Grand Trunk Western Ry. Co. v. City of South Bend
| Decision Date | 11 May 1910 |
| Docket Number | No. 20,981.,20,981. |
| Citation | 174 Ind. 203,91 N.E. 809 |
| Parties | GRAND TRUNK WESTERN RY. CO. v. CITY OF SOUTH BEND et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
On motion for rehearing. Denied.
For former opinion, see 89 N. E. 885.
Anderson, Parker & Crabill, Kretzinger, Rooney & Kretzinger, and W. L. Taylor, for appellant. Frank Dunahoo, Hubbard & Hubbard, and Iden S. Romig, for appellees.
The learned counsel for appellants have presented an able and exhaustive brief upon petition for a rehearing. They urge, first, that the court overlooked their insistence upon the allegation of the complaint that the repealing ordinance is void, as violative of section 10, art. 1, of the federal Constitution, and section 24, art. 1, 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, without pointing out the sections, to indicate the basis for it as covering the question. 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., Co. v. Nebraska, 170 U. S. 57, 18 Sup. Ct. 513, 42 L. Ed. 948;Budd v. New York, 143 U. S. 517, 12 Sup. Ct. 468, 36 L. Ed. 247;Powell v. Penna., 127 U. S. 678, 8 Sup. Ct. 992, 1257, 32 L. Ed. 253;Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923;Butchers' Union v. Crescent City, 111 U. S. 746, 4 Sup. Ct. 652, 28 L. Ed. 585;Stone v. Mississippi, 101 U. S. 814, 25 L. Ed. 1079. The Slaughterhouse Cases, 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 alleged that a double track had been laid, and used for nearly 30 years in a portion of Division street without complaint or inconvenience, is sufficient to show that ordinance contract 62 was not only authorized by statute, but that it was reasonable, and that the public interests and public travel were fully and adequately protected, and that the repealing ordinance was not only unreasonable, but 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 the public, or without complaint. That establishes nothing as to the right or power of the city to determine for itself that another portion would 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 would necessarily require twice as long to pass a given number of cars or trainloads 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 pressent volume of traffic, then we might have the case of the street being 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 20 to 22 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 18 feet, so that trains will pass over them, still leaves the projection of cars one each side of at least 18 inches, or 3 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 of travel, from projecting, or falling matter, control of teams, and the like; and, 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, but is a legislative question. Wabash Ry. Co. v. Defiance, 167 U. S. 88, 17 Sup. Ct. 748, 42 L. Ed. 87;Baltimore Trust Co. v. Baltimore Co., 166 U. S. 673, 17 Sup. Ct. 696, 41 L. Ed. 1160;Chicago, etc., Co. v. Whiting (1894) 139 Ind. 297, 38 N. E. 604, 26 L. R. A. 337, 47 Am. St. Rep. 264. We still think that, notwithstanding the allegation of the complaint that there will be less obstruction with two tracks than with one, this necessary 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; it may be that the effect would be to require a different handling of trains from that which could be accomplished by 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., Ry. Co., 122 Ind. 317, 23 N. E. 782, 7 L. R. A. 257. That case presented the one question of damages to an abutting owner, and no question of the police or legislative power of the city, nor any question as to the width of the street, or the degree of interference with its use, or the sufficiency of the unoccupied portion for the usual purposes of a street, was 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, with double tracks,” and “that the opinion seems to go upon the theory that this ordinance repeals only the privilege to lay down 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 anywhere prior to the filing of the brief on petition for rehearing. We recur to the complaint in which it is alleged that on the 1st day of January, 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 62 as gives the right to a second track in said street, and that upon an attempt made by appellant October 6, 1902, to lay a track west on Division street to 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 away hindering or preventing the plaintiff from laying down said additional track as aforesaid,” etc. 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.” Tiedeman on Police Powers, § 214; Ladd v. Southern, etc., Co., 53 Tex. 172;Chicago, etc., Co. v. People, 67 Ill. 11, 16 Am. Rep. 599;Toledo, etc., Co. v. Jacksonville, 67 Ill. 37, 16 Am. Rep. 611;City of Erie v. Erie Canal, 59 Pa. 174; State v. East Orange, 41 N. J. Law, 127. Toledo Co. v. Jacksonville, supra. “The necessity and propriety of the enactment in question were exclusively for the...
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