City of Birmingham v. Louisville & N.R. Co.
Citation | 112 So. 742,216 Ala. 178 |
Decision Date | 09 December 1926 |
Docket Number | 6 Div. 522 |
Court | Supreme Court of Alabama |
Parties | CITY OF BIRMINGHAM et al. v. LOUISVILLE & N.R. CO. |
Rehearing Granted May 12, 1927
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 others. From a decree on demurrer to the petition, respondents appeal. Affirmed on rehearing.
W.J Wynn and W. Marvin Woodall, both of Birmingham, for appellants.
Stokely, Scrivner, Dominick & Smith and McClellan, Rice & Stone, all of Birmingham, and Jones & Thomas, of Montgomery, for appellee.
This is the second appeal. City of Birmingham v L. & N.R.R. Co., 213 Ala. 92, 104 So. 258.
The questions presented arose in the attempt of the city of Birmingham to eliminate grade crossings used by companies operating railroads in a city of more than 35,000 population; and a further question is presented as to the nature and extent of the appeal provided to any court having chancery jurisdiction. Code 1923, §§ 2070-2075. The nature and extent of such trials in equity were touched upon on former appeal as follows:
213 Ala. 92, 94, 104 So. 258, 260.
There may be analogy in the construction given other statutes providing for appeals to a court of equity. Alabama Public Service Commission v. Mobile Gas Co., 213 Ala. 50, 104 So. 538, 41 A.L.R. 872.
After the former decision, the pending case in the circuit court in equity proceeded to a decree overruling grounds of demurrer of the city to the bill filed by the railroad company against that municipality, contesting the validity of the ordinances seeking to require the Louisville & Nashville Company and the Alabama Great Southern Railroad Company at their expense to eliminate grade crossings at the several streets in said city in the manner specifically indicated--by building trestles, bridges, etc., over the street. The tracks of the Louisville & Nashville Company are averred to cross at grade the several public streets in the city of Birmingham; the way of the railroad company long preceding the growth of the city and its present congested traffic.
The demurrer of respondent was directed to the bill as a whole, and grounds thereof limited or directed to certain specified aspects of the bill. The decree overruled the demurrer to the bill as a whole, and sustained certain specific grounds of demurrer, and overruled others. The effect of such a decree on demurrer was discussed in Pollak v. Stout's Mountain Co., 184 Ala. 331, 63 So. 531; s.c., 201 Ala. 700, 78 So. 990. This case was followed in Sandlin v. Anders, 210 Ala. 396, 400, 98 So. 299, 303, where it was said:
It is elementary that, when an attack is made upon an ordinance on the ground that it is unreasonable, arbitrary, and oppressive, the burden is upon the pleader or attacking party. Briggs v. B.R., L. & P. Co., 188 Ala. 262, 66 So. 95; Standard Chem. & Oil Co., 201 Ala. 89, 77 So. 383, L.R.A.1918C, 522.
And it should be said that the general rules in respect to review of ordinances for unreasonableness are well stated in Briggs v. B.R., L. & P. Co., 188 Ala. 262, 266, 66 So. 95, 96:
The rules declared have been adhered to in the later decisions of this court. Standard Chem. Co. v. Troy, 201 Ala. 89, 77 So. 383, L.R.A.1918C, 522; B.R.L. & P. Co. v. Kyser, 203 Ala. 121, 82 So. 151; Giglio v. Barrett, 207 Ala. 278, 92 So. 668.
The authority of a municipality in the exercise of the police power under the law is ample for the enforcement of the continuous duty resting upon railroad companies and persons in the construction and maintenance of their ways in or across public highways and streets of municipalities. Southern Ry. Co. v. Morris, 143 Ala. 628, 630, 42 So. 17; Sands v. L. & N.R.R. Co., 156 Ala. 323, 329, 47 So. 323. The extent of the police power conferred by the charter of cities (article 27, Code 1923, §§ 2070-2075; City of Birmingham v. L. & N. Co., 213 Ala. 92, 104 So. 258) has been adverted to by this court and the Supreme Court of the United States (N.P. Ry. Co. v. State of Minnesota, 208 U.S. 583, 28 S.Ct. 341, 52 L.Ed. 630; Chicago, M. & St. P.R.R. Co. v. City of Minneapolis, 232 U.S. 434, 34 S.Ct. 400, 58 L.Ed. 671).
In the last-cited case the authorities are collected, and the opinion, by Mr. Justice Hughes, declared:
"It is well settled that railroad corporations may be required, at their own expense, not only to abolish existing grade crossings but also to build and maintain suitable bridges or viaducts to carry highways, newly laid out, over their tracks or to carry their tracks over such highways."
The decision in State ex rel. Minneapolis v. St. Paul, M. & M.R. Co., 98 Minn. 380, 108 N.W. 261, 28 L.R.A.(N.S.) 298, 120 Am.St.Rep. 581, was quoted with approval by the justice in that case (Chicago, etc., Co. v. City of Minneapolis, supra), saying:
"
The case of C., I. & W.R. Co. v. Connersville, 218 U.S 336, 31 S.Ct. 93, 54 L.Ed. 1060, 20 Ann.Cas. 1206, was likewise referred to as being a case where the city was extended and intersecting streets laid out along an existing railway; and it was held that there was no violation of the Fourteenth Amendment in refusing to allow the company to be...
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