State v. Jacksonville St. R. Co.

• Decision Date: 09 February 1892
• Citation: 29 Fla. 590,10 So. 590
• Court: Florida Supreme Court
• Parties: STATE ex rel. CITY OF JACKSONVILLE v. JACKSONVILLE ST. R. CO.

10 So. 590

29 Fla. 590

STATE ex rel. CITY OF JACKSONVILLE v. JACKSONVILLE ST. R. CO.

Florida Supreme Court

February 9, 1892

Original proceedings in mandamus by the city of Jacksonville against the Jacksonville Street Railroad Company to compel the performance of duties in relation to the improvement of certain streets.

Syllabus by the Court

SYLLABUS

1. The dominant control of highways and streets is vested in the legislative power of the state, and, by virtue of legislative enactment, a railroad, operated either by steam or animal power, may be constructed across or along them without the consent of the municipal authorities.

2. It is competent for the legislature to authorize the construction of a street railway, operated by horse-power, as distinguished from one operated by steam, in the public streets, without providing any compensation to abutting property holders along the street through which such road may be constructed. This is upon the theory that such roads are not additional burdens upon the soil of the street, but are legitimate uses of the highway, in furtherance of the purposes for which they were originally dedicated.

3. It is within the power of the legislature to delegate to municipal corporations the right to license or permit railroad companies to lay railroad tracks in the streets in such manner as not to divert them from their original uses but a difference exists between the power of a municipal corporation to grant a corporate franchise and the right to permit a corporation vested with such franchise to place railroad tracks in the public streets. If the municipal body can ever grant a corporate franchise, such power must be expressly conferred by the legislature.

4. The authority of a general nature to regulate and control the streets usually granted to municipal bodies is generally deemed sufficient to clothe the municipal body with the right to grant or refuse, or otherwise to regulate, the use of the streets for street railways operated by horse-power.

5. The general powers conferred upon municipal bodies by the act of the legislature, chapter 1688, Laws of Florida, as amended by the act of 1877, c. 3024, to regulate, improve, alter extend, and open streets, and to regulate and control the construction, grading, and repairs of streets, pavements, and sidewalks, invested such bodies with authority to impose by ordinance upon street railways operated by horses, thereafter to be constructed, the duty to keep the portions of the streets between the tracks of said railways and two feet on each side in as good repair and condition as the city keeps the balance of the street, and of even grade with the street.

6. Under an ordinance requiring a street-railway company to keep the portions of streets between its railway tracks and two feet on each side thereof in as good repair and condition as the city keeps the balance of the streets, and of even grade with the street, it is the duty of said street-railway company not only to keep the space between its tracks and two feet on each side of even grade with the balance of the street, and in as good repair as the city keeps the balance of the street, but also to pave the portions of streets between its said tracks and two feet on each side thereof when the city paves the balance of the streets.

7. Where the measure of duty imposed by ordinance on a street-railway company is to keep the portions of streets between its railway tracks and two feet on each side in as good repair and condition as the city keeps the balance of the street, if the balance of the street has in fact been paved under the supervision and control of the city, and is kept in this condition, this is sufficient to require said company to pave under said ordinance; and it is immaterial that there may have been irregularity in the procedure, or a departure from prescribed methods for procuring the pavement of streets.

8. To pave a street is not necessarily to change its grade, as a paving may be done in any way that will make a compact, even hard surface.

9. Mandamus will lie against a street-railway company to compel it to perform a clear legal duty to the public.

COUNSEL

Cooper & Cooper and S.E. Foster, for plaintiff.

John E. Hartridge, for defendant.

OPINION

MABRY J.

This is an original proceeding here by mandamus, instituted by the city of Jacksonville against the Jacksonville Street-Railroad Company to coerce the performance of certain alleged duties in reference to the paving and rapairing portions of certain streets of said city upon and through which said street-railroad company has constructed and is now operating its street railroad.

It is alleged in the alternative writ substantially as follows That the city of Jacksonville is a municipal corporation existing under the laws of the state of Florida, in Duval county, and through its officers has charge and control of the streets within the city limits; and that the Jacksonville Street-Railroad Company is a public corporation and common carrier for bire, existing under the laws of Florida, and as such owns, maintains, and operates a street railway upon and through certain public streets of the said city, among which are Hogan, Bay, Newnan, Union, Cedar, and Beaver streets. That on the 14th day of January, A. D. 1880, the said city of Jacksonville, by ordinance, granted to the said Jacksonville Street-Railroad Company the right to construct a rallway along the streets of said city, a copy of the ordinance being attached as an exhibit to the alternative writ. That the provisions of said ordinance required of said street-railroad company, and by accepting the same said company engaged, contracted, and agreed with said city, that the tracks of said street railroad should be laid down in the best and most approved mode of constructing street railways, and said streets and parts of streets so used by said company for their railroad track, switches, turnouts, crossings, and sidings should be kept, for at least two feet outside of said tracks, in as good repair and condition as the said city keeps the balance of said streets, and of even grade with the streets, (except in cases of regradind,) so that carriages and other vehicles can cross said street-railway track with ordinary ease; and thereby it became and is the duty of said Jacksonville Street-Railroad Company to keep the barts of said streets so occupied by its tracks, switches, turnouts, crossings, and sidings, and for at least two feet outside of said tracks, in as good repair and condition as the said city keeps the balance of said streets. That thereafter the said city paved or caused to be paved with cypress blocks certain of the streets occupied by the tracks of said street railway, to-wit: In the year 1885, Bay street, from Bridge street to the east side of Market street; in the year 1890, Hogan street, from Bay street to the north side of Adams street; and Bay street, from the east side of Market street to Liberty street; and thereupon it became, and still is, the duty of said street-railroad company, under the terms of said ordinance, to pave the space between the rails of its said tracks, and two feet on each side thereof, in said streets where, by the authority of said city, the said streets were so paved, in like manner, and with like material, and of even grade, with the paving of the balance of said streets by the authorities of said city. That, although it was the duty of said street railroad company to pave the portions of said streets, and keep the same in such condition, it has failed so to do at the following points and places, to-wit: On Bay street, at the intersection of Laura street with said Bay street, for a distance of 30 feet, more or less; on Bay street, from the east side of Marker street to Liberty street; and on Hogan street, from Bay street to the north side of Adams street. That, under the provisions of said ordinance, it was and is furthermore the duty of said street-railroad company to keep the said streets and parts of streets so used by it for its railway tracks, switches, turnouts, crossings, and sidings, and at least two feet outside of the same, of even grade with the streets, and in such manner that carriages and other vehicles could and can cross said tracks with ordinary ease; but, although such was and is the duty of said company, it has failed and refused to keep the parts of said streets occupied by its said tracks, switches, turnouts, crossings, and sidings of such grade with the balance of said streets, and in such manner that carriages and other vehicles could and can cross the same with ordinary ease, to-wit: On Bay street, from the east side of Liberty street to a point 20 feet, more or less, east of Laura street; on Newnan street, from Bay street to Union street, thence eastwardly along Union and Cedar streets, to a point near the south-east corner of the old city cemetery, where the boundary line, as it formerly existed, crosses said Cedar street; and on Hogan street, from the north side of Adams street to Beaver street, thence along Beaver street west to a point about half way between Bridge and Clay streets, where the boundary line of said city, as it formerly existed, crosses Beaver street. That said street-railroad company has been often requested by the authorities of said city to perform its said duties in reference to the paving and keeping in condition and repair said streets, but has absolutely refused to perform its said duties, or any of them, and still refuses so to do, to the wrong and injury of the public of said city. By reason of the failure of said street-railroad company to perform its said duties in the premises, the use of said streets by the public as public highways for public travel...