Helena Light & Ry. Co. v. City of Helena
| Citation | 130 P. 446,47 Mont. 18 |
| Parties | HELENA LIGHT & RY. CO. v. CITY OF HELENA. |
| Decision Date | 13 February 1913 |
| Court | United States State Supreme Court of Montana |
Appeal from District Court, Lewis and Clark County; J. Miller Smith Judge.
Submission of controversy between the Helena Light & Railway Company and the City of Helena. Decree for defendant, and plaintiff appeals. Reversed and remanded.
Wm Wallace, Jr., John G. Brown, and T. B. Weir, all of Helena for appellant.
H. S Hepner and Edward Horsky, both of Helena, for respondent.
This cause was submitted to the district court upon an agreed statement of facts under the provisions of section 7254, Revised Codes, to have determined the question: "Has the city of Helena the right and power to require the plaintiff, the Helena Light & Railway Company, to light its railway tracks within the corporate limits of said city without cost or expense to the city, and particularly at street intersections?" The court upheld the contention of the city that it has the power and rendered judgment in its favor. The plaintiff has appealed.
The plaintiff is operating its railway under what is referred to in the briefs of counsel as the "Brill Franchise." It also supplies to itself and to the city and its inhabitants electricity for light and power purposes under a second franchise granted to it by the city. The ordinance granting the railway franchise contains this provision: Section 19 of said article 3, which was in force when the Brill franchise was granted, is as follows: "The city of Helena reserves the right, by resolution or order of the city council, to adopt such other or further regulations, rules or restrictions, with reference to, or for the management of, street railroads, or companies or corporations conducting street railroads within the city of Helena, as the council may from time to time deem proper; and all grants for street railroads shall be construed, taken and held to be subject to the right in this section reserved, whether so expressed in the grant or not." Section 3259 of the Revised Codes declares: "The city or town council has power: * * * (12) To require the lighting of any railroad track or route within a city or town, the cars of which are propelled by steam or otherwise, and fix and determine the number, style and size of the lamp posts, burners, lamps, and all other fixtures and apparatus necessary for such lighting, and the points of location of the lamp posts, and to require the construction of crossings on the line of any railroad track or route within the city or town, the cars of which are propelled by steam or otherwise where the said track intersects or crosses any street, alley or public highway, or runs along the same, and to fix and determine the size and kind of such crossings and the grades thereof, and in case the owner of such railroad fails to comply with such requirements, the council may cause the same to be done, and it may assess the expense thereof against such owner, and the same constitutes a lien on any property belonging to such owner within such city or town, and may be collected as other taxes." The ordinance imposing upon the plaintiff the requirement in question is not incorporated in the agreed statement of facts. What its specific requirements are as to the number of lights required, their character, position, etc., does not appear. This is not important, however, since the question presented is not whether the particular requirements of the ordinance are reasonable, but whether either under the reservation in the general ordinance, which must be read into the Brill franchise, or under the provision of the statute, the council may exact the requirement it has undertaken to make.
1. As to the reservation clause in the ordinance, it is contended that, though the plaintiff by accepting the franchise entered into a contract with the city whereby it bound itself to observe any condition imposed upon it by the city, it did not thereby bind itself to submit to an exaction made of it, which, but for the reservation, it would be wholly beyond the power of the city to make. It is also argued that the general reservation does not impose upon the plaintiff any other duty than to submit to any reasonable regulation enacted by the city. We do not think the reservation enlarges in any degree the power of the city to enact suitable police regulations to control the construction and operation of railways upon its streets. Upon examination of it we find that it prescribes with great particularity the method to be pursued in constructing them, the character of materials to be used, the grade upon which they shall be laid (on a level with the surface of the street), the portion of the street they shall occupy, the maximum rate of speed at which the cars shall be moved, the points at which the cars must be stopped to receive and discharge passengers, and the duty of the corporation or other person owning the railroad to make the necessary repairs to the tracks and to keep the portion of the street occupied by them planked or paved, as the necessities of the case from time to time require. It imposes the duty of keeping the cars clean and in good repair. It prohibits the carrying of freight. It defines the relative rights of the city and the owners of the railways, when it becomes necessary to make repairs upon the streets. It reserves the right in the city to require the use by one owner of a single track in common with the owner of another railway at points where the width of the street does not permit the laying of two tracks. It contains many other provisions guarding the comfort, convenience, and safety of the public while traveling on the cars or upon the streets, and declares any violation, by omission or commission, of any of the provisions contained in it a misdemeanor, subjecting the offender to the penalty of a fine. If the owner of a railway fails to comply with any of its requirements, its franchise may be forfeited. In short, the ordinance is nothing more nor less than a series of police regulations designed to control the operation of the railway, and thus afford reasonable protection to the public in the use of the streets.
The source of the police power of a municipality is the state. The extent of it must be ascertained from the law creating the municipality, and from the laws of the state bearing upon the same subject. The power cannot be surrendered, alienated, or abridged by contract, nor can it be delegated even with the consent of the Legislature. Its exercise is a governmental function. Without it neither the state nor the municipality could protect the public welfare. Northern P. Ry. Co. v. Minnesota, 208 U.S. 583, 28 Sup. Ct. 341, 52 L.Ed. 630; Dillon on Municipal Corporations, § 1269; McQuillin on Municipal Corporations, § 890.
By parity of reasoning, since the state is the source of this power, it is obvious that it cannot be enlarged or extended by contract or agreement with a private citizen or subject. To assert the contrary is to assert the proposition that a private citizen may by agreement clothe the municipality with a power which the state alone could grant. Therefore the general expression "such other and further regulations rules or restrictions," etc., found in the ordinance, must, we think, be taken to refer to, and include only, regulations of the same character as these prescribed in the preceding sections, viz., police regulations. A familiar rule of statutory interpretation is that, where general words follow particular and specific words, the former must be held to mean things of the same kind. Sutherland on Statutory Construction, § 268. It is true that the particular provisions found in the ordinance preceding the section containing the reservation embody separate and distinct regulations applicable to the subjects with which they deal, yet they all fall under the head of "police regulations," and the principle embodied in the rule, it would seem, should be applied as well to the ordinance as to a statute in which the enumeration of specific things followed by general words is all embodied in a single section. To broaden the meaning of the expression so far as to make it include regulations pertaining to subjects wholly beyond the purview of its police power would be to hold that the city may exact of the plaintiff submission to any sort of burden or imposition which the council might deem it expedient to impose, including, for instance, a requirement that the plaintiff, besides lighting its tracks upon the streets upon which they lie, shall also pave and keep in repair throughout their entire length those portions of the same streets. It cannot be questioned that such a requirement would not be within the lawful exercise of the police power. It would simply be an imposition upon the plaintiff of a duty which rests exclusively upon the municipality itself. In accepting the franchise from the city the plaintiff impliedly agreed to become subject to any reasonable police regulation which was in force at the time, as well as to any that might thereafter be enacted. It did not require an express agreement on this subject to enable the city to exact compliance of the plaintiff. Dillon on Municipal Corporations, § 1269. That the city might by an express agreement incorporated in the grant have exacted plaintiff's consent to submit to any imposition which it chose to impose upon it we do not doubt. The plaintiff was not obliged to accept the...
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