City of Birmingham v. Louisville & N.R. Co.

• Decision Date: 30 April 1925
• Docket Number: 6 Div. 402
• Citation: 104 So. 258,213 Ala. 92
• Parties: CITY OF BIRMINGHAM et al. v. LOUISVILLE & N.R. CO.
• Court: Alabama Supreme Court

104 So. 258

213 Ala. 92

CITY OF BIRMINGHAM et al. v. LOUISVILLE & N.R. CO.

6 Div. 402

Supreme Court of Alabama

April 30, 1925

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

Petition for appeal in equity by the Louisville & Nashville Railroad Company against the City of Birmingham and the City Commissioners thereof. From a decree or order overruling motion to vacate the petition, respondents appeal and apply for rule nisi. Appeal dismissed; rule nisi denied.

W.J Wynn and W. Marvin Woodall, both of Birmingham, for appellants.

Jones &amp Thomas, of Montgomery, and Stokely, Scrivner, Dominick & Smith and McCellan, Rice & Stone, all of Birmingham, for appellee.

BOULDIN J.

This proceeding is to review or vacate proceedings in the circuit court, in equity, purporting to be an appeal to that court under section 2075 of the Code of 1923.

Article 27 of the Municipal Code (Code, §§ 2070 to 2075) deals with the elimination of the use of grade crossings by railroad companies in cities of more than 35,000 population.

Section 2070 confers upon the governing body of the municipality full power and authority to require railroad companies to construct and maintain, at their own cost, viaducts, bridges, or tunnels at public street crossings.

Section 2071 provides for vacation of certain portions of streets upon the completion of the improvements.

Section 2072 provides for apportionment of the cost between railroads having a joint interest.

Section 2073 provides for the imposition of penalties against the railroads, their officers and agents, for failure to comply with a proper construction ordinance.

Section 2074 provides that the governing body may, by bill in the circuit court, compel compliance with such ordinance.

Section 2075 reads:

"Appeal by Railroad from Order or Ordinance Requiring Bridges, Tunnels, Viaducts, etc.--The railroad companies so ordered by such governing body to construct and maintain viaducts, bridges, and tunnels, shall have the right to appeal to any court having chancery jurisdiction in the county in which the city is situated, from the order of such governing body and from any order made penalizing such railroad companies for their failure to construct and maintain such viaducts, bridges, and tunnels, on such appeal the railroad company shall give such bond as may be prescribed by said circuit court."

Pursuant to section 2070, the city commission of Birmingham enacted an ordinance to eliminate the grade crossing at Eighteenth street in that city. The ordinance outlines plans for elevating the railroad tracks, and prescribes penalties for noncompliance.

The Louisville & Nashville Railroad Company filed in the circuit court, in equity, its petition, making the ordinance an exhibit and setting forth in detail the grounds upon which the validity of the ordinance is assailed, and prayed that the petition be considered as an appeal under section 2075 of the Code, that the court prescribe the bond required to perfect the appeal, that the ordinance be superseded pending the appeal, that the respondents be enjoined from enforcing the penalties of the ordinance pending the appeal, and that upon a hearing the ordinance be held unreasonable and invalid, and respondents be perpetually enjoined from enforcing the same. There is also a prayer for general relief.

Upon presenting the petition to Hon. William M. Walker, judge of the circuit court, sitting in equity, he entered an order fixing the penalty of the bond, conditioned to prosecute the appeal to effect, or, failing therein, to satisfy such judgment or decree as shall finally be rendered in the premises; ordered that upon approval of the bond the ordinance be suspended pending the appeal; ordered notice issued to the respondents; and directed them, within 30 days thereafter, to send up a certified copy of the ordinance and the records of proceedings relating thereto.

The respondents, the city of Birmingham and the members of the city commission, filed a motion to vacate the order and dismiss the alleged appeal. The grounds of the motion were that the court was without jurisdiction to enter the order, had no jurisdiction of the subject-matter, had no power to suspend the ordinance pending an appeal, that no appeal was allowed by law in the manner taken, that no procedure is provided by law for an appeal, and that the court of equity has no appellate jurisdiction.

The appeal is taken from an order overruling this...