City and County of Denver v. Denver & R.G.R. Co.

• Court: Colorado Supreme Court
• Writing for the Court: BAILEY, J.
• Citation: City and County of Denver v. Denver & R.G.R. Co., 167 P. 969, 63 Colo. 574 (Colo. 1917)
• Decision Date: 04 June 1917
• Docket Number: 8583.
• Parties: CITY AND COUNTY OF DENVER et al. v. DENVER & R. G. R. CO.

167 P. 969

63 Colo. 574

CITY AND COUNTY OF DENVER et al. v. DENVER & R. G. R. CO.

No. 8583.

Supreme Court of Colorado, En Banc.

June 4, 1917

Rehearing Denied Oct. 8, 1917.

Error to District Court, Denver County; Charles C. Butler, Judge.

Action by the Denver & Rio Grande Railroad Company, a corporation against the City and County of Denver, a municipal corporation, and others. There was a judgment for plaintiff and defendants bring error. Reversed.

I. N Stevens, City Atty., George Q. Richmond, Asst. City Atty. Jacob J. Lieberman, Asst. City Atty., James A. Marsh, City Atty., and Norton Montgomery, Asst. City Atty., all of Denver, for plaintiffs in error.

E. N. Clark, R. G. Lucas, and J. G. McMurry, all of Denver, for defendant in error.

BAILEY J.

This action was brought by The Denver & Rio Grande Railroad Company to restrain the City and County of Denver from enforcing Ordinance Number 34, Series of 1914, by which the city seeks to compel the removal of a certain railroad track at the intersection of Seventeenth and Wynkoop Streets, in Denver. The trial court found the ordinance illegal and void, and an injunction was issued restraining the city from interfering with the track, reserving to it, however, the right to determine the extent of the powers and privileges of the railroad company after the expiration of its charter. To this judgment the city assigns error, and brings the cause here for review.

For convenience the railroad company will be designated as plaintiff and the city as defendant, as in the court below. Briefly, their respective contentions are as follows: The company alleges that it has authority by legislative enactment to occupy the street; that an ordinance passed in 1871, ratified by Congress in 1872, and further ratified by city ordinance in 1875, 1878 and 1886, granted it a franchise, and further, that the city is estopped to deny this right.

The defendant city denies that any such legislative authority was given to the company; asserts that the ordinance of 1871 was ultra vires and void; that the Act of Congress relied upon simply legalized the incorporation of the company and gave it a right of way across public lands; that the ordinance of 1871, being ultra vires and void, could not be ratified by subsequent ordinances; that the line is now used as a switch track only, and not as a part of the main line as originally projected; and that, regardless of whether the company had a legal right to establish the track, the city, in the exercise of its police power, can compel its removal.

The duty of governmental agents to prohibit whatever may be harmful to the public, or to secure such economic and social conditions as a complex civilization may require, carries with it the power to remove the track, without regard to the character of the right upon which it was first established and maintained. The nature of the company's business, clothed as it is with a public interest, brings it peculiarly within the scope of the police power, from a reasonable exercise of which, when properly set in motion, it cannot escape. This rule is laid down in Munn v. Illinois, 94 U.S. 113, 124, 24 L.Ed. 77. In discussing the powers of government to regulate the use of private property the court said:

'When one becomes a member of society, he necessarily parts with some rights or privileges which, as an individual, not affected by his relation to others, he might retain. 'A body politic,' as aptly defined in the preamble of the Constitution of Massachusetts, 'is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.' This does not confer power upon the whole people to control rights which are purely and exclusively private, Thorpe v. R. & B. Railroad Co., 27 Vt. 143; but it does authorize the establishment of laws requiring each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another. This is the very essense of government, and has found expression in the maxim sic utere tuo ut alienum non laedas. From this source come the police powers, which, as was said by Mr. Chief Justice Taney in the License Cases, 5 How. 583, 'are nothing more or less than the powers of government inherent in every sovereignty, * * * that is to say, * * * the power to govern men and things.' Under these powers the government regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good.'

In reference to exercising police power upon railroads and kindred public service corporations the court said:

'This brings us to inquire as to the principle upon which this power of regulation rests, in order that we may determine what is within and what is without its operative effect. Looking, then, to the common law, from whence came the right which the Constitution protects, we find that when private property is 'affected with a public interest, it ceases to be juris privati only.' This was said by Lord Chief Justice Hale more than two hundred years ago, in his treatise De Portibus Maris, 1 Harg. Law Tracts, 78, and has been accepted without objection * * * in the law of property ever since. Property does become clothed with a public interest when used in a manner to make it a public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he in effect grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use, but, so long as he maintains the use, he must submit to the control.'

The track in question is laid directly in front of the entrance to the Union Station, at the foot of Seventeenth Street, one of the busiest streets in the city. From 1,550 to 2,500 persons cross the track daily and upon extraordinary occasions, as conventions and the like, this number is greatly increased. It was originally the main line of the company, but for more than twenty years has been used merely as a switch track to serve certain manufacturing and other interests butween Seventeenth and Nineteenth Streets on Wynkoop. The company has right of ingress and egress to the Union Station over another route, and the few establishments between Seventeenth and Nineteenth Streets now accommodated by the track may be readily taken care of over another route, should the track be abolished at the intersection in question.

It is contended by the company, however, that use of the track causes little, if any, inconvenience to the public for the reason that it is used only at hours during which travel across the intersection is comparatively light. It is well settled that the only limitation to the exercise of the police power is that such exercise shall be reasonable. Railway timetables are not fixed and immutable and any change in those governing the...