State v. Louisville & N.R. Co.

• Citation: 158 Ala. 208,48 So. 391
• Parties: STATE EX REL. ATTORNEY GENERAL v. LOUISVILLE & N. R. CO. ET AL.
• Decision Date: 18 June 1908
• Court: Alabama Supreme Court

48 So. 391

158 Ala. 208

STATE EX REL. ATTORNEY GENERAL v. LOUISVILLE & N. R. CO. ET AL.

Supreme Court of Alabama

June 18, 1908

On Rehearing, Jan. 14, 1909.

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Suit by the State, on the relation of the Attorney General, against the Louisville & Nashville Railroad Company and others. Judgment for defendants, and relator appeals. Affirmed.

Alexander M. Garber, Atty. Gen., Marks & Sayre, Rushton & Coleman, H F. Reese, and S. H. Dent, Jr., for appellant.

George W. Jones and Knox, Acker & Blackmon, for appellees.

HARALSON J.

1. The questions presented on this appeal are, first, whether the city council of Montgomery had the power, under its charter to authorize the obstruction of Lee street in said city, by the erection thereon, at the foot of said street, of the freight depot of the Mobile & Montgomery Railway Company or of the Louisville & Nashville Railroad Company--the latter being the lessee of the first named railroad company--which depot extends entirely across said street at its foot; and second, if it did not have such authority, whether the act of the Legislature of December 10, 1900 (Laws 1900-01, p. 239) "to ratify, legalize and confirm all grants, rights, privileges, and franchises, heretofore granted or attempted to be granted to railroads by the city council of Montgomery," was constitutionally enacted, and if so, if it cured and vitalized such lack of authority, and rendered the action of the city council in granting the right to obstruct said street valid, as though the city had such authority under its charter, in the beginning.

The court below held, that such authority in the city did not exist under its charter, and from such want of authority, the act of the city granting that right was void, but that the legislative enactment of December 10, 1900, was validly enacted, and cured that defect or want of authority and rendered the contract of the city with the railroad companies valid and binding.

2. As to the first of these propositions, it is scarcely necessary to enter upon its consideration, since the question is so well settled by the decisions of this court, and of other jurisdictions, and by the text writers.

The question received consideration at our hands in the case of Douglass v. City Council of Montgomery, 118 Ala. 599, 24 So. 745, 43 L. R. A. 376, where it was held, that municipal corporations hold title to streets, public squares, and parks, in trust for the public, and when lands have been dedicated for such purposes, the municipality has no power, unless specially authorized by the Legislature, to sell such lands for its own benefit, or to appropriate them for the use and benefit of private persons or corporations, or in any way divert them from the uses to which they were originally dedicated. Webb v. Demopolis, 95 Ala. 116, 13 So. 289, 21 L. R. A. 62; 2

Dillon on Munic. Corp. §§ 575, 650; 15 A. & E. Ency. Law (1st Ed.) 1064; 17 A. & E. Ency. Law (1st Ed.) 417.

It is not pretended that the city council had any authority in its charter to dispose of this street in the manner it did, or to abolish it, and under the authorities, its attempt to do so was unauthorized and void. This is practically admitted in the necessity which was supposed to exist, to have the Legislature, by the curative act of December 10, 1900, validate said unlawful procedure on the part of the city council. Without this enactment, the contract of the city with these corporations, of date June 20, 1896 (Exhibit A to the bill), would fall of its own weight, as being unauthorized and void; and the only question and the one more seriously argued by counsel on both sides, is, whether the said curative act of the Legislature is, for any reason, for the purposes intended, void.

3. The act of the Legislature of December 10, 1900, referred to herein as the curative act, the title to which we have hereinbefore set out, provides--following the caption--"that all grants, rights, privileges, and franchises, which the city council of Montgomery has heretofore granted, or attempted to grant (italics ours) to any railroad company, and which have been accepted and utilized for railroad purposes, be and the same are hereby legalized, ratified and confirmed." If the contract between the city and these corporations, of date June 20, 1896, made any grants, rights, privileges, and franchises, or attempted to make such, it is difficult to see why it was not referred to, and covered by, this curative act. The contract itself, made an exhibit to the bill, provides, "that said buildings, underpass and enclosures may be constructed as herein provided for, and that Moulton street and Lee street shall terminate at the points where the same now intersect with the property of the Mobile & Montgomery Railway Company, and that the parts of said streets extending beyond where the same so intersect said property, shall be discontinued and abolished as streets, or any part thereof," etc. This covered Lee street, in which the depot sought to be removed is located.

It will not, and cannot, be denied, that the Legislature had the power in the beginning, to allow the city council to do all that it attempted to do in its contract with these corporations.

In Mobile & Montgomery Railway Co. v. A. M. Railway Co., 116 Ala. 66, 23 So. 60, it is said: "It seems to be well settled, that the Legislature has the power, generally, to vacate a street in a city, and may delegate this power to the municipal authorities. Elliott on Roads & Streets, 661, 663, and authorities cited."

Mr. Dillon, on the same subject, says: "The Legislature has power to determine when and where streets shall be constructed, their width and mode of improvement, and its action thereon cannot be reviewed by the courts," and further, "And it may be here observed, that whatever the Legislature may authorize to be done is of course lawful, and of such acts, done pursuant to the authority given, it cannot be predicated that they are nuisances; if they were such without, they cease to be nuisances when having the sanction of a valid statute. As respects the public or municipalities, there is no limit upon the power of the Legislature as to the uses to which streets may be devoted." 2 Dillon on Munic. Corp. (3d Ed.) 656, 657.

What the Legislature may lawfully do in the first instance, it may ratify after the thing has been done, if no contract or property rights are involved. Lovejoy v. Beeson, 121 Ala. 605, 25 So. 599.

The act of 1900, as has been before stated, purported to validate, and did validate, "all grants, rights, privileges, and franchises, which the city council of Montgomery has heretofore granted (if valid) or attempted to grant (if invalid) to any railroad company, which have been accepted and utilized for railroad purposes." Conceding that the contract ordinance was invalid, it was certainly an attempt to confer the rights and privileges referred to in it. As was well said by counsel for defendants in argument: "After every refinement of reason has been exhausted, it will be impossible, it seems to us, for any one to read the act approved December 10, 1900, in connection with the contract ordinance approved June 20, 1896, and fail to see that the Legislature intended to ratify, legalize and confirm the right of appellees to occupy and use a portion of Lee street, for depot purposes. The learned judge in the court below took this view, and we think this court can reach no other conclusion.

4. But it is said and urged, that the Legislature cannot legalize a void act, and that the contract ordinance being void for lack of power in the municipality to enter into it, the act of the Legislature of 1900 is without force.

In 8 Cyc. 1024, supported apparently by a great many adjudged cases, it is said: "A statute is valid which ratifies the action...