City of Winston-Salem v. Southern Ry. Co.

• Decision Date: 17 September 1958
• Docket Number: WINSTON-SALEM,No. 377,377
• Citation: 248 N.C. 637,105 S.E.2d 37
• Parties: , 28 P.U.R.3d 42 CITY OFv. SOUTHERN RAILWAY COMPANY.
• Court: North Carolina Supreme Court

Page 37

105 S.E.2d 37

248 N.C. 637, 28 P.U.R.3d 42

CITY OF WINSTON-SALEM v. SOUTHERN RAILWAY COMPANY.

No. 377

Supreme Court of North Carolina.

Sept. 17, 1958

Joyner & Howison, William T. Joyner, Jr., Raleigh, Deal, Hutchins & Minor, Winston-Salem, and William C. Bennett, Jr., Washington, D. C., for defendant, appellant.

Ratcliff, Vaughn, Hudson, Ferrell & Carter, Ralph M. Stockton, Jr., and Robert G. Stockton, Winston-Salem, for plaintiff, appellee.

JOHNSON, Justice.

This is a civil action by plaintiff, City of Winston-Salem, for writ of mandamus to compel the defendant, Southern Railway Company, to rebuild at its entire expense the overpass trestle where the railroad tracks cross over Northwest Boulevard, in accordance with an ordinance adopted by the City Board of Aldermen on 15 April, 1957.

Northwest Boulevard was established as a city street in 1922. It was laid out to pass under the tracks of the Southern Railway Company at a point where its roadbed was on top of an embankment some twenty feet high. It was thus necessary that an excavation be made through the embankment under the tracks. This required the erection of an overpass trestle to span the opening over the new street. The City requested the railway company to build the trestle, and it did so at its own expense, although the City paid for the excavation work.

The trestle has been in use since 1923. The City is now demanding that the railway company rebuild the trestle in extended length, to accommodate the opening of a new street, known as Broad Street Extension, laid out to intersect and cross Northwest Boulevard under the trestle, so as to make an X crossing under the trestle. The abutments of the present trestle are about 36 feet apart. The present street, 34 feet wide, passes between these abutments. The city ordinance songht to be enforced in this action requires a horizontal clearance of not less than 62.5 feet. To comply with the ordinance would require the complete rebuilding of the trestle at an expense to the railway company of approximately $57,000. Also, it would necessitate the appropriation of considerably more of the railway right of way.

The ordinance requiring the railway company to rebuild the trestle was enacted by the Board of Aldermen of the City in the exercise of power granted the City in its Charter, Ch. 232, Sec. 54, Private Laws of 1927, which provides that the City 'shall have the power to require' any 'railroad company * * * at its own expense, to construct, maintain and repair * * * crossings at grade, over or under its streets * * *.' By this charter provision the General Assembly delegated to the City a quantum of the State's sovereign police power. Brewer v. Valk, 204 N.C. 186, 167 S.E. 638, 87 A.L.R. 237; 11 Am.Jur., Constitutional Law, Sections 255 and 256.

The City alleges that dangerous traffic congestion exists 'on West Fifth Street, on Broad Street from Fifth Street to West End Boulevard and Seventh Street, on West End Boulevard from Broad street and Seventh Street to Reynolda Road, on Reynolda Road from West End Boulevard and extending some distance North of its intersection with Northwest Boulevard, on Northwest Boulevard for some distance westwardly from Reynolda Road, on Northwest Boulevard from Chatham Road to Reynolda Road'; that existing conditions 'cause(s) serious delay in traffic flow and constitute(s) a hazard to the public safety and welfare of the citizens of Winston-Salem,' and that it is necessary for the public safety and public welfare to extend Broad Street northwardly to join with Thurmond Street at Northwest Boulevard as proposed, so as to provide a north-south intercity thoroughfare extending from Corporation Parkway in the southern part of the City to Coliseum Drive in the northern part of the City, a distance of approximately 2.71 miles; that the present railroad trestle over Northwest Boulevard is inadequate to accommodate the increased flow of traffic that will be produced by the proposed extension of Broad Street; that, on the contrary, the present trestle will unreasonably and dangerously impede and obstruct traffic and will constitute a danger to the public, and that it is necessary in the interest of public safety and welfare that the trestle be rebuilt by the railway company in accordance with the demands of the City.

The defendant by answer denied that the plaintiff is entitled to the relief sought. Among other defenses set up by the defendant are these:

1. That the trestle is now completely adequate for the purposes of the railway company, and as it presently exists causes no danger to the public or to the defendant.

2. That there is no public necessity for a new overpass as contemplated by the ordinance. However, if public necessity be found, the need is not caused by any action of the defendant, but is caused solely by the increase in highway traffic and by the growth of the City of Winston-Salem.

3. Compliance with the ordinance will impose upon the defendant heavy, unjustified expense, and will be of no benefit to the defendant; that the benefits, if any from the proposed project will accrue only to members of the vehicular traveling public, including the chief competitors of the defendant, the trucks and busses; and that the requirements of the ordinance will amount to the taking of the defendant's property without just compensation and without due process of law.

4. That the provision of the Charter of the City of Winston-Salem quoted in the complaint and relied on by the plaintiff as authorizing its demand upon the railway company is arbitrary, unreasonable, and unconstitutional, in that it would deprive the defendant of its property without due process of law, in violation of the Fourteenth Amendment of the United States Constitution and Article I, Section 17, of the North Carolina Constitution.

5. That the provisions of the ordinance likewise are arbitrary, unreasonable, and unconstitutional, in that they would deprive the defendant of its property without due process of law, in violation of the Fourteenth Amendment of the United States Constitution and Article I, Section 17, of the North Carolina Constitution.

Voluminous evidence was offered by each side in support of its allegations and contentions.

Upon facts found by the trial court, substantially in accord with the plaintiff's allegations, but with no reference being made to the special facts shown in evidence and relied upon by the defendant railway company, the court entered judgment allowing the City's request for mandamus and decreeing that the railway company be required 'at its sole expense' to reconstruct the trestle over Northwest Boulevard as directed in the ordinance of 15 April, 1957, with direction that work begin within sixty days after the date of the judgment, and that the project be completed within 280 working days thereafter. From the judgment so entered, the defendant railway company appealed.

The railway company takes the position that the charter provision under which the ordinance was enacted does not grant unlimited power to the City, and that the attempt to require the company to bear the expense of rebuilding the trestle under the facts and circumstances of this case is an unreasonable and unconstitutional exercise of the power delegated to the City in the Charter. The defendant predicates its claim of unconstitutionality upon uncontroverted special facts shown in evidence or of which the courts may take judicial notice, which it contends factually distinguish the instant case from the decisions cited by the City, and take the case out of the principles relied upon by the City as authority to sustain the validity of its ordinance.

The railway company's contentions must be viewed in the light of the basic proposition that the police power is a reserve power, and not a grant derived from or under any constitution, which may be exercised for the promotion of the public safety, the general welfare, and the public convenience.

Nevertheless, the railway company is entitled to have its contentions resolved in the light of these equally well-established general principles:

1. That the police power is subject to all the constitutional limitations which protect basic property rights, and therefore must be exercised at all times in subordination to Federal and State constitutional limitations and guarantees. Clinard v. City of Winston-Salem, 217 N.C. 119, 6 S.E.2d 867, 126 A.L.R. 634; Brewer v. Valk, supra, 204 N.C. 186, 167 S.E. 638; Clinton v. Standard Oil Co., 193 N.C. 432, 137 S.E. 183, 55 A.L.R. 252; State v. Whitlock, 149 N.C. 542, 63 S.E. 123; State v. Williams, 146 N.C. 618, 61 S.E. 61, 17 L.R.A.,N.S., 299.

2. That the accepted standard by which the validity of all exercise of the police power is tested is that the power extends only to such measures as are reasonable under all existing conditions and surrounding circumstances. 11 Am.Jur., Constitutional Law, Sec. 302. See also Austin v. Shaw, 235 N.C. 722, 71 S.E.2d 25; Shuford v. Town of Waynesville, 214 N.C. 135, 198 S.E. 585; Barger v. Smith, 156 N.C. 323, 72 S.E. 376.

3. Therefore, when the exercise of the police power is challenged on constitutional grounds, the validity of the police regulation primarily depends on whether under all the surrounding circumstances and particular facts of the case the regulation is reasonable; that is, whether it is reasonably calculated to accomplish a purpose falling within the legitimate scope of the police power, without burdening unduly the person or corporation affected. 11 Am. Jur., Constitutional Law, Sec. 302. See also Victory Cab Co. v. Shaw, 232 N.C. 138, 59 S.E.2d 573; Turner v. City of New Bern, 187 N.C. 541, 122 S.E. 469; State v. Bass, 171 N.C. 780, 87 S.E. 972, L.R.A. 1916D, 583. In short, it must appear that the regulation or burden imposed is reasonable in its operation as to the persons whom it affects, and it must not be unduly oppressive. East Side...