City of Birmingham v. Louisville & N.R. Co., 6 Div. 522

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, J. ANDERSON, C.J. (for the majority). THOMAS, J.
• Citation: 112 So. 742,216 Ala. 178
• Parties: CITY OF BIRMINGHAM et al. v. LOUISVILLE & N.R. CO.
• Docket Number: 6 Div. 522
• Decision Date: 09 December 1926

112 So. 742

216 Ala. 178

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

6 Div. 522

Supreme Court of Alabama

December 9, 1926

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.

Thomas, J., dissenting in part. [112 So. 743]

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.

THOMAS, J.

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:

"It was intended the proceeding should bear some analogy to appeals. Among the common incidents of appeals are these A fixed right to thus test the legality of the matter assailed; the right, upon execution of a proper bond, to supersede or suspend the execution of the order or decree pending the appeal; and the right, upon a hearing, to vacate or restrain the execution of the order, if found invalid These are the incidents we think the Legislature had in mind in styling the proceeding to test the validity of a legislative ordinance as 'an appeal.' It provides a cumulative remedy as of right and not of discretion. *** We have outlined the procedure to perfect the appeal and the order made thereon in the case at bar as an approved precedent in such cases. In the further progress of the cause the petition is to be treated as in lieu of a bill of injunction, subject to the same rules as to amendment demurrer, and answer." 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:

"A decree sustaining a demurrer to a part of a bill has the effect of striking that part. The complainant may thereupon so amend the part stricken as to give the bill equity in that regard, or he may by express amendment, eliminate the portion stricken by demurrer, or, if the bill still contains equity, may proceed thereon without amendment as if the defective feature had been stricken on motion."

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:

"Where an ordinance or by-law, assuming to exercise a power within the municipality's competency, is not void on its face, the legal presumption is that the ordinance or by-law is reasonable and valid until the contrary is shown by proper evidence. Bryan v. Mayor, etc., 154 Ala. 447, 452, 45 So. 922, 129 Am.St.Rep. 63; Marion v. Chandler, 6 Ala. 899, 902; Johnson v. Town of Fayette, 148 Ala. 497, 42 So. 621. When the unreasonableness vel non of an ordinance of by-law is asserted or urged, the question thus made is to be decided by the court, not the jury. Marion v. Chandler, supra; Johnson v. Town of Fayette, supra; 2 McQuillin on Munc. Corp. § 729; 2 Dillon, § 599; Evison v. Chicago R.R. Co., 45 Minn. 370, 48 N.W. 6, 11 L.R.A. 434. A qualification of this doctrine appears to have commended itself to the Supreme Court in A. & W. Tel. Co. v. Philadelphia, 190 U.S. 160, 166, 23 S.Ct. 817, 47 L.Ed. 995; but the conclusion, in this respect, of our cases, as well as the texts cited above, seem to us to afford the sounder, more practical rule, and will be adhered to. The court having the question to determine will take relevant evidence to advise its judgment upon the issue of unreasonableness vel non. 2 Dillon, § 599; Marion v. Chandler, supra; Van Hook v. Selma, 70 Ala. 361, 365, 452 Am.Rep. 85; 2 McQuillin, § 729. In order to justify the court in annulling an ordinance or by-law on the ground that it is unreasonable it must be 'demonstrably shown' that it is unreasonable; [112 So. 744] 'equipoise of opinion' on the matter will not warrant the setting aside of the ordinance of by-law on the ground of unreasonableness. Marion v. Chandler, 6 Ala. 899, 902."

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:

" 'A railroad company receives its charter and franchise subject to the implied right of the state to establish and open such streets and highways over and across its right of way as public convenience and necessity may from time to time require. That right on the part of the state attaches by implication of law to the franchise of the railroad company, and imposes upon it an obligation to construct and maintain at its own expense suitable crossings at new streets and highways to the same extent as required by the rules of the common law at streets and highways in existence when the railroad was constructed.' In that case, it appeared that long after the construction of the railroad, the city of Minneapolis had laid out a street across the railroad right of way, building at its own cost a bridge over the railroad tracks. After the bridge had been maintained for several years by the city it was destroyed by fire, and the city then demanded that the railroad company should build a new one. This demand the state court sustained; and, mandamus having thereupon been awarded (101 Minn. 545 [112 N.W. 1142]), the case was brought to this court, one of the grounds being that the action of the state deprived the company of its property without due process of law. The judgment was affirmed (St. Paul, M. & M.R. Co. v. Minnesota, 214 U.S. 497 [53 L.Ed. 1060, 29 S.Ct. 698]), this conclusion being reached upon the authority of Northern P.R. Co. v. Duluth, 208 U.S. 583 [28 S.Ct. 341, 52 L.Ed. 630]."

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...