Railway Co. v. Railway Co.

A. J. Miller and Pomerene & Pomerene, for defendant :

A county road taken into a municipal corporation by the annexation of contiguous territory, becomes subject to the control of the municipal authorities. Wabash Ry. Co. v. Defiance, 52 Ohio St. 262 [40 N. E. Rep. 89]; Lawrence Ry. Co. v. Mahoning Co. (Comrs.) 35 Ohio St. 1; Cincinnati & H. Elec. St. Ry. Co. v. Railway Co. 12 Circ. Dec. 113 (21 R. 391); affirmed by the Supreme Court without report. January 22, 1901, Railway Co. v. Railway Co. 64 Ohio St. 550 [61 N. E. Rep. 1147]; Cincinnati, L. & A. Elec. Ry. Co. v. Lohe, 68 Ohio St. 101; Sec. 2780-17 Rev. Stat.; Massillon Bridge Co. v. Iron Co. 59 Ohio St. 179 [52 N. E. Rep. 192]; Joyce, Electric Law Secs. 407, 408; Elliott, Roads & Streets 698.

The defendant company has the right to cross the tracks of the steam road, without compensation, the same as a pedestrian or owner of a private vehicle. Cincinnati & H. Elec. St. Ry. Co. v. Railway Co. 12 Circ. Dec. 113 (21 R. 391); affirmed by the Supreme Court, Railway Co. v. Railway Co. 64 Ohio St. 550 [61 N. E. Rep. 1147].

Notice by publication under Sec. 2502 Rev. Stat., or bid for the receipt of fares, is not required where the franchise granted is an extension of the route of an existing franchise. Sections 3437, 3439 Rev. Stat., not applicable; State v. Railway Co. 10 Circ. Dec. 418 (19 R. 79).

Sections 2501 to 2505 Rev. Stat. relate to railways within corporate limits; Secs. 3437 to 3443 Rev. Stat. relate to railways both within and without corporate limits; Secs. 2501 and 2502 Rev. Stat. relate to original routes and not extensions, while Sec. 2505 Rev. Stat. relates to extensions, and is subject to the provisions of Secs. 3437 to 3443 Rev. Stat.

The publication of notice, or the consent of the property owners is not a constitutional requirement, but only one of legislative policy. Hamilton, G. & C. Trac. Co. v. Parish, 67 Ohio St. 181 [65 N. E. Rep. 1011]; Near v. Railway Co. 4 Dec. 475 (29 Bull. 171).

Statute part unconstitutional and part constitutional will be sustained in part. Exchange Bank v. Hines, 3 Ohio St. 1; Treasurer v. Bank, 47 Ohio St. 503 [25 N. E. Rep. 697]; State v. Baker, 55 Ohio St. 1 [44 N. E. Rep. 516]; State v. Brewster, 39 Ohio St. 653; State v. Harvey, 4 Circ. Dec. 227 (8 R. 599); Keokuk Northern Line Packet Co. v. Keokuk (City), 95 U. S. 80 [24 L. Ed. 377]; Vial v. Penniman, 103 U. S. 459 [26 L. Ed. 602]; Town of Unity v. Burrage, 103 U. S. 447 [26 L. Ed. 405]; Reagan v. Loan & Trust Co. 154 U. S. 362 [14 Sup. Ct. Rep. 1047; 38 L. Ed. 1014]; Field v. Clark, 143 U. S. 649 [12 Sup. Ct. Rep. 495; 36 L. Ed. 295]; Sturges v. Crowninshield, 17 U. S. (4 Wheat.) 122 [4 L. Ed. 529].

Logan County.

Statutes must be interpreted, if possible, so as to make it consistent with the constitution and paramount law. Presser v. People, 116 U. S. 252 [6 Sup. Ct. Rep. 580; 29 L. Ed. 615]; Parsons v. Bedford, 28 U. S. (3 Pet.) 433 [7 L. Ed. 732].

Presumption always in favor of constitutionality. Endlich, Constr. of Stat. Secs. 178, 179 and 538; 6 Am. & Eng. Enc. Law (2 ed.) 1088; Cooley, Const. Lim. (6 ed.) 211.

Deference to usage and especially where harm results from disturbance. Endlich, Constr. of Stat. Sec. 527.

A court of equity has no jurisdiction to determine whether proposed grade crossing is a public menace; this question is vested exclusively in the city council. Section 2640 Rev. Stat.; Wabash Ry. Co. v. Defiance, 52 Ohio St. 262 [40 N. E. Rep. 89]; affirmed, Wabash Ry. Co. v. Defiance, 10 O. F. D. 480 [167 U. S. 88; 17 Sup. Ct. Rep. 748; 42 L. Ed. 87].

Not within the jurisdiction of any court, in the absence of fraud in the council, to review its decision. Sims v. Railway Co. 37 Ohio St. 556; Cincinnati v. Railway Co. 1 Dec. 591 (31 Bull. 308).

MOONEY, J.

It will be convenient to consider the asserted grounds for an injunction in this case in the order heretofore stated.

66

I. 'More than fifty years" before the commencement of this action, general power was conferred upon cities and villages to lay off and establish streets. 50 O. L. 223. This power has ever since existed. Land held by a railroad corporation, whether acquired by it by purchase or appropriation, which is not employed in nor needed for the proper exercise of its corporate franchises, can be taken for a public use, the same as the lands of any other owner. Railway Co. v. Belle Centre (Vil.), 48 Ohio St. 273 [27 N. E. Rep. 464].

Under the general authority to establish streets, a city or village may establish streets across lands which are subject to the franchise of a railroad corporation, provided the second use for which the land is so taken is, in the circumstances of the particular case, reasonably consistent with the former use. The land may, in such case, be subjected to the additional use, but the former use may not thereby be wholly defeated. Little Miami Ry. Co. v. Dayton, 23 Ohio St. 510.

"By the extension of the street, the land is subjected to an additional use, but the former use is not superseded; and, in so far as it is interfered with, the question becomes one simply of compensation." Little Miami Ry. Co. v. Dayton, supra, p. 519.

Columbus avenue has been established as a public street across lands owned by plaintiff, some of which land then was and some was not used

Railway Co. v. Railway Co.

or needed for railroad purposes. Plaintiff's title in the land not so used or needed was absolutely extinguished by establishing the street. In the proceeding to establish the street, the consistency of the use of the lands occupied and used by the tracks for both railroad and ordinary street purposes was determined, and any interference with the railroad company's use of the land for railroad purposes, by reason of the use of the land for ordinary street purposes being "simply a question of compensation must be deemed to have been adjusted in that proceeding. This compensation, while including all use of the land for street purposes, would not cover new servitudes upon the land taken. The construction of a line of street railway along a street is an ordinary street use and is not a new servitude entitling the owner of abutting property, or of the fee of the street subject to the street easement, to further compensation.

"So far as the carrying of passengers by this mode is concerned, it differs in nothing from the exercise of the common right of carrying them by coaches and omnibuses; and everything needing a grant, or the further authority of law, is the right to place and maintain in the highway, the necessary conveniences for this new description of carriages." Cincinnati & S. G. Ave St. Ry. Co. v. Cumminsville, 14 Ohio St. 523, 545.

Moreover, plaintiff expressly states in its petition that its asserted title and ownership is subject to the "right and use of persons, animals and vehicles traveling upon or passing along the said avenue as a public street and highway." A street car, propelled by electricity is, within this admission, a vehicle. Cincinnati St. Ry. Co. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276]. See generally as a full and correct statement of the law of this branch of the case, Cincinnati & H. Elec. St. Ry. Co. v. Railway Co. 12 Circ. Dec. 113 (21 R. 391); affirmed, no report, Railway Co. v. Railway Co. 64 Ohio St. 550 [61 N. E. Rep. 1147]. Plaintiff, then, has no such ownership of, or title to, the lands in question as requires defendant to proceed by appropriation, or otherwise acquire the right from plaintiff as a condition precedent to the construction of the proposed line of street railway.

II. The ordinance of October 21, 1902, depends for its validity upon Sec. 2505 Rev. Stat. This section refers to Secs. 3437 to 3443, Rev. Stat., inclusive, and requires proceedings thereunder. Sections 3438 and 3439 Rev. Stat. were last amended and in the present form enacted April 18, 1883 (80 O. L. 173). It is asserted by plaintiff that the act is unconstitutionl and void, and the ordinance in question is therefore invalid. By Sec. 26, Art. 2, of the constitution "all laws of a general nature are required to have a uniform operation throughout the state."

Logan County.

"Whenever a law of a general nature having a uniform operation throughout the state, can be made fully to cover and provide for any given subject matter, the legislation, as to such subject matter, must be by general laws, and local or special laws cannot be constitutionally enacted as to such subject matter." State v. Spellmire, 67 Ohio St. 77 [65 N. E. Rep. 619].

The grant of street railway franchises by municipalities or other public agencies, and the establishment of street railway routes by them, can be covered and provided for by general laws. The possibility is demonstrated by the fact that it has been done. It is provided in the act of April 18, 1883, "that this act shall not apply to any county containing a city of the second grade of the second class." This proviso excepts Montgomery county from the operation of the amended sections. If the proviso is to be taken as an integral part of the act, there can be, we think, no doubt that this enactment of a general nature is not valid law, because it does not have uniform operation throughout the state. Now the proviso equally with the other terms of the act is expressive of the legislative will. On the one hand the legislature wills and declares that the existing statutes shall be altered and amended so far as eighty-seven counties of the state are concerned, and on the other hand it wills and declares that the existing statutes shall remain in force unaltered and unamended so far as Montgomery county is concerned. The act voted upon was intended no less to accomplish one purpose than the other, and both purposes were intended to be carried into effect by the act. The constitution prevents not only the accomplishment of the one purpose, but also of the other and of both together.

In State v. Buckley, 60 Ohio St. 273, it was held:

"1. When an act of the general assembly, required to have uniform operation throughout the state, expressly excepts from its operation one or more cities or counties, such act by reason of such exception is unconstitutional and void.

"2. Such an exception cannot be held invalid and thereby extend the act over the excepted territory, because in such case the general assembly never enacted the statute in such territory, and the court has no power to enact it therein."

What is true of Sec. 1 of the act referred to is equally true of Sec. 2 thereof the repealing section. The legislature never declared its intention to repeal said sections as to the whole state, but only as to certain counties (less than all), leaving the former statutes in force in one county.

To permit such partial repeal would indirectly accomplish the very purpose which the constitutional provisions were designated absolutely

Railway Co. v. Railway Co.

to prevent. The repealing section is therefore void, also. The general rule that "where a repeal of prior laws is inserted in an act in order to secure the unobstructed operation of such act and it is held unconstitutional, the incidental provision of prior laws will fall with it," also sustains the invalidity of the repealing section. State v. Heffner, 59 Ohio St. 368 [52 N. E. Rep. 785]; State v. Buckley, 60 Ohio St. 273 [54 N. E. Rep. 272]; State v. Hall, 67 Ohio St. 303 [65 N. E. Rep. 1019].

The act of April 18, 1883 (80 O. L. 173), is void, and because of its invalidity Secs. 3438 and 3439, as they appear in the Revised Statutes of 1880, are unamended and are still in force. Section 2502 Rev. Stat., as sought to be amended by said act, was subsequently amended to be free from any constitutional infirmity. The subsequent amendment of the section (88 O. L. 389) is invalid for reasons heretofore stated. This state of the law leads to the next ground for relief urged by plaintiff.

III. Was notice as provided by Sec. 2502 Rev. Stat. necessary as a condition precedent to the passage of the ordinance of October 21, 1902? No such notice was given, and since plaintiff will suffer some inconvenience from the construction as well as operation of the street railway, plaintiff is a proper party and in this action has the right to raise the question.

To answer the question will require a brief review of the street railway legislation of this state. Prior to March 3, 1860, all street railways. in this state were constructed either by individuals or by corporations organized under special legislative charters passed before the present constitution was adopted, or by corporations organized under the general corporation act passed May 1, 1852. No express power or authority was conferred upon municipalities to grant the use of the streets to any such company or individual prior to March 3, 1860, and the right of such use and occupancy if derived from municipal authority, must have been granted under the general authority to control the streets. On the date last mentioned there was passed "An act relating to cities of the first class having a population exceeding 80,000 inhabitants." 57 O. L. 16. In Secs. 15 and 16 of this act, power to grant the use of the streets for street railway purposes and to prescribe by ordinance the terms and conditions of such occupancy is given with the requirement of "consents," notice of applications, and bids, and it is prudently provided that "all reductions of the rates of fare shall inure to the benefit of the passengers carried."

April 10, 1861 (58 O. L. 66), an act entitled "An act to provide for and regulate street railroad companies" was passed. Section 5 of