Roanoke Gas Co v. City Of Roanoke

• Decision Date: 20 February 1892
• Citation: 88 Va. 810,14 S.E. 665
• Parties: Roanoke Gas Co. v. City of Roanoke.
• Court: Virginia Supreme Court

14 S.E. 665

88 Va. 810

Roanoke Gas Co.

v.City of Roanoke.

Supreme Court of Appeals of Virginia.

Feb. 20, 1892.

Cities — Police Power — Grading Streets — Riohts oe Gas Company—Obligation of Contracts—Taking Property without Compensation.

1. A municipal corporation cannot alienate the express and plenary powers to grade and improve its streets, granted to it by the legislature; therefore a contract with a gas company, based on a valid consideration, allowing the company to lay pipes in the streets, does not divest the municipality of power to lower the grade of its streets, and, if necessary, to remove as nuisances the pipes thereby exposed to view.

2. The municipal council, and not the court, is the judge of the necessity and expediency of the exercise of such power.

3. Const. U. S. amend. 5, which provides that private property shall not be "taken" for public use without just compensation, does not apply to the removal of such pipes by the city, since there is no actual taking.

Suit for an injunction by the Roanoke Gas Company against the city of Roanoke. Decree dismissing the bill. Plaintiff appeals. Affirmed.

Griffin & Watts, for appellant.

Penn & Smith, for appellee.

RichardsCn, J. This is an appeal from a decree of the corporation court of Roanoke, rendered on the 12th day of November, 1888, in the chancery cause wherein the Roanoke Gas Company was complainant and the city of Roanoke was respondent. The appellant, a corporation chartered under the laws of this commonwealth, for a valuable considerationacquired from said city the privilege of using its streets for the purpose of laying its gas-pipes, and at its own expense built its gas-works, laid its pipes, and entered into contracts with third parties to furnish them gas for domestic and other purposes, and, among others, laid its pipes in Campbell street in said city. Afterwards the city determined to lower the grade of said Campbell street between Roanoke and Commerce streets for the distance of 50 feet. Before the gas-pipes were laid in this street the grade thereof had been established, and the pipes were laid under the instructions of the city engineer. By lowering the grade of said street the pipes were exposed for a distance of 50 feet, and were in some instances removed by the city authorities. This subjected the appellant company to great expense and inconveniences, making it necessary to take up and relay a large portion of said pipes. This action of the city authorities, subjecting the appellant to such expense, and disturbing its property, was taken without notice to it, but after it was done notice was given that the pipes should be removed or lowered at its expense. Thereupon the appellant presented its bill to the judge of said court, setting forth substantially the facts as above, but more in detail, and praying for an injunction restraining said city from further interference with said pipes, and that, whenever it became necessary to lower the grade of said streets, the city should be required to lower the said pipes at its own expense, in order that the appellant might enjoy the franchises to which it was entitled under its contract with the city. An injunction was awarded according to the prayer of the bill. The city, by its counsel, appeared, demurred to the bill, and moved to dissolve the injunction. The demurrer was sustained, the injunction dissolved, and the bill dismissed, at the plaintiff's costs. On the application of the plaintiff an appeal was allowed by one of the judges of this court, aud the decree complained of is here for review.

The one practical and far-reaching question to be solved in this case is whether there is any power in the courts to interfere with or restrain a municipal corporation from exercising in a proper way the powers legitimately conferred upon it by its charter or by law. In that work of superior merit, the American & English Encyclopaedia of Law, (volume 15, pp. 1042, 1043,) it is said: "The general legislative power residing in the state government may delegate to a municipal corporation some portion of its own powers, which are held insubordination to the general power. But these delegated powers given for local objects are regarded as trusts confided to the hands in which they are placed, and are not subject to be delegated by the repositories of them. The rule is plain, then, that the legislative powers of a municipal corporation cannot be vicariously exercised. * * * Clearly related to the foregoing rule is the principle that a municipal corporation cannot divest itself of the legislative discretion conferred upon it by law. It cannot sur render it by contract, nor bind itself not to exercise it whenever it may become necessary. It is important that this principle be strictly observed in order to prevent legislative powers essential to the protection of populous communities from being' frittered away into perfect insignificance;'" and then, on page 104G, it is said: "The discretion of muuicipal corporations within the sphere of their powers is as wide as that possessed by the government of a state. This discretion is to be exercised according to the judgment of the corporation as xo the necessity or expediency of any given measure. The general assembly is a co-ordinate branch of the state government, and so is the law-making power of municipal corporations within the prescribed limits. It is no more competent for the judiciary to interfere with the legislative acts of the one than the other. Where, therefore, municipal corporations or their officers are acting within well-recognized powers, or exercising a discretionary power, the courts are wholly unwarranted in interfering, unless fraud is shown, or the power or discretion is being manifestly abused to the oppression of the citizen;" citing numerous authorities.

In the leading case of Goszler v. George--town, 6 Wheat. 593, Chief Justice Marshall said: "A corporation can make such contracts only as are allowed by the act of incorporation. The power of this body to make a contract which should so operate as to bind its legislative capacities forever thereafter, and disable it from enacting a by-law which the legislature enables it to enact, may well bo questioned. We rather think that the corporation cannot abridge its own legislative power." Not only has the judiciary no power to interfere to prevent a municipal corporation from exercising its legitimate functions, but such corporation itself cannot surrenderor contract away its right to exercise the powers delegated to it. In 1 Bill. Mun. Corp. § 97, it is" said: "Powers are conferred upon municipal corporations for public purposes; and, as their legislative powers cannot, as we have just seen, be delegated, so they cannot, without legislative authority, express or implied, be bargained or bartered away. Such cor-porationsmay make authorized contracts, but they have no power as a party to make contracts or pass by-laws which shall cede away, control, or embarrass their legislative or governmental powers, or which shall disable them from performing their public duties. The cases cited mark the scope and illustrate the application of this salutary principle in a great variety of circumstances; and for the protection of the citizen it is of the first importance that it shall be maintained by the courts in its full extent and vigor." "As the highways of a state, including streets in cities, are under the paramount and primitive control of the legislature, and as all municipal powers are derived from the legislature, it follows that the authority of municipalities over streets and the uses to which they may be put depends entirely on their charters, or the legislative enactments applicable to them.

It is usual in this country for the legislature to confer upon municipal corporations very extensive powers in respect to streets and public highways within their limits, and the uses to which they may be appropriated. * * * The only authority to open, care for, regulate, and improve streets, taken in connection with the other powers usually granted, gives to municipal corporations all needed authority to keep the streets free from obstructions, and to prevent improper use, and to pass ordinances to this end." 2 Dill. Man. Corp. § 680. And in section 685 the same learned author, after stating the proposition that the "power to improve and graduate is continuing and inalienable, " says: "That the use of the streets of travel may be made safe and convenient, the legislature usually confers upon the municipal authorities, in express terms, to graduate and improve them, and supplies the means to carry the power into effect by requiring the inhabitants to perform labor upon the streets, or to pay specific taxes for that purpose, or taxes that maybe appropriated by the corporation." And the author cites the case of Gosstler v. Georgetown, supra, where Chief Justice Marshall said that "the power to graduate given by the legislature was not exhausted by its first exercise, but was a continuing one. The power is given to tlio town to legislate on the subject, to pass as many by-laws relating thereto as the corporation may judge necessary for the benefit of the town. " And bisection 686 the same author says: "That the power to grade and improve streets, like other legislative powers, is a continuing one, unless the contrary be indicated, has been frequently decided in both the federal and state courts. It may therefore be exercised from time to time, as the wants of the public may require. Of the necessity or expediency of its exercise the governing body of the corporation, and not the court, is the judge. And the law is also settled that, unless expressly so declared by special constitutional provision or by charter or statute, a municipal corporation is not liable to property owners for the consequential damages necessarily resulting from either establishing a grade or changing an established grade or...