State ex rel. City of Minneapolis v. Minneapolis St. Ry. Co.

• Decision Date: 26 December 1952
• Docket Number: No. 35995,35995
• Citation: 56 N.W.2d 564,238 Minn. 218
• Parties: STATE ex rel. CITY OF MINNEAPOLIS v. MINNEAPOLIS ST. RY. CO.
• Court: Minnesota Supreme Court

Page 564

56 N.W.2d 564

238 Minn. 218

STATE ex rel. CITY OF MINNEAPOLIS v. MINNEAPOLIS ST. RY. CO.

No. 35995.

Supreme Court of Minnesota.

Dec. 26, 1952.

Rehearing Denied Jan. 13, 1953.

Syllabus by the Court.

1. Where a court orders judgment on the pleadings, the allegations of the pleading attacked must be accepted as true and stand as admitted.

2. On a motion for judgment on the pleadings, the pleading attacked will be given a most liberal construction, even more so than on a demurrer.

3. Where, in the return and answer to an alternative writ of mandamus ordering the Minneapolis Street Railway Company to restore certain schedules in effect on May 4, 1950, or show cause, the company pleaded that the order was unreasonable and confiscatory in the light of present conditions affecting its business, setting out facts to show such unreasonableness, the court erred in granting judgment on the pleadings and ordering the issuance of the writ. The pleaded unreasonableness was a question of fact to be determined on evidence.

Clarence O. Holten and James E. Dorsey, Minneapolis, Dorsey, Colman, Barker, Scott & Barber, Minneapolis, of counsel, for appellant.

John F. Bonner, City Atty., and Carsten L. Jacobson, Asst. City Atty., Minneapolis, for respondent.

MAGNEY, Justice.

Appeal from a judgment entered pursuant to an order of the district court of Hennepin county directing on the pleadings the issuance of a peremptory writ of mandamus to compel the Minneapolis Street Railway Company forthwith to restore the streetcar schedules and service on certain of its lines to those in effect as of May 4, 1950.

The parties will be referred to herein as the city and the company.

The petition for an alternative writ of mandamus and the writ itself set out substantially the following facts. The company as of May 4, 1950, had established and was maintaining a system of streetcar routes and schedules of its own choice. The city council on May 4, 1950, adopted the following resolution:

'The City Council hereby fixes and establishes as regular routes and schedules those regular routes and schedules being maintained by the Minneapolis Street Railway Company as of May 4, 1950. The Company shall not change, amend, curtail or discontinue any of its regular street car routes or schedules in effect on May 4, 1950, until and unless the City Council shall approve such change, amendment, curtailment or discontinuance, after notice given as hereinafter provided. Such notice must be filed with the City Council at least fourteen days prior to the time when said company desires to put into effect any proposed amendment, change, curtailment or discontinuance in street car routes, or schedules, and shall contain the reasons why such amendment, change, curtailment or discontinuance is necessary.'

On or about May 8, 1950, the company was notified of the adoption of the resolution and served with a copy thereof. According to the petition and writ the company, subsequent to May 4, 1950, violated the provision of the resolution by curtailing, discontinuing, amending, and changing its regular streetcar routes and schedules on certain specifically described lines without the consent or approval of the council. The council thereupon on January 11, 1952, adopted a resolution declaring that the service on such lines, which had been curtailed, discontinued, amended, or changed without the approval of the council, should be restored to the service as of May 4, 1950, by February 1, 1952, and that no further changes, amendments, curtailment, or discontinuance in service should be made without the consent of the council. The company was notified of the council's action. The petition and alternative writ further set out that the council, since its action of May 4, 1950, has not consented to or approved of any curtailment, discontinuance, amendment, or change by the company in the service of any of the streetcar lines specifically mentioned except when the council on June 9, 1950, took action to grant the request of the company for discontinuance of certain owl service on the Lake street line. It is alleged that, notwithstanding such lack of consent or approval and in violation of the council's action of May 4, 1950, the company has curtailed, discontinued, amended, and changed the service and has failed and neglected to operate thereon a sufficient number of cars to fully comply with all schedules required by the council or to adequately accommodate the traveling public and in these and other respects has failed and neglected to furnish reasonable and adequate service and facilities for the accommodation of the traveling public.

In its return and answer to the alternative writ of mandamus, the company admits that the city council on January 11, 1952, adopted the resolution above referred to and that it was notified thereof. It alleges that the schedules in effect on the six street car lines described in the writ, which were in effect on May 4, 1950, were not new schedules as of that date but had been in effect for substantial periods of time, varying as to each line, prior to May 4, 1950; that the said schedules were suited to the transportation needs of the number of passengers riding said lines on or about the times when such schedules were adopted; that, as to each of said streetcar lines, the number of passengers riding thereon from month to month commencing with the date of the adoption of the schedules in effect as of May 4, 1950, has shown a steady and large decline up to and including the date of the return; and that Schedules reasonable and appropriate as of the date of their adoption and in effect as of May 4, 1950, would, if in effect now without change, be wholly unreasonable, would constitute service and facilities greatly in excess of that required to be reasonable and adequate for the present number of passengers thereon, would result in great loss to the company, and would be confiscatory of its property without due process of law. The company further alleges that it has from time to time, from and after May 4, 1950, made changes in its schedules on each of said streetcar lines; that the city has been notified thereof and has taken no action to approve or disapprove the same except in the case of the owl service on the Lake street line; that the failure of the city to take action or disapprove of said change had the legal effect of approving the same; and that each of said changes has been appropriate and proper in connection with the number of passengers as they existed at the time of such changes and has resulted at all times in reasonable schedules within the scope of M.S.A. § 220.09. It further alleges that, commencing sometime after August 1945, there has been a general decrease nationally and in the company's business in the number of passengers riding metropolitan mass transportation facilities and that this decline in number of passengers has been due largely to the rapid increase of passenger automobiles, to the general adoption of the five-day work week, to the increase in domestic television and the decrease in attendance at movie theaters, to the increase in outlying suburban shopping centers, to the increase in the number of outlying churches, to the expiration of the veterans' educational program, and to other economic factors. The company further alleges that the riding public on each of said streetcar lines is now adequately served by the schedules at present in effect; that the restoration of schedules in effect as of May 4, 1950, would cost a large amount of money and the cost of operations of such additional schedule would be greatly in excess of any additional revenue that could be derived therefrom; that restoring schedules in effect on May 4, 1950, Is unnecessary, arbitrary, and unreasonable; that compliance as of the present time with its purported requirements would deprive the company of property without due process of law; and that its enforcement will be in violation of constitutional provisions. The company alleges that it is not now earning, and for several years last past it has not earned, a reasonable return on the fair value of its property used and useful in the conduct of its business and that the issuance of a peremptory writ as prayed for would result in a substantial increase in the amount by which the defendant will be unable to make such a fair return, thereby resulting in additional and substantial continued confiscation of its property, contrary to law.

The city moved the court for an order for judgment in its favor on the pleadings for the relief prayed for in the petition, namely for a peremptory writ of mandamus, on the ground that the company in its return and answer has not pleaded or asserted any defense to the city's right to relief so prayed for and specified.

On June 27, 1952, the court granted the city's motion for judgment on the pleadings. It ordered that a peremptory writ of mandamus issue out of the court commanding that the company forthwith restore the streetcar schedules and service on the specific lines mentioned to those in effect as of May 4, 1950. The company appeals from the judgment entered upon said order.

In a memorandum accompanying the order, the court stated:

'A stay of the order herein is granted to give the respondent (the company) an opportunity, if it so desires, to petition the city council for a hearing with respect to matters recited in its answer and return, or to follow such other procedure as it may deem advisable. The Court is of the view that the council resolution of May 4, 1950, approving the respondent's regular routes and schedules and establishing a procedure for the consideration of changes therein, was not unreasonable. Respondent failed to follow that procedure. The Court does not hold that respondent has no right to test the reasonableness of the order of the city council in the light of present conditions, but that it is under the duty...