Cleveland Elec. Ry. Co. v. City of Cleveland

• Decision Date: 24 April 1905
• Docket Number: 6,851.
• Citation: 137 F. 111
• Parties: CLEVELAND ELECTRIC RY. CO. v. CITY OF CLEVELAND et al.
• Court: U.S. District Court — Northern District of Ohio

137 F. 111

CLEVELAND ELECTRIC RY. CO. v. CITY OF CLEVELAND et al.

No. 6,851.

United States Circuit Court, N.D. Ohio, Eastern Division.

April 24, 1905

Squire Sanders & Dempsey, for complainant.

Newton D. Baker, City Sol., for defendant city.

Garfield Howe & Westenhaver, for defendant Forest City Ry. Co.

The complainant files its bill against the city of Cleveland and the Forest City Railway Company, alleging that the enforcement of a certain ordinance of the city of Cleveland will violate the complainant's rights under the Constitution of the United States, expecially by impairing the obligation of its contracts with the city; asking that the ordinance be decreed to be null and void; and, alleging that irreparable injury will be done to it by enforcing the ordinance, and that it has no adequate remedy at law, prays that the defendant the city of Cleveland, its officers agents, attorneys, etc., be now temporarily, and hereafter perpetually, enjoined from putting the ordinance alleged to be illegal into effect. The bill sets out the corporate history of the complainant, and the several ordinances of the city upon which its right to operate a street railroad is based, and especially in relation to its right to operate a street railroad on what is called its Garden street (now Central avenue) line, which is the immediate subject of this controversy. An amendment to the bill was filed before the hearing, but this will be treated and spoken of in this opinion as part of the bill itself. Upon the filing of the bill a temporary restraining order was allowed ex parte, and the case is now before the court upon the application for a temporary injunction. The defendants have fully answered, all of the ordinances and other facts affecting the question before the court have been presented, the case had been most ably and elaborately argued, and this hearing, so far as this court is concerned, is practically a hearing on the merits.

The complainant, by consolidation with other companies and by purchase of other lines, is now the owner of about 236 miles of street railway track in the city of Cleveland, comprising practically all of the street railway mileage within the city. The East Cleveland Railroad Company is the constituent company to which, prior to the consolidation, all of the rights involved in this proceeding were granted. This corporation-- that is, the East Cleveland Railroad Company-- was incorporated in the year 1859, and in the course of the following three years received grants, by ordinance of the city of Cleveland, for the operation of a line beginning at what was then the easterly city limit, at Willson avenue thence by way of various streets to and through the Public Square to Water street. These grants were made to expire September 20, 1879, and under them a street railroad was constructed. In 1862, the East Cleveland Railroad Company was granted by the township trustees of East Cleveland township the right to construct a single street passenger railway track from the Willson avenue terminus of its line, in the city of Cleveland, eastwardly along Euclid street (now Euclid avenue), a distance of about two miles, to Doan's Corners. There was no time limitation to this grant, and under it a street railroad was constructed and put in operation. Prior to January 14, 1868, the East Cleveland Railroad Company applied to the city council of the city of Cleveland for leave to construct a street railroad from the intersection of Prospect and Brownell streets, to connect with the main line of its railroad; thence along the center of Brownell street to its intersection with Garden street; thence easterly along the center of Garden street to and across Willson avenue to the easterly boundary of the city. The requisite consents of the property owners were filed, bond in the sum of $20,000 was given, bids were filed as required by the statute, and the council declared by resolution that the bid of the East Cleveland Railroad Company 'provided for the lowest rates of fare for carrying passengers on the proposed line,' made by any company or individual. Thereupon, on January 14, 1868, the council passed a resolution giving to the East Cleveland Railroad Company permission to lay down a track on the streets named in the application, and to use and occupy the tracks, switches, and turn-outs during the period of 20 years, and also the right to continue to use and occupy the streets, avenues, and public grounds over which its main line was then constructed and operated, westerly from the junction of the Garden street branch with the main line to its western terminus (that is to say, Water street), for the same length of time. Thus originated the company filed its acceptance of 'the grants and permits to construct and operate a street railroad from their main track in Prospect Street, through Brownell to Garden, and through Garden Street to the easterly line of the City, in accordance with their petition and bid, and the ordinance and resolution of the Council.'

In March, 1868, the village of East Cleveland, which bounded the city of Cleveland on the east at the point where the Garden street branch, as granted by the ordinance of the city of Cleveland, ended, granted to the East Cleveland Railroad Company the right to construct a street railroad, 'as a branch of its said railroad,' through and along certain streets in the village, beginning at the termination of its branch road at the easterly line of the city of Cleveland, in Willson avenue, for a period of 20 years. This ordinance was accepted by the street railroad company, and the Garden street branch was built, as contemplated by the two ordinances just referred to, extending from Prospect street, at Brownell, to the southerly line of Wade street, at Baden street. The length of this Garden street branch, as thus originally established by the ordinances of the city of Cleveland and the village of East Cleveland, was about two miles. On March 25, 1873, the city council passed a resolution granting to the East Cleveland Railroad Company the right to lay a second or double track in Garden street, between Brownell street and Willson avenue. There are no words in this ordinance limiting the time during which the right should exist.

On May 23, 1876, a portion of the village of East Cleveland having been annexed to the city of Cleveland, the council of the city passed an ordinance entitled 'An ordinance to permit the East Cleveland Railroad Company to extend the Garden street branch of its road,' which ordinance authorized the railroad company 'to extend the Garden street branch of its road to the easterly end thereof, along Garden street to Baden avenue, and along Baden avenue to Quincy street, and along Quincy street to New street, and along New street to Garden street, there to connect with the Garden street track; and to equip and operate said extension for twenty years in connection with said branch and its main line.'

On September 15, 1879, the city council passed an ordinance granting a renewal, for the period of 25 years from and after September 20, 1879, of the right to operate a street railroad in and along Superior street, Euclid avenue, Erie street, Prospect street, Case avenue, and Euclid avenue. This is what is sometimes in the ordinances referred to as the 'main line' of the East Cleveland Railroad Company.

On March 20, 1880, the city council passed an ordinance entitled 'An ordinance to permit the East Cleveland Railroad Company to extend the Garden street branch of its railway,' which, omitting the formal parts, is, in full, as follows:

'Section 1. Be it ordained by the city council of the city of Cleveland that the East Cleveland Railroad Company be and is hereby authorized and empowered to extend the Garden street branch of its railway from the present track, at the intersection of Baden avenue and Quincy street, in an easterly direction on and along said Quincy street, to the intersection of Lincoln avenue, and to equip and operate the said extension and its Garden street branch for the period of twenty-five years from and after the passage of this ordinance; but with the express condition that no increase of fare shall be charged by said company on any part of its said branch, or of its main line, or of said extension by reason of said extension. This grant is made subject to all ordinances of said city council now in force, or which may hereafter be duly passed regulating street railroads.

This is the ordinance which the city claims is the only ordinance under authority of which the Garden street branch is now operated. It expired on the 22d day of March of the present year.

On February 9, 1885, the city council passed an ordinance entitled 'An ordinance to permit the East Cleveland Railroad Company to extend the Garden street branch of its railway,' by which it authorized the railroad company 'to extend the Garden street branch of its railway from the termination of its present track at the intersection of Quincy street and Lincoln avenue in an easterly direction on and along said Quincy street to Woodland Hills avenue and equip and operate said extension as a single-track railroad, with all necessary switches, * * * in connection with said branch and its main line, and terminating with the grant for the main line,' etc.

At this time the Garden street franchise ran to March 22, 1905, and the 'main line' franchise to September 15, 1904.

On June 18, 1887, an ordinance was passed entitled 'An ordinance to permit the East Cleveland Railroad Company to extend the Garden street branch of its railway,' by which the railroad company was authorized 'to extend the Garden street branch of its railway from the intersection of its present track with Baden...