Union Pac. R. Co. v. Public Service Commission

• Decision Date: 26 February 1943
• Docket Number: 6556
• Citation: 103 Utah 186,134 P.2d 469
• Court: Utah Supreme Court
• Parties: UNION PAC. R. CO. et al. v. PUBLIC SERVICE COMMISSION

134 P.2d 469

103 Utah 186

UNION PAC. R. CO. et al. v. PUBLIC SERVICE COMMISSION

No. 6556

Supreme Court of Utah

February 26, 1943

Original proceeding by the Union Pacific Railroad Company and others for a writ of prohibition to restrain the Public Service Commission from proceeding with an investigation of plaintiff's right to remove a track and trolley poles maintained by them along a certain city street.

Alternative writ made permanent.

George H. Smith, Robert B. Porter, W. Hal Farr, and Judd, Ray Quinney & Nebeker, all of Salt Lake City, and George S Barker, of Ogden, for plaintiffs.

J. A. Howell, of Ogden, amicus curiae.

Grover A. Giles, Atty. Gen., Calvin Rampton, Deputy Atty. Gen., and George H. Lowe and Ira A. Huggins, both of Ogden, for defendant.

BAKER District Judge. LARSON, McDONOUGH, and MOFFAT, JJ., WOLFE, Chief Justice, concurring. PRATT, J., on leave of absence.

OPINION

BAKER, District Judge.

On the 7th day of October, 1942, this court upon joint application of the plaintiffs and in exercise of its original jurisdiction issued an alternative writ of prohibition directed to the defendant, Public Service Commission of the State of Utah, hereinafter called the Commission, ordering said defendant to show cause why it should not be restrained and prohibited from proceeding with an investigation initiated by it of the right of the plaintiff railroad companies to remove a certain railway track and trolley poles maintained and operated by them along Second Street within the corporate limits of Ogden City, Utah, in compliance with an ordinance of said Ogden City requiring them to do so. On the day appointed in the temporary writ the Commission appeared by general demurrer to the petition of plaintiffs for an alternative writ of prohibition and the affidavit in support thereof, and attacked them on the ground that they do not state facts sufficient to justify the relief for which they pray.

At the same time the defendant also filed a motion supported by affidavit to quash the temporary writ and dismiss the action upon the grounds, among others, that the ordinance of Ogden City, above mentioned, is invalid; that the plaintiffs have a plain, speedy and adequate remedy at law by means of an action to test the validity of said ordinance, and that in fact such an action has been commenced. However, for reasons which will appear in the course of this decision, we regard the issue tendered by the demurrer as determinative of the action, and will proceed accordingly.

The facts as they appear from plaintiffs' petition and supporting affidavit are substantially as follows: On May 28th, 1906, the city council of Ogden City by an ordinance duly passed and adopted, hereinafter referred to as the franchise ordinance, granted to the Oregon Short Line Railroad Company, a corporation, its successors and assigns, the right and privilege to construct, maintain and operate a single railway track on the south side of Second Street, beginning at a point where said Second Street then intersected the line of said railroad company and extending thence east to a point at or west of the west side of Washington Avenue, all within the corporate limits of said Ogden City; that pursuant to said franchise ordinance the Oregon Short Line Railroad Company constructed a single railway track of a length of 1.5 miles along the route as authorized by said ordinance; that said railway track was maintained by said Oregon Short Line Railroad Company until January 1st, 1936, that since said date the plaintiff, Union Pacific Railroad Company, has maintained, and still does maintain, said track as lessee and successor in interest of said Oregon Short Line Railroad Company; that there are no stations upon said track, and that no trains have ever been operated upon said track upon any schedule.

That said franchise ordinance, which is set out in full as an exhibit attached to plaintiffs' application, contained among others, the following provisions:

"Section 3. That the said track shall be laid so as to conform to the grade of said street at this time, and said Oregon Short Line Railroad Company, its successors and assigns, shall alter the same so as to conform to such change of grade as the City Council may from time to time make."

"Section 8. The city reserves the right to make further regulations relating to the use of said track, engines and cars thereon, and the speed of such engines and cars."

"Section 9. This grant shall expire and be terminated at the expiration of fifty (50) years from this date, and on breach of any of the covenants herein set out."

It further appears from said affidavit that within the past two years the United States has constructed a large Army General Supply Depot at the extreme westerly end of said Second Street in Ogden City, which Depot employs a large number of persons, and that there is also being constructed on said Second Street east of Washington Avenue approximately 500 homes, primarily for workers at said Supply Depot, and that in going from such homes to their work such workers will necessarily traverse said Second Street; that because of the increased travel over Second Street to said Supply Depot the government of the United States requested the city of Ogden to widen said Second Street, including the part thereof along which said track of the Plaintiff Union Pacific Railroad Company is maintained as aforesaid, so as to make a four-lane highway and pave the same.

That thereafter arrangements were made by Ogden City in cooperation with the State Road Commission to widen and improve Second Street in accordance with said request, and an appropriation was secured therefor from the Bureau of Public Roads, and that such appropriation did not include sufficient funds to shift plaintiff Union Pacific Railroad Company's said railtrack, nor to pave between the rails of said track and for two feet on each side thereof in accordance with Sec. 15-7-28, R. S. U. 1933, nor to remove the trolley poles of the plaintiff Utah-Idaho Central Railroad Corporation, which said corporation is permitted to operate on said track by means of electrical cars and engines; that the plaintiff Union Pacific Railroad Company was then advised that the latter mentioned items were to be done at the expense of said plaintiff in accordance with the terms of said franchise from Ogden City.

That said plaintiff thereupon caused an investigation to be made of the cost of shifting its tracks and paving between and along them as aforesaid, as shown by the proposed plans of reconstruction of said street, and determined that such cost would be prohibitive, and not justified by the revenues from the operation of trains over said track; that thereafter several conferences were had with Ogden City and the State Road Commission with the view of eliminating certain items of such cost, but that such conferences were unavailing; and that said plaintiff was advised that it must proceed to comply with said plans without delay and at its own cost.

It further appears that on September 14th, 1942, the Board of Commissioners of Ogden City demanded of said plaintiff, in writing in pursuance particularly of Section 15-7-28, Revised Statutes of Utah, 1933, and of Section 3 of said franchise ordinance (hereinabove quoted) that it do the following things in connection with its tracks on said Second Street:

(a) Change or shift the location of the tracks and raise the tracks so as to conform to the proper grade;

(b) Pave all the space between the different rails and tracks and also a space two feet wide outside of the outer rails of the outside tracks, including all side tracks, crossings and turn-outs used by your Company, (the said Union Pacific Railroad Company);

(c) Move trolley poles and wire.

Said plaintiff was further notified by said writing that it was given five days within which to commence work upon the aforesaid changes and improvements required to be done by it, or to notify the Board of Commissioners of Ogden City of its intention to do so, and that upon failure to so comply the said Board of Commissioners would take action to terminate and cancel said franchise;

That said plaintiff failed to comply with said demand, and that on the 21st day of September, 1942, the Board of Commissioners of Ogden City passed and adopted an ordinance, designated as Ordinance No. 151, which by its terms repealed the aforesaid franchise ordinance of May 28, 1906, and which purported to cancel and annul the rights and privileges conferred thereby. Said ordinance No. 151 recited, among other things, as reasons for repeal of the franchise, facts showing the necessity of widening and improving said Second Street, substantially as hereinbefore set out; that the contemplated improvement of Second Street was necessary in the public interest and welfare; and that to permit said track to remain upon Second Street without complying with the demand of Ogden City would create a hazard to traffic over said street and to the owners of property abutting said track. It then recited the demand made upon the plaintiff under date of September 14, 1942, as above set out, and the failure of said plaintiff to comply with such demand, and particularly with Section 3, of the franchise ordinance. In addition to provisions for the repeal of said franchise said ordinance No. 151 also ordered as follows:

"Section 2. That the Oregon Short Line Railroad Company, its successors and assigns, is hereby ordered to remove said track and poles which it uses in the operation of its trains, engines and cars on said Second Street in Ogden City, Utah."

It further appears that immediately upon being notified that said ordinance was in effect, the plaintiff, Union Pacific Railroad...