State, Ex Rel., v. Cincinnati & Lake Erie Rd. Co.
| Decision Date | 28 March 1934 |
| Docket Number | 24308 |
| Citation | 128 Ohio St. 95,190 N.E. 224 |
| Parties | The State, Ex Rel. Wear, Pros. Atty., v. Cincinnati & Lake Erie Rd. Co. |
| Court | Ohio Supreme Court |
Municipal corporations - Quo warranto - Interurban, established under valid franchise, but operating after expiration - Application to Public Utilities Commission prerequisite to ouster by municipality - Sections 504-2 and 504-3, General Code.
An interurban electric railroad, whose tracks were laid and whose inter-community service was established through the streets of a city along its route, under a valid franchise but whose present owner acquired it from a federal receiver and since has for several years operated such railroad through such city without a franchise, may not be ousted from the streets of such city through proceedings in quo warranto until an application to abandon its tracks and to discontinue its service has been allowed by the Public Utilities Commission of Ohio, pursuant to Sections 504-2 and 504-3 General Code. (Lake Shore Electric Ry. Co. v. State, ex rel. Martin, Pros. Atty., 125 Ohio St. 81, approved and followed.)
The Cincinnati and Lake Erie Railroad Company operates an electric railway system extending from Cincinnati through Dayton and Springfield to Toledo, and to Columbus. This system is operated as a unit. The defendant company has no franchise from the city of Springfield. On March 16th, 1931, the city commission of the city of Springfield adopted a resolution directing said company to cease operating over its streets. Pursuant to said resolution this action in quo warranto was filed in the Court of Appeals of Clark county, Ohio, seeking to oust the said company from the use and occupancy of said streets. An answer was filed by the defendant to which a demurrer was interposed. The demurrer was overruled. Whereupon, by leave of court, a reply was filed which was demurred to. The demurrer to the reply was sustained and judgment was entered and exceptions taken. The case is in this court on error to the judgment of the Court of Appeals.
Since the year 1895 the railway in question has been operated through the streets of Springfield by the present company and its predecessors in title. In 1907 a franchise was granted to the Indiana, Columbus and Eastern Traction Company, one of said predecessors, which by its terms expired in August, 1932. In 1921, however, the railroad was placed in the hands of and was operated by a receiver appointed by the United States District Court for the Northern District of Ohio, Western Division. The receiver did not operate under the franchise. On December 26, 1929, the respondent company, by purchase, acquired the said railroad from the said receiver, and since that date has operated the said railroad through the streets of Springfield without a franchise.
There appear to have been negotiations concerning a franchise between the respondent company and the city of Springfield, but no agreement has ever been reached.
The respondent company alleges, however, that during the period of its occupancy of the streets, it has, by agreement with the city, expended large sums of money in the installation of curve tracks at one point in Springfield, and the reconstruction of tracks and roadbed at another, and has made large investments in Springfield. It alleges that by reason of the course of dealing between it and the city, the latter has acquiesced in the occupancy of its streets. This acquiescence the relator strenuously denies.
The answer of the respondent company alleges that the portion of its line extending through the city of Springfield is an integral and necessary part of the main line of its system without which the operation of the remainder is impossible. It alleges further that neither the city of Springfield nor the plaintiff in error has made any application to the Public Utilities Commission of Ohio for authority to have the railway property abandoned, or its service discontinued, and that neither consent nor authority for such abandonment and discontinuance has been granted.
It is further alleged that the defendant in error is a common carrier engaged in interstate commerce, and is, therefore, subject to Section 8 of Article I, Clause 3, of the Constitution of the United States.
It is also alleged that since the filing of this proceeding in quo warranto the respondent company has been placed in the hands of receivers appointed by the District Court of the United States for the Southern District of Ohio, Western Division.
Mr. Orville Wear, prosecuting attorney, Mr. M.E. Spencer, city solicitor, Mr. A.C. Link and Messrs. Zimmerman, Zimmerman & Zimmerman, for plaintiff in error.
Messrs. Martin & Corry, for defendant in error.
As the parties stand here in the same positions as they stood below, they will be referred to respectively as relator and respondent.
Upon the case before us three principal points are presented for decision:
1. May the city of Springfield maintain an action to oust the respondent from the streets without first having applied to the Public Utilities Commission for authority to have the railway property abandoned and the railway service discontinued.
2. May a state court make an order which must result in the discontinuance of the respondent company's service while such company is engaged in the transportation of persons and property in interstate commerce?
3. May the state court make an order of ouster from the streets of Springfield while the respondent company is in the hands of a receiver appointed by a federal court?
1. The respondent company is a railroad as defined in Section 501, General Code.
Section 504-2 General Code, provides as follows:
Section 504-3, General Code, provides as follows:
"Any such railroad or any political subdivision desiring to abandon, close, or have abandoned, withdrawn or closed for traffic or service all or any part of such main track or tracks, or depot * * * shall first make application to the public utilities commission in writing who shall thereupon cause reasonable notice thereof to be given, stating the time and place fixed by the commission for the hearing of said application. * * *"
Constitutional authority for this legislation is found in Article KIll, Section 2, of the Ohio Constitution:
Additional authority is fond in the police power. In Board of County Commissioners of Franklin County v. Public Utilities Commission, 107 Ohio St. 442, at page 451, 140 N.E. , 87, 30 A.L.R. 429, this court, speaking of the Miller Act, of which the foregoing sections are a part, said:
To the implications of the foregoing statutes the relator makes several contentions.
(a)
It is contended that the Miller Act was never intended to provide anything but supervision over the character and kind of service to be furnished by a public utility. To this contention the express language of the statutes quoted seems sufficient answer. "No railroad * * * shall * * * be required to abandon * * * any* * * track * * * nor shall be closed for traffic or service thereon * * * except as provided in section 504-3."
(b) It is contended that Section 504-2, General Code, and Section 504-3, General Code, if given the construction placed upon them by the respondent, are in conflict with Article XVIII, Section 3, of the Constitution of Ohio:
"Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws."
In support of this contention are cited the cases of East Ohio Gas Co. v. City of Cleveland, 106 Ohio St. 489, 140 N.E 410; Ohio Public Service Co. v. State, ex rel. Fritz, Pros. Atty., 113 Ohio St. 325, 149 N. E., 129; Ohio Electric Power Co. v. State, ex rel. Martin Pros. Atty., 121 Ohio St....
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