Henderson v. Central Pass. Ry. Co.

• Decision Date: 22 July 1884
• Citation: 21 F. 358
• Parties: HENDERSON v. CENTRAL PASSENGER RY. CO. [1] CENTRAL PASSENGER RY. CO. v. LOUISVILLE CITY RY. CO. (FN1)
• Court: United States Circuit Court, District of Kentucky

21 F. 358

HENDERSON v. CENTRAL PASSENGER RY. CO. ^[1]

CENTRAL PASSENGER RY. CO. v. LOUISVILLE CITY RY. CO. (FN1)

United States Circuit Court, D. Kentucky.

July 22, 1884

A. P Humphrey and St. John Boyle, for Louisville City Ry. Co. and Mrs. Henderson.

Brown &amp Davie, Barnett, Noble & Barnett, and Zach. Phelps, for Central Passenger Ry. Co.

BARR J.

These cases come to this court from the Louisville chancery court and from the vice-chancellor's court, with injunctions already granted upon ex parte motions; and they are now submitted upon motion of defendants, in each case, to dissolve the injunctions. The Louisville City Railway Company has filed a cross-bill against the Central Passenger Railway Company, and has moved for an injunction. These motions really involve the same question, and will be considered together. The material question is, who has the right to run a street railway down Bank street, in this city, from Nineteenth street to and through Portland to the wharf, by what is commonly called the 'Bank-street route?' The Central Passenger Railway Company claims this right by and under the authority of an ordinance approved January 25 1884, and an act of the general assembly approved March 14, 1884. The act repeals all laws and ordinances in conflict with the grant therein made, which is a grant to build and operate a street railway over the route in controversy. This authority is sufficient, and gives the Central Passenger Railway Company this route, unless the act itself is unconstitutional, as impairing the obligation of a contract, or because it deprives the Louisville City Railway Company of its property without due process of law.

The state of Kentucky owned, by purchase, the Lexington & Ohio Railroad, and donated to the Kentucky Institution for the Education of the Blind that part of the road which ran from Sixth street, in Louisville, along Main street, and over the Louisville & Portland turnpike (known as Portland avenue) to the Portland wharf. The franchises of the Lexingtion & Ohio Railroad, which had been extinguished by the sale to the state, were not donated; but in the act approved March 2, 1844, in which the donation was made, and which incorporated the Louisville & Portland Railroad Company as a part of the Kentucky Institution for the Education of the Blind as an agency to operate the road donated, power was given 'to do and perform every act and thing necessary and proper to carry into effect the provisions of the act, and to promote the design of this corporation. ' It also gave in express terms the authority for the company to purchase 'passenger and burden cars,' and to furnish the means of transportation, and 'the right to charge and exact tolls and fees from passengers, and for transporting any baggage or thing. ' In an amendment approved February 10, 1846, the Louisville & Portland Railroad Company was given authority to make its 'said road' from any part of the city of Louisville to any part of the town of Portland, with the consent of the municipal corporations of Louisville and Portland. There were efforts to organize the Louisville & Portland Railroad Company under this law, but they were unsuccessful.

In an act entitled 'An act in relation to the Louisville & Portland Railroad,' approved January 9, 1852, it is recited that the company, organized under the act of 1844, had surrendered its stock and abandoned the enterprise, and the Kentucky Institution for the Education of the Blind is invested with all the rights and powers which were given in said act of 1844 and its amendments. It was given the authority to manage 'the construction and use of said road and its appendages,' either by its own officers, or through the president and directors of the Louisville & Portland Railroad Company, pursuant to and under a contract which said Institution for the Education of the Blind was authorized to make with that company. It was provided in the second section of this act that the location of said railroad might be made either on the line described in said act of 1844, or on such line as the Kentucky Institution for the Education of the Blind 'may choose, with the consent of the city authorities of Louisville, so that it shall extend between any points on or near the river, above or below the falls, and within two miles thereof.'

The town of Portland had been united with Louisville and became a part of it. In 1853 the city council gave to the president and visitors of the Kentucky Institution for the Education of the Blind its consent to the building and operating a railroad with 'horse-power' to Portland wharf, over any street or streets in the city lying north of Main street and west of Twelfth street. The Kentucky Institution for the Education of the Blind, under the authority given to contract with the Louisville & Portland Railroad Company, did, by an agreement dated April 1, 1853, transfer its right to build and operate a railroad, and all rights and franchises pertaining thereto, to that company, which had then been reorganized. The company agreed, in consideration of this transfer, to pay the Kentucky Institution for the Education of the Blind $600 per annum, and a certain part of the net profits, should they exceed $15,000 per annum; and did pay the $600 for one or more years after the road was completed. Under the authority thus transferred the Louisville & Portland Railroad Company built, during the years 1853 and 1854, a railroad from Twelfth street over the Bank-street route, (part of which is in controversy,) and operated it with horse-power until the Louisville & Portland Railroad Company sold out to the Citizens' Passenger Railway Company, in 1866.

It was suggested in argument that the franchise granted by the state of Kentucky was to build and operate an ordinary steam railroad, and the city had no authority to grant the right to this railroad company to build and operate a street railway over its streets. There is now a well-recognized distinction between the franchise to build and operate an ordinary steam railroad, and the franchise to build and operate a street railway over and along the level of streets in a city. But it will be observed, in this connection, that the donation was made without the franchises of the old Lexington & Ohio Railroad Company being granted with it; and there is no grant, in terms, of the use of steam-power in operating the road donated, and certainly there is no prohibition of the use of horse-power. Indeed, whatever may have been the character of the old road on Portland avenue, which was originally built as part of the Lexington & Ohio Railroad, there can be no serious doubt of the right of the city of Louisville to indicate the power to be used in propelling cars over a new route, which could only be operated with its consent. The legislature's grant to operate another road was conditioned upon the consent of the city. This was indispensable, and certainly the city might protect the local public by limiting the 'power' to be used. The Louisville & Portland Railroad Company's charter nowhere requires steam-power to be used, and the utmost that can be contended for is that the authority to use steam is implied from the character of the road donated. The charter gave authority 'to do and perform every act and thing necessary and proper to carry into effect the provisions of the act and promote the design of the corporation;' and, under this authority, the Louisville & Portland Railroad Company could agree to use horse instead of steam power, even if they had the implied authority to use steam-power. We think, therefore, the Louisville & Portland Railroad Company had the legal right to the road built over the Bank-street route, and to operate it with horse-power. This was an existing right when the act entitled 'An act reserving power to annul or repeal charters and other laws,' approved February 14, 1856, was passed. The rights of this company may have been more than those usually embraced in a franchise to build and operate a street railway. Thus, it had a right to transport freight as well as passengers; and it may not have been obliged to have its road run on the same grade as the streets, or to change or alter its grade when the grade of the streets was changed. But, whatever these rights were, if they were greater than are usually embraced in a franchise to run a street railway, they were surrendered by a release executed by the Louisville & Portland Railroad Company to the city of Louisville, dated November 23, 1865. In that release, the Louisville & Portland Railroad Company waived and released all exemption from taxation, and other exclusive privileges and franchises, and agreed that--

'Said Louisville & Portland Railroad Company, their line of road, cars running thereon, and property connected therewith, shall be subject to the control of the general council of said city of Louisville, and the terms and stipulations contained in the aforesaid articles of agreement, (which said articles of agreement are referred to to be read as a part hereof,) in the same manner and to the same extent as the Market-street road, aforesaid, and as though the rights, privileges, and franchises of said Louisville & Portland Railroad Company were conferred by, and exclusively dependent on, said articles of agreement.'

The 'agreement,' made part of this writing, was one between the city of Louisville and Isham Henderson and his associates, granting them the right to build and operate a street railway over Market and certain other streets in the city, and regulating the use and operation of said railway.

The learned counsel for the defendant insists that the Louisville & Portland Railroad Company surrendered all of its rights and franchises, and...