Ohio Electric Railway Co. v. Ottawa
| Decision Date | 16 January 1912 |
| Docket Number | 12866 |
| Parties | Ohio Electric Railway Co. v. Ottawa. |
| Court | Ohio Supreme Court |
Municipal corporation has no authority - To compel street railroad company - To light its bridge within limits of corporation - Section 1536-176, Revised Statutes.
A municipal corporation has no authority to compel an interurban or street railroad company to light its bridge or railroad within the limits of such corporation. Section 1536-176, Revised Statutes, applies only to steam railroads.
The village of Ottawa brought suit in the court of common pleas of Putnam county against The Ohio Electric Railway Company to enforce the collection of a claim which the village had for lighting the tracks of the railway. The petition after averring the incorporation of the parties alleged that the defendant operated cars through said village on certain streets named; that the defendant had prior to the commencement of the suit succeeded to all the rights of a prior company owning said tracks; that on May 6, 1907, the council of the village passed an ordinance by the provisions which, it required The Lima & Toledo Traction Company, which was the predecessor in title to the defendant, to light its tracks within the limits of said village with 40 candle power incandescent electric lights located as named in the ordinance; that a copy of the ordinance was served on The Lima & Toledo Traction Company that upon failure of the company to light its tracks as required by said ordinance the village furnished the same and demand was made of the defendant for the cost of said lights which was refused.
To this petition defendant filed a general demurrer, which was sustained by the common pleas court and the petition dismissed. This judgment was reversed by the circuit court and this proceeding is brought, seeking to reverse the judgment of the circuit court and affirm that of the common pleas.
Mr. J W. Smith and Messrs. Cable & Parmenter, for plaintiff in error.
The legislature, the courts of the state,---common pleas, circuit and supreme,---uniformly hold that interurban railways are classed with street railways and not with steam railroads, and that statutes regulating the latter class of companies have no application to the former, except when made so to do by clear reference. Loan & Trust Co. v. Hamilton, 88 F. 588; State v. Traction Companies, 18 C. C., 490, 64 Ohio St. 272; Railway Co. v. Telegraph Assn., 48 Ohio St. 390; Traction Co. v. Traction Co., 47 W. L. B., 854; Bridge Co. v. Iron Co., 59 Ohio St. 179; Railway Co; v.Railroad Co., 21 C. C., 391, 64 Ohio St. 550; Railway Co. v. Traction Co., 26 C. C., 1, 72 Ohio St. 645; Railway Co. v. Railway Co., 26 C. C., 180, 73 Ohio St. 364; Railroad Co. v. Lohe, Admr., 68 Ohio St. 110; Greene v. Railroad Co., 62 Ohio St. 67; Commissioners v. Traction Co., 75 Ohio St. 548.
Messrs. Bailey & Leasure, for defendant in error.
We admit that in some instances and for certain purposes this court has classed interurban electric railroads with ordinary street railroads, but at the same time we contend that the trend of later decisions establishes the principle that an interurban electric railroad running from town to town assumes the burden and obligations of a steam road and should be held accountable for negligence in operation of its cars to the same extent that a steam road is held. And such interurban cars in passing through municipalities become the source of as much or more danger than the trains operated on steam railroads; that therefore there is no reason for such distinction on the question of lighting tracks, and electric roads should be held amenable to the act requiring railroads to use every consistent precaution necessary to avoid the destruction of life and property, and that the lighting of such tracks is such necessary precaution as the public is entitled, even under the present legislation and the decisions of this court. Railroad Co. v. Anchors, 114 Ala., 492; Railway Co. v. Railway Co., 95 Wis. 561, 37 L.R.A. 856; Abbott v. Light, Heat & Traction Co., 126 Wis. 634; Diebold v. Traction Co., 117 Ky. 146,63 L.R.A. 637; Zehren v. Ry. & Light Co., 99 Wis. 83,41 L.R.A. 575; Marsh v. Light, Heat & Traction Co., 134 Wis. 384, 114 N.W. 804.
The demurrer to the petition raised the question whether a municipal corporation has the power to compel an interurban railroad company, operating its cars by electricity, to light its railway or any portion thereof within the limits of the municipality, and there is no other question in this case.
Defendant in error contends that the ordinance requiring the lighting which is referred to in the petition, was authorized by Section 1536-176, Revised Statutes, while plaintiff in error insists that the section applies only to steam railroads and not to street or interurban railroads. The section referred to provides that when deemed necessary by the council, it shall pass an ordinance requiring the individual or company owning or operating a bridge or railway within its limits, to light such bridge or railway within a specified time. Section 1536-179, Revised Statutes, provides that on failure of the owner or operator to comply with the ordinance within the time fixed the municipality may light the bridge or railway at the expense of the owner or operator. The legislature had enacted the original statute, from which Section 1536-176 was taken, long before the existence of interurban or electric railroads. A considera- tion of the course of legislation on the subject, which has been gathered and set forth in the briefs of counsel, discloses that the general assembly has not regarded interurban railroads as being included in the term "railroad," but that inter-urban railroads have been classed by the legislature with street railroads.
This court has recognized and enforced that distinction and classification in a number of cases, and has held that statutes as to railroads, do not apply to street railroads unless clearly provided by the statute itself. Massillon Bridge Co. v. Cambria Iron Co., 59 Ohio St. 179; State v. Traction Companies, 64 Ohio St. 272; Cincinnati, Lawrenceburg & Aurora Elec. St. Ry. Co. v. Lohe, Admr., 68 Ohio St. 101; Commissioners v. Traction Co., 75 Ohio St. 548. The construction and operation of interurban railroads are authorized by act of bay 17,1894, 91 O. L., 285, being Sections 3443-8 to 3443-13, Revised Statutes. Section 3443-13 provides "Such companies shall be subject to the same regulations now provided for street railroads, in so far as the same are applicable, and shall have all the powers in so far as they are applicable, that other street railroad companies have." The subsequent acts of the legislature passed from time to time, since the enactment of the above statute, in reference to many different matters touching the subject, and in which the distinction pointed out has been preserved, sufficiently indicate its satisfaction with that distinction and classification.
Bridge Co. v. Cambria Iron Co., 59 Ohio St. 179, involved the construction of Sections 3207 and 3208, Revised Statutes relating to the building of railroads and liens for labor and material employed in such building. It was claimed that the word "railroad" included street railroads and that the liens of laborers and material men were a first lien on a street and interurban railroad under the latter section. But...
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