Minneapolis St. Ry. Co. v. City of Minneapolis

• Decision Date: 21 April 1911
• Citation: 189 F. 445
• Parties: MINNEAPOLIS ST. RY. CO. v. CITY OF MINNEAPOLIS et al.
• Court: U.S. District Court — District of Minnesota

189 F. 445

MINNEAPOLIS ST. RY. CO. v. CITY OF MINNEAPOLIS et al.

United States Circuit Court, D. Minnesota, Fourth Division.

April 21, 1911

[Copyrighted Material Omitted] car company for a violation thereof, that company shall not be liable to the penalty in any case wherein another car on the same line proceeding on the same track and in the same direction and containing fewer passengers than the carrying capacity, shall at the time be within 300 feet of the point where the excess passenger is admitted, does not impose any obligation on the company, and does not require it to run its cars 300 feet apart, but merely relieves the company from the obligation imposed on it in another part of the ordinance and the proviso is not violative of the federal Constitution.

N. M. Thygeson and J. C. Michael, for complainant.

D. Fish, for defendants.

WILLARD District Judge.

After hearing the arguments of respective counsel, the court rendered the following decision, orally:

I will follow the order pursued by counsel, and in discussing the two branches of this case, I will take up first the so-called construction and extension ordinances.

Section 3 of the original ordinance of 1875 provides as follows:

'The city council may at any time designate any other line of railway in the said city as a line demanded by the public necessities; and may also designate an extension of any existing line or lines.

'And in case said company, upon being notified of such designation shall not within such reasonable time as shall be fixed by the city council, construct and put in operation such line, then the city council may charter to any other company the exclusive right to construct and operate a street railway in the street or streets so designated.'

I eliminate from this discussion all the ordinances passed prior to 1911. I do so, because in all of them, except two, there is no attempt whatever to fix any time within which the street railway company must complete the line. These ordinances on their face, so far as they are an attempted compliance with section 3 of the ordinance of 1875 are completely null and void, impose no obligation or liability upon the company, and furnish no ground for the claim on the part of the company that they impair in any way the obligation of its contract with the city, or deprive it of its property without due process of law.

There is one ordinance which directs the company to commence construction forthwith, but that is not in compliance with the terms of section 3. The ordinance relating to the Franklin Avenue line requires the company to commence construction by April 1st, but nowhere in that ordinance is there any determination of the time within which the line shall be completed; and that is an essential feature of section 3.

Before the city council can give another company the right to maintain a car line upon any street in the city on which an extension has been ordered, it must determine the time within which the complainant company must complete such extension. That has not been done in any of these ordinances passed prior to 1911. They are all entirely worthless and inoperative, in so far as they attempt to impose any duty upon the railway company. I should require considerably more argument than I have heard now before I should be convinced that the street railway company, under the terms of the various ordinances now existing, could be compelled by the city to make any extensions, or to construct any new lines. My present opinion, which of course may be changed by future argument, is that there is no such power in the city. This point was not overlooked when the original ordinance of 1875 was made. Not only was there a provision with regard to new lines, but there was a provision in section 2 with regard to other lines, and that section expressly required the company to construct lines upon determined streets, required them to be completed within a specified time, and provided if they were not completed within that time that all the rights of the company given by the charter should be lost. But when they came to treat of extensions and new lines, while they provided that they might be ordered, they made no provision that the city council might compel their construction, neither did they make any provision if the new lines were not constructed and such extensions were not made that the company should forfeit all its rights under the charter. The remedy was made specific and was set forth in terms.

The ordinance indicates plainly that the only remedy which the city had then, and has now, was and is the granting to some other company the right to maintain street cars upon these streets as to which extensions or new lines had been ordered. To my mind, that is the only remedy. There is no power in the city council to compel the construction of these new lines. It is said that that remedy is valueless, that it is worthless; that no other company would take a charter to construct these extensions or new lines. Whether this is true or not is of no importance. The parties made the contract as it now is, and they are bound by it. But it may be added that at the time the contract was made it was not an absolutely inadequate remedy. Those were the days of horse cars. They were not the days when street railways were operated from a central plant which required the expenditure of an enormous amount of money for its construction.

There is, moreover, another provision in section 4 of the ordinance which makes the remedy apparently of more value than it appears on its face to be. That section specifically provides that any company to which a charter was granted to construct lines on a street in whcih the present company refused to make construction should have the right to use the rails and tracks of the old company under such terms as might be determined by the district court of Hennepin county. So I do not think it can be said that when that contract was made it was entirely one-sided. I say this is my present opinion upon that branch of the case; but it is not necessary to decide the question now, because in my judgment we have not yet reached it.

It is claimed by the complainant that the four or five-- four, I think--ordinances passed in 1911 are void because they impair the obligation of the contract between the company and the city, because they deprive the company of its property without due process of law, and because they deny the company the equal protection of the law.

I shall dismiss the last claim without any further consideration because I think there is absolutely nothing in it. But upon the first two claims it is necessary to consider the precise terms of the ordinances which are thus assailed. I will take as an example Exhibit M. That ordinance was approved on the 17th day of March, 1911, and provides for an extension of the line upon Plymouth avenue, from the terminus of the present car line on said avenue west to Sheridan avenue.

The ordinance commences by declaring:

'That street car service is demanded by the public necessities upon the following named avenue.'

-- and then says:

'That the Minneapolis Street Railway Company be and it is hereby authorized and directed to lay, construct, and equip a double track electric street railway upon and over said Plymouth avenue,' etc., 'and to put the same in operation within the period hereinafter prescribed, as a part of its city street car system.'

The ordinance further provides (and I call it an ordinance although it is denominated a resolution):

'That the period of five months immediately following the passage of these resolutions be and is hereby declared to be, in the judgment of this council, a reasonable time within which to complete said construction and equipment.'

That is all there is of the ordinance. It does not in any way indicate what the city proposes to do if the company does not comply with the ordinance. It does not order or direct any officer of the city to take any action whatever. It simply declares that the public necessities demand this construction, fixes the time within which the construction shall be made, and orders the company to make it.

Now, wherein does that ordinance impair the obligation of the contract between the company and the city, or in what way does it deprive the company of its property without due process of law? It is an ordinance-- a resolution-- passed in strict conformity with section 3 of the ordinance of 1875. But it is said that it violates the contract in the respects claimed, because upon some of these streets it is made to appear by the bill that sewers have not yet been laid; and it is claimed that by the terms of the contract between the parties no extensions can be ordered until sewers have been laid.

Of course it is entirely proper for the orator to allege extraneous facts which show a resolution passed by the city council to be in fact void. So I must take the allegations of the bill with regard to the nonexistence of sewers upon any of these extensions to be true.

Legislation with regard to sewers appears in the original ordinance. By that ordinance the company was bound at its own expense to remove its tracks whenever the city desired to make any improvements on the streets, including the laying of sewers. But in the ordinance approved December 29, 1892, there is the following:

'Sewers shall be built in all streets before new lines shall be ordered, or existing lines shall be ordered extended thereon, and said company shall only be required to construct the lines so ordered between the 1st of April and the 1st of November.'

That ordinance was accepted by the company, and the ordinance itself provided that it should not take effect until so accepted....