it appears from the bill, comprehended the routing of all the street cars of defendant, and a regulation of traffic in the city generally, including the parking of automobiles. While the bill contains averments impugning the motives of the members of the city commission, there is no charge of fraud or any allegation tending to vitiate or lessen the legal effect of the action of the commission in passing the resolution.

"It is firmly settled in this state that the courts will not inquire into the motives which may have induced authorized legislative action, whether by the Legislature of the state or by the municipal council" (Clements v. Commission of Birmingham, 215 Ala. 59, 109 So. 158); no fraud or corruption being charged as we have indicated above. The matters, therefore, of which these complainants here complain, were duly authorized by the city commission of Birmingham, acting for and on behalf of the public, and in the exercise of legislative discretion, and under the investure of the police power of the state in that municipality. City of Birmingham v. L. & N.R. Co., 216 Ala. 178, 181, 187, 112 So. 742.

The authorities relied upon by complainants (among them State of New Jersey ex rel. City of Bridgeton v. Bridgeton, etc., Traction Co., 62 N.J.Law, 592, 43 A. 715, 45 L.R.A. 837; Wright v. Milwaukee Elec. Ry. Co., 95 Wis. 29, 69 N.W. 791, 36 L.R.A. 47, 60 Am.St.Rep. 74; City of Potwin Place v. Topeka Ry. Co., 51 Kan. 609, 33 P. 309, 37 Am.St.Rep. 312; State v. Spokane St. Ry. Co., 19 Wash. 518, 53 P. 719, 41 L.R.A. 515, 67 Am.St.Rep. 739) involved the question of the power of the courts to compel a public utility to perform service to the public in accordance with the provisions of the ordinance of the city granting the right to operate, which service, it was held, could not be abandoned at the mere will and discretion of such public utility.

An entirely different question is here presented, where the public utility acquiesces in the comprehensive scheme of the city commission by resolution duly passed, for the regulation of traffic in the city, involving the abandonment of some of the street car lines therein.

The question of the power and control of the streets of cities, towns, and villages by the proper authorities thereof, with particular reference to section 220 of our Constitution, has been the subject of discussion in previous decisions of this court; one of the later cases being that of Birmingham, etc., Taxicab Service Corp. v. McLendon, 210 Ala. 525, 98 So. 578, wherein the court said:

"Const.Ala.1901, § 220, reads: 'No person, firm association or corporation shall be authorized or permitted to use the streets, avenues, alleys or public places of any city, town, or village for the construction or operation of any public utility or private enterprise, without first obtaining the consent of the proper authorities of such city, town or village.'

"This section was construed in City of Montgomery v. Orpheum Taxi Co., 203 Ala. 103, 82 So. 117.

"We there held that its terms, 'contemplated the permanent preservation of the municipal right to control, by withholding consent,

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