City of Red Wing v. Chicago, Milwaukee & St. Paul Railway Company

• Citation: 75 N.W. 223,72 Minn. 240
• Decision Date: 12 May 1898
• Docket Number: 11,052 - (99)
• Parties: CITY OF RED WING v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY
• Court: Minnesota Supreme Court

75 N.W. 223

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. Affrmed.

SYLLABUS

Municipal Corporation -- Ordinance Requiring Flagman at Railroad Crossing -- Validity.

Held under a general clause in a city charter giving to the members of its council "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., -- followed by a special enumeration of various subjects upon which the council could legislate, that no power was conferred, impliedly or otherwise, to adopt an ordinance requiring a railway company to maintain a flagman at such street crossings as such council might require.

Municipal Corporation -- Power not Implied from Grant of Common-Law Powers.

Nor can the power to enact such an ordinance be implied from the fact that the charter granted "the general powers possessed by municipal corporations at common law."

Municipal Corporation -- Care of Streets.

Nor can the power be implied from the fact that the charter confers upon the city the care, control, and management of the streets within its limits.

Municipal Corporation -- Police Power.

Nor can such an ordinance be adopted or enforced in the lawful exercise of the police power of the city.

Municipal Corporation -- Void Ordinance -- Ratification by Amendment to Charter.

An amendment to a city charter which provides that all ordinances of such city theretofore made shall remain in force does not validate an ordinance which was void because unauthorized.

J. C. McClure, for appellant.

In support of his contention that the council had power to adopt the ordinance, counsel cited: Kinsley v. Chicago, 124 Ill. 359; State v. Williams, 11 S.C. 288; State v. Merrill, 37 Me. 329; State v. Clark, 28 N.H. 176; Hudson v. Geary, 4 R.I. 485; State v. Freeman, 38 N.H. 426; Morris v. City Council, 10 Ga. 532; Railroad Co. v. Richmond, 96 U.S. 521; Texton v. Baltimore, 59 Md. 63; Hayes v. Michigan, 111 U.S. 228; Com. v. Worcester, 3 Pick. 462; Com. v. Stodder, 2 Cush. 562; Washington v. Mayor, 1 Swan (Tenn.) 177; Mayor v. Williams, 15 N.Y. 502; 2 Dillon, Mun. Corp. § 713; Green v. Eastern Ry. Co., 52 Minn. 79.

F. M. Wilson, for respondent.

The general welfare clause in the charter of 1864, subc. 4, § 2, confers no power to enlarge the powers which are conferred by the special grants of power. 1 Dillon, Mun. Corp. §§ 315, 316; Tiedeman, Mun. Corp. § 146; Horr & Bemis, Mun. Pol. Ord. § 27 et seq. The police power of a municipal corporation must depend upon the will of the legislature, and in order that a city may exercise a particular police power, it must be fairly included in the grant of powers by the charter. Tiedeman, Lim. Pol. Power, § 212. A municipal corporation, in the absence of express authority, has not the power by ordinance to compel a railroad company to maintain at a street crossing within the corporate limits a watchman, or flagman, for the purpose of giving warning to passers-by of the approach of trains. Ravenna v. Pennsylvania Co., 45 Oh. St. 118; Green v. Eastern Ry. Co., 52 Minn. 79. The power conferred by the general welfare clause is restricted by reference to other provisions of the charter. 1 Dillon, Mun. Corp. § 396; Mount Pleasant v. Breeze, 11 Iowa 399; Cooley, Const. Lim. (6th Ed.) 231.

By the express provision of the charter of 1864, subc. 4, § 2, an act of the council is required to be done or manifested by ordinance, rule or by-law, and the same is provided by section 5, subc. 4, of the present charter of 1887. Tiedeman, Mun. Corp. § 145; Horr & Bemis, Mun. Pol. Ord. § 210; City v. Barnet, 46 N.J.L. 62; Springfield v. Knott, 49 Mo.App. 612; State v. Bayonne, 35 N.J.L. 335; Anderson v. O'Conner, 98 Ind. 168; Newman v. Emporia, 32 Kan. 466; Hunt v. Lambertville, 45 N.J.L. 279; City v. Sears, 2 Colo. 588; Starr v. Burlington, 45 Iowa 87; Burmeister v. Howard, 1 Wash. T. 207; State v. Mayor, 35 N.J.L. 205; State v. Town, 33 N.J.L. 72; 1 Dillon, Mun. Corp. § 307 and note; City v. Fougeu, 30 Mo.App. 551. Where the charter commits the decision of a matter to the council and is silent as to the mode, the decision may be evidenced by a resolution, and need not necessarily be by an ordinance. Atchison Board v. DeKay, 148 U.S. 591, 598. But the charter of appellant requires an ordinance. Charter power to fine will not permit a forfeiture. Tiedeman, Mun. Corp. § 155; Miles v. Chamberlain, 17 Wis. 446; Kirk v. Newill, 1 Term R. 118, 124; Coonley v. Albany, 132 N.Y. 145, 153; Angell & Ames, Corp. § 360; Cooley, Const. Lim. (6th Ed.) 248; State v. Ferguson, 33 N.H. 424; Robinson v. Mayor of Franklin, 34 Am. Dec. 640, and note. The power to punish is confined to the modes and penalties expressly prescribed by the charter and excludes others. Tiedeman, Mun. Corp. §§ 154-156; Dillon, Mun. Corp, §§ 336, 339-410; 4 Wait, A. & D. 613; Cooley, Const. Lim. (6th Ed.) 232.

OPINION

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...