Grand Trunk Western Railway Company v. City of South Bend
| Decision Date | 11 May 1910 |
| Docket Number | 20,981 |
| Citation | 91 N.E. 809,174 Ind. 203 |
| Parties | Grand Trunk Western Railway Company v. City of South Bend et al |
| Court | Indiana Supreme Court |
Original Opinion of November 23, 1909, Reported at: 174 Ind 203.
The learned counsel for appellant have presented an able and exhaustive brief upon petition for a rehearing. They urge that the court overlooked their insistence upon the allegation of the complaint, that the repealing ordinance is void, as violative of article 1, § 10, of the federal Constitution, and article 1, § 24, of the state Constitution, prohibiting the impairment of the obligation of contracts. They were not overlooked. On the contrary, they furnished the subject of the court's careful consideration, and the opinion seemed to be sufficiently explicit in itself, in covering such question, without pointing out the sections to indicate the basis for it. We may here add however, as pertinent to the question, the proposition that the prohibition as to impairment of contract obligations does not extend to subjects affecting the health safety or general welfare of the public. Chicago, etc R. Co. v. Nebraska, ex rel. (1898), 170 U.S. 57, 18 S.Ct. 513, 42 L.Ed. 948; Budd v. New York (1892), 143 U.S. 517, 12 S.Ct. 468, 36 L.Ed. 247; Powell v. Pennsylvania (1888), 127 U.S. 678, 8 S.Ct. 992, 1257, 32 L.Ed. 253; Barbier v. Connolly (1885), 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923; Butchers' Union, etc., Co. v. Crescent City, etc., Co. (1884), 111 U.S. 746, 4 S.Ct. 652, 28 L.Ed. 585; Stone v. Mississippi (1879), 101 U.S. 814, 25 L.Ed. 1079; Slaughter-House Cases (1872), 16 Wall. 36, 21 L.Ed. 394.
It is urged "that the court misapprehended the force of the averments of the complaint, and that the fact that a double track had been laid, and for nearly thirty years had been used, in a portion of Division street without complaint or inconvenience, is sufficient to show that ordinance No. 62 was not only authorized by statute, but that it was reasonable, and the public interests and public travel were fully and adequately protected, and that the repealing ordinance was not only unreasonable, but was wholly unnecessary." This insistence is made for the reason that the ordinance provides quite fully for the manner of operating trains, keeping up repairs on the tracks, keeping street crossings in repair, etc. This, however, as we view it, is no answer to the proposition that all such grants, as are here claimed, are subject to the exercise of the police power, which would operate irrespective of the contract, and two tracks may have long been maintained on some portion of Division street, without inconvenience to, or complaint from, the public. That establishes nothing as to the right or power of the city to determine for itself whether another portion should be obstructed, or the public inconvenienced. It may furnish an argument, but it presents no controlling fact.
It is next urged that we were in error in holding that there would necessarily be more obstruction with two tracks than with one, the argument being "that it necessarily requires twice as long to pass a given number of cars over a given portion of a single track than it does if the same volume of traffic is divided, and one-half passes over one track, and one-half over another parallel track at the same time." If that were the whole of the proposition, there would seem to be force in it, but let us put a case: Suppose there are two tracks, and both are necessary to accommodate the present volume of traffic, then we might have the street occupied practically all the time by opposite moving trains, increasing both the occupancy of the street longitudinally and the crossings, and it is quite well known that safe clearance of two trains upon a double track requires from twenty to twenty-two feet, to say nothing of the danger from teams or vehicles moving longitudinally, in close proximity to moving trains. Granting that it is possible that two tracks may be laid within eighteen feet, so that trains will pass over them, that still leaves the projection of cars on each side of at least eighteen inches, or three additional feet, which is more of an obstruction in a moving train than the two tracks would be in the width occupied by them, because of the danger from projecting or falling matter, control of teams and the like. Looking to the question of practicability, as appellant insists, we cannot say, as a matter of law, that two tracks would not be an obstruction of the primary use to which the street was dedicated, which is a legislative question. Wabash R. Co. v. City of Defiance (1897), 167 U.S. 88, 17 S.Ct. 748, 42 L.Ed. 87; Mayor, etc., v. Baltimore Trust, etc., Co. (1897), 166 U.S. 673, 17 S.Ct. 696, 41 L.Ed. 1160; Chicago, etc., R. Co. v. Whiting, etc., St. R. Co. (1894), 139 Ind. 297, 26 L.R.A. 337, 47 Am. St. 264, 38 N.E. 604.
We still think that the allegation of the complaint that there will be less obstruction with two tracks than with one, cannot be regarded as an allegation of a fact. Appellant's trains can be so scheduled that passing points can be arranged beyond the limits of a single track. This arrangement may require a different handling of trains from that which could be accomplished with two tracks, but we cannot be guided or controlled by considerations of convenience or inconvenience, when brought face to face with the conditions here disclosed.
It is claimed that the court has ignored the rule in White v. Chicago, etc., R. Co. (1890), 122 Ind. 317, 7 L.R.A. 257, 23 N.E. 782. That case presented the one question of damages to an abutting owner, and no questions as to the police or legislative power of the city, as to the width of the street, the degree of interference with its use, or the sufficiency of the unoccupied portion for the usual purposes of a street were presented or decided.
It is next urged that the ordinance attempts "to take away the right of plaintiff to use even the portion of the street already occupied by it under the consent given by the ordinance for double tracks," and "that the opinion seems to go upon the theory that this ordinance repeals only the privilege to lay a double track on that part of the street for which the privilege was given, on which the track was already laid." The brief on petition for rehearing is the first intimation of any claim that the ordinance seeks to take away the right to use the portion of the street now occupied by a double track. We do not mean to hold that there might not be such a right, but no such claim of right is asserted or intimated prior to the filing of the brief on petition for rehearing. We recur to the complaint, in which it is alleged that on January 1, 1881, a double track was laid on Division street between the St. Joseph river and Michigan street, and has ever since been used by appellant; that the ordinance of October 14, 1901, attempted to repeal so much of ordinance No. 62 as gives the right to lay a second track in said street, and that when an attempt was made by appellant on October 6, 1902, to lay a track west on Division street to General Taylor street, it was prevented, and there is no pretense of an attempt to interfere with or a claim of right to interfere with the double track now laid, and the prayer of the complaint is that appellees be "enjoined from in any way hindering or preventing plaintiff from laying said additional track, as aforesaid." We were clearly correct in our theory that only the question of laying the additional track was involved.
"The public necessity of the exercise of the police power in any case is a matter addressed to the discretion of the legislature; but whether a given regulation is a reasonable restriction upon personal rights is a judicial question." 2 Tiedeman, State and Fed. Control § 214. See, also, Ladd v. Southern, etc., Mfg. Co. (1880), 53 Tex. 172; Chicago, etc., R. Co. v. People, ex rel. (1873), 67 Ill. 11, 16 Am. Rep. 599; Toledo, etc., R. Co. v. City of Jacksonville (1873), 67 Ill. 37, 16 Am. Rep. 611; City of Erie v. Erie Canal (1868), 59 Pa. 174; State, etc., R. Co. v. East Orange (1879), 41 N.J.L. 127. Toledo, etc., R. Co. v. City of Jacksonville, supra. Referring to the act requiring the sounding of whistles at highway crossings, it was said in the case of Pittsburgh, etc., R. Co. v. Brown (1879), 67 Ind. 45, 33 Am. Rep. 73, that "the necessity and propriety of the enactment in question were exclusively for the legislature, and not for the courts, to pass upon." In 2 Redfield, Railways (5th ed.) 461, in speaking of the same requirement, it is said: "Of the importance or necessity of which the legislature must be the judge."
It is urged that our opinion is not supported by the cases of Lake Roland, etc., R. Co. v. Mayor, etc. (1893), 77 Md. 352, 26 A. 510, 20 L.R.A. 126, and Mayor etc., v. Baltimore Trust, etc., Co. (1897), 166 U.S. 673, 17 S.Ct. 696, 41 L.Ed. 1160, for the reason that both cases arose under the same ordinance, and "the state court found and held that the power of the city council to amend or modify or repeal its ordinance was expressly written in the statute of the state authorizing the passage of such ordinance." This insistence was made when the case was originally before us, and we are unable to discover any authority for it. We have gone over the matter again in an attempt to discover whether we were in error in our understanding of those cases. The legislative act was a curative and ratifying act, ratifying the ordinance...
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Grand Trunk Western Ry. Co. v. City of South Bend
... ... of travel on the street, or its requirements, or any improper motive in the council's action, but is predicated upon the necessities of the railway from the increased volume of traffic upon an extensive main line of railway which is being double-tracked, and which it is sought to double-track ... ...