The City of Emporia v. The Atchison

Decision Date10 April 1915
Docket Number19,062
Citation147 P. 1095,94 Kan. 718
CourtKansas Supreme Court
PartiesTHE CITY OF EMPORIA, Plaintiff, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Defendant

Decided. January, 1915.

Original proceeding in mandamus.

SYLLABUS

SYLLABUS BY THE COURT.

1. CITY ORDINANCE--Requiring Undergrade Street Crossing--Subject to Review for Unreasonableness. An ordinance of a city of the second class enacted pursuant to section 1 of chapter 106 of the Laws 1913, providing that the mayor and commissioners shall have power to compel railway companies to construct such viaducts over and tunnels under streets or tracks as the mayor and commissioners may deem and declare to be necessary for the safety and convenience of the public, is subject to review by the courts for unreasonableness, and if found to be unreasonable the courts may decline to compel compliance with its terms by writ of mandamus.

2. SAME--Railroad Company Not Compelled to Obey Unreasonable Ordinance Requiring a Subway Under Its Tracks. A city ordinance relating to the construction of additional railway tracks and switches across a street, accepted by the railway company and providing that the railway company shall restore the street to such a condition as shall not obstruct the public use and keep the crossing in such condition as the city may direct, does not bind the railway company to obey an unreasonable ordinance requiring it to carry the street under its tracks by means of a subway.

3. SAME--Findings of Fact by Commissioner--Show Ordinance to be Unreasonable. Findings of fact returned by a commissioner appointed for the purpose considered, and held that an ordinance of the plaintiff requiring the defendant to construct a subway for a street under its tracks is unreasonable and should not be enforced by writ of mandamus.

Edwin S. Waterbury, and Gilbert H. Frith, both of Emporia, for the plaintiff; J. Harvey Frith, of Emporia, of counsel.

William R. Smith, of Topeka, William Osmond, of Great Bend, and W. L Huggins, of Emporia, for the defendant.

Burch J. Johnston C. J. dissenting

OPINION

BURCH, J.:

The action is one of mandamus to compel the defendant to construct an undergrade street crossing. The cause was referred to a commissioner who was directed to return findings of fact and conclusions of law. His report is appended hereto.

The ultimate conclusion of fact, that the action of the city in ordering the subway was not without support in reason and consequently was a valid exercise of legislative power, is advisory only. The conclusion of law depends entirely upon the character of the ultimate conclusion of fact. The conclusion of fact having been challenged by the defendant, the court is required to exercise its own judgment and derive its own inference from the specific facts found in detail.

In cases of this character it is not enough that there be a scintilla of reason for the enactment of the ordinance which is assailed, which the report as a whole shows was all the support the commissioner was able to find for the ordinance under consideration. The question is whether or not, considering the entire situation and all the circumstances, the action of the city so far fails to measure up to the fair and just and reasonable as to make it clear that such action is arbitrary, capricious, unreasonable, and oppressive. ( City of Emporia v. Railway Co., 88 Kan. 611, 129 P. 161.) If the change of grade of both Congress street and State street by the ordinance of 1912 had been followed by a single ordinance requiring subways on both streets, it could not be doubted that such action would have been manifestly unreasonable. A subway upon one or the other of these streets could be justified, but no occasion existed, suggested by the progress of the city's development, past or prospective, or by the public safety and convenience, which suddenly demanded the construction of two subways on opposite sides of the same narrow block, costing between forty and fifty thousand dollars. The city can not by indirection do that which would have been clearly unreasonable if undertaken directly. Nothing would be gained by debating the facts further than the commissioner has done, and the court concludes that the ordinance is unreasonable and void.

The city contends that it has the right to stand upon the naked statutory power to require subways, and cites in support of its contention those decisions which hold that when particular municipal power is conferred by statute the legislature has settled the question of the reasonableness of ordinances enacted pursuant to the grant. The subject is alluded to in section 600 of Dillon on Municipal Corporations, which reads as follows:

"Where the legislature, in terms, confers upon a municipal corporation the power to pass ordinances of a specified and defined character, if the power thus delegated be not in conflict with the Constitution, an ordinance passed pursuant thereto cannot be impeached as invalid because it would have been regarded as unreasonable if it had been passed under the incidental power of the corporation, or under a grant of power general in its nature. In other words, what the legislature distinctly says may be done cannot be set aside by the courts because they may deem it to be unreasonable or against sound policy. But where the power to legislate on a given subject is conferred, and the mode of its exercise is not prescribed, then the ordinance passed in pursuance thereof must be a reasonable exercise of the power, or it will be pronounced invalid." (Vol. II, 5th ed., p. 943.)

Like all attempts to draw a circle which shall be the unit of measurement of angular facts, the text quoted is only approximately successful and has sometimes been applied without discriminating care. Statutes of the first class may be illustrated by those which authorize cities to impose penalties for the violation of ordinances relating to specified subjects in a sum, for example, not less than five dollars and not more than five hundred dollars. An ordinance imposing fines anywhere within the statutory limit must be regarded as reasonable. A statute which authorizes cities to regulate the speed of trains within prescribed rates of speed belongs to the same class. The reasonableness of an ordinance which does not transgress the statutory limits can not be questioned because the legislature has defined its precise character. Where a statute forming the charter of a city expressly provides that the city may compel any railroad to erect gates at any and all street crossings, the reasonableness of an ordinance requiring gates at particular crossings can not be investigated by the courts because the legislature has established the definite policy of gates at all crossings without leaving the determination of the question of what the public safety and convenience demand to the city. ( Chesapeake & O. Ry. Co. v. City of Maysville, 24 Ky. L. Rep. 615, 69 S.W. 728.) These illustrations are sufficient to indicate the true meaning and proper application of the rule.

The statute relating to viaducts and subways at street crossings in cities of the second class is of the kind referred to in the latter part of the text quoted. The particular provision is found in a general grant of power to regulate the crossing of railway and street-railway tracks, and declares that the mayor and council or mayor and commissioners shall have power to compel railway companies owning or operating railroads or street railroads to erect, keep in repair, and reconstruct such viaducts over or tunnels under streets or tracks as may be deemed and declared by the mayor and council or mayor and commissioners to be necessary for the safety or convenience of the public. (Laws 1913, ch. 106, § 1.) The legislature did not determine that the public welfare requires the construction of viaducts or subways at every railroad or street-railway crossing which may be designated by city ordinance. If it had done so, the instance of the branch line of railroad used as an illustration by the commissioner, to say nothing of the plight of street railways generally, might raise the question of the constitutionality of the statute. Instead of this, as in most statutes specifying matters upon which cities may legislate, the subject of the necessity for viaducts and subways as means for promoting public safety and convenience was committed entirely to the governing body of the city for such legislative action as its sound judgment and wise discretion may suggest. Should a city upon due consideration conclude that the public welfare requires the construction of a particular viaduct or subway, procedural methods are prescribed for obtaining the desired ends. But the propriety of a viaduct or of a subway as a means of satisfying the public need at some particular crossing is not settled in advance by the legislature but must be determined by the city for itself in the light of all the facts which should appeal to fair and candid minds. As the commissioner points out, the statute is merely declaratory of a power which existed before the statute was enacted--the same power which without the statute sustained the ordinance of 1912 requiring the building of the first subway.

As this court said in the case of Swift v. City of Topeka, 43 Kan. 671, 23 P. 1075, the tyranny of the American system of government very largely consists in the action of municipal authorities, and the judgment and discretion contemplated by the statute are that lawful judgment and that lawful discretion which must always be restrained within the boundaries of reason. (Anderson v. City of Wellington, 40 Kan. 173, 19 P. 719; Crawford v. City of Topeka, 51 Kan. 756, 33 P. 476; Kansas City v McDonald, 60...

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