City of Red Wing v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 12 May 1898
• Docket Number: Nos. 11,052 - (99).,s. 11,052 - (99).
• Citation: 72 Minn. 240
• Parties: CITY OF RED WING v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY.
• Court: Minnesota Supreme Court

72 Minn. 240

CITY OF RED WING v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY.

Nos. 11,052 - (99).

Supreme Court of Minnesota.

May 12, 1898.

Action in the district court for Goodhue county. The complaint alleged, among other things, that April 30, 1886, the city council of plaintiff city adopted an ordinance which included the following provisions, viz.:

Sec. 2. "Whenever so required by resolution of the city council of said city, it shall be the duty of every railroad company whose track crosses any street or road within the city limits to keep and employ a flagman at such particular street or road crossing as the city council may direct, and such flagman shall give the necessary warning of the approach of all locomotives, trains or cars, to avoid danger to persons and property."

Sec. 9. "Any railroad company or corporation that shall refuse or neglect to comply with the provisions of section two of this ordinance shall forfeit and pay to said city the sum of five dollars for each and every day that such default or neglect shall continue; to be recovered in the name of said city before any court of competent jurisdiction."

The complaint further alleged that June 4, 1897, the city council passed a resolution requiring defendant to place, keep and maintain a flagman on its railroad crossing over Jackson street. The action was brought to recover the penalty provided by section 9 of the ordinance, on account of defendant's neglect to comply with the resolution.

At the trial before Crosby, J., and a jury defendant objected to the introduction of any evidence under the complaint for the reason that it did not state facts sufficient to constitute a cause of action, and the court sustained the objection and granted defendant's motion to dismiss the action. From an order denying a motion for a new trial, plaintiff appealed. Affirmed.

J. C. McClure, for appellant.

F. M. Wilson, for respondent.

COLLINS, J.

Counsel for the appellant city insists that the city council had the power to enact the ordinance under which this action was brought, because (1) such power was expressly conferred in the "general welfare" clause; (2) because of the implied power granted by the charter; (3) because of the police power of the city over the streets; and (4) because the ordinance had been expressly legalized by the legislature.

1. It is admitted that no express authority to adopt an ordinance compelling defendant railway company to station a flagman at street crossings is to be found in the charter in force at this time (Sp. Laws 1864, c. 6); but it is claimed that the power is conferred by a general clause (subc. 4, § 2), by which the city council was given

"Full power and authority to make, enact, ordain, establish, publish, enforce, alter, modify, correct and repeal all such ordinances, rules and by-laws for the government and good order of the city for the suppression of vice, as they shall deem expedient; * * * and such ordinances, rules and by-laws are hereby declared to be and have the force of law, and for these purposes shall have authority by ordinance, resolution or by-laws; provided, that they be not repugnant to the Constitution and laws of the United States or of this state: (1) To license and regulate," etc.

Then follows a special enumeration by subdivisions of various subjects upon which the council may legislate, 37 in all, the last three having reference to the subject of fires.

This general clause is not a "general welfare" clause, as counsel for the...