Wabash Railroad v. Defiance

after stating the case, delivered the opinion of the court.

Plaintiff’s right to an injunction was urged in the state courts upon- several grounds, but the only questions presented to us are whether the ordinance of December 20, 1887, permitting the railway to construct the bridges and their approaches, constituted a contract between the railway company' and the city for the perpetual maintenance of such bridges; and whether the subsequent ordinances of February 7, 1893, impaired the obligation of such • contract, or deprived the plaintiff of its property, or the use and enjoyment thereof, without compensation or without due process of law.

In 1876, the village, wishing a sidewalk or foot bridge constructed over the track of the company, entered into an agreement with the. company, embodied in a village ordinance, by which the latter gave permission to the village to erect and maintain a foot bridge across its track, which the village agreed to keep and maintain forever in safe condition and good repair at its own cost. It was further agreed that the maintenance of such foot bridge or sidewalk should be subject to the inspection and approval of the railroad company’s engineer, and should be built, renewed and repaired from time to time as directed by such engineer, the village agreeing to be responsible for its safe repair and maintenance.

About the yea,r 1880, the village was organized into a city, and in the year 1887, the railroad company, in order to prevent accidents, decided to elevate the bridges, and for that purpose applied to the city council .for authority to do so. This authority was given by the ordinance of December 20, 1887.

The language of this ordinance is rather that of a license than that of a contract: the railway is authorized to erect new bridges of a certain construction, provided that the company shall also build sufficient approaches and grade to each of said bridges, and keep them in good repair. The city itself

If it were possible that a city could make such a contract at all, it could only be done by express authority of the legislature and in language that would admit of no other interpretation. It is claimed that the construction of the sidewalks by the railroad company was a consideration, since it had been the duty of the city up to that time to keep them in repair; but it surely could not be a' consideration for the perpetual maintenance of the bridges. If it were a consideration for anything it would simply be for the permission given to the railway to build the bridges — a permission obtained upon a special application of the railway company. Properly construed, this ordinance was simply a license to the company to build these bridges, and to continue them until the city council should conclude that it was for the public interest to so change the grade of the street as to make it a level crossing.

That the city, in the absence of a statute, permitting it, would have no authority to enter into su'ch a contract with the railroad company is admitted; but it is claimed that such authority is found in section 3283 of the Revised Statutes of Ohio, which, so far as the same is material, is as follows: “ If it be necessary in the location of any part of a railroad to

Reading these two sections together, it is open to doubt whether section 3283 is not confined to cases where the railroad runs along and upon the street, road or alley, in which case some kind of contract or agreement with the municipality would seem to be almost necessary for the mutual accommodation of the railroad and the public, who desire to retain the use of the street for ordinary travel. The matter of crossing the street, however, is treated by section 3284 as one of the necessary incidents of railroad construction; and all that is required is that the company, after having made the crossing, shall replace the road in such condition as not to impair its usefulness. This appears to be the construction put upon these sections by the Ohio courts. Lawrence Railroad Co. v. Cobb, 35 Ohio St. 94 ; Lawrence Railroad Co. v. Williams, 35 Ohio St. 168 ; Little Miami Railroad v. Commissioners, 31 Ohio St. 338 ; Pittsburgh, Fort Wayne &c. Railway Co. v. Maurer, 21 Ohio St. 421 ; State v. Dayton &c. Railroad, 36 Ohio St. 434 .

But conceding, for the purposes of this case, all that is claimed by the railroad company from its construction of section 3283, the fact still remains that the ordinance of December 20,188Y, was not adopted in pursuance of the power to contract, but in pursuance of the legislative power vested in the city by section 2640 of the Revised Statutes, which" enacts: “ That the council shall have the care, supervision and control of all public .highways, streets, avenues, alleys, sidewalks, public grounds and bridges within the corporation, and shall cause

We are also pointed to section 2 of the ordinance as indicating that a Contract was within the contemplation of the parties. This section is as follows :

“ Sec. 2. The entering upon the work of constructing said bridges by said company shall be taken as an acceptance of the terms thereof by said company, and shall be regarded as superseding any contract or agreement heretofore existing between said company and said city as to either of said bridges.”

This section, however, does not change that which, in its nature, is a license into a contract that these bridges shall remain for any particular length of time. The entering upon the work of construction might well estop the railroad company from objecting to the requirement that the bridge should be constructed in the manner specified in the ordinance; and might also estop the city from making any farther or different requirements in that connection; and to this extent there may be said to have been a contract; but when it is claimed that the city thereby agreed that the bridges so constructed should remain forever, and that it thereby waived its rights to change the grade or the method of crossing, we are importing into the contract by construction something which is not found there; which the parties have not agreed to, and which, if the city had any power at all to stipulate, should have been expressed in the clearest language.

In the case of the Philadelphia, Wilmington &c. Railroad's Appeal, 121 Penn. St. 44 , relied upon by the plaintiff in error, the legislature conferred upon the mayor and the council of the city of Chester express authority to grant to> certain railroad companies “ the use and occupation of the streets, lanes, courts and alleys lying within three hundred feet of the said railroads, . . . to be used and occupied by the said railroad companies, respectively, only so long as the said streets . . . shall remain open to public use and travel,” etc. Pursuant to this authority, and to a city ordinance, a formal agreement was entered into between the city and the railroad company that a certain street should be open to public use and travel; its

There is no necessary conflict between that case and the position here assumed, as the act of the legislature gave the city express permission to grant to the companies the use and occupation of its streets, “ so long as the said streets . . . shall remain open to public use and travel,” and declared that such grant should be “ as valid and effectual to transfer the rights and privileges therein contracted for to the said railroad companies, or any of them, . . . as if made between individuals.” If the court, however, is to be considered as holding that an agreement or license to construct bridges, which is silent as to time, should be construed as an agreement that they are to remain in perpetuity, we should find ourselves confronted with too many authorities to the contrary to accept it as a sound exposition of the law.

Indeed, the general principle that the legislative power of a city may control and improve its streets, and that such power, when duly exercised by ordinances, will override any license previously given by which the control of a certain street has been surrendered to any individual or corporation, is so well established, both by the cases in this court and in the courts of the several States, that a reference to the leading authorities upon the subject is sufficient. Indeed, the right of a city to improve its streets by regrading Or Other

In the early case of Goszler v. Georgetown, 6 Wheat. 593 , it was held that the power given to the corporation to grade the streets of the city was a continuing power, and the corporation might from time to time alter the grade so made. It was said by Mr. Chief Justice Marshall “ that the power of graduating and levelling the streets ought not to be capriciously exercised. Like all power, it is susceptible of abuse. But it is trusted to the inhabitants themselves who elect the corporate body, and who may therefore be expected to consult the interests of the town. . . . There may be circumstances to produce a general desire to vary the graduation, to bring the streets more nearly on a level, than was contemplated in the first ordinance ; and if this may occur, we cannot say that the legislature could not intend to give this power of varying the graduation when the words they employ are adapted to the giving of it.”

In Transportation Co. v. Chicago, 99 U. S. 635 , which was an action to recover damages sustained by the construction of a tunnel under the Chicago River along the line of La Salle street, it was held that" as the city was authorized by law to improve the street by building a bridge over or a tunnel under the river where it crossed the street, it incurred no liability for the damages unavoidably caused to adjoining property. by obstructing the street or the river, unless such liability were imposed by statute; that if the fee of the street be in the adjoining lot owners, the State has an easement to adapt it to easy and safe passage over its entire length' and breadth; and that when making or improving the streets, in the exercise of an authority conferred by statute, the city is the agent of the State, and if it acts within that authority, and with due care, dispatch and skill, it is not at common law answerable for consequential damages.

In the recent case of Baltimore v. Baltimore Trust & Guarantee Co., 166 U. S. 673 , it was held that, where the

In Presbyterian Church v. City of New York, 5 Cowen, 538, the corporation of the city had conveyed lands for the purposes of a church and cemetery, with a covenant for quiet enjoyment, and afterwards, pursuant to a power granted by the legislature, passed a by-law prohibiting the use of these lands as a cemetery. It was held that a corporation could not by contract abridge,its legislative power, and that this was not a breach of the covenant which entitled -the party to damages, but was a repeal of the covenant. See also Coates v. New York, 7 Cowen, 585.

The case of N. Y. & N. E. Railroad v. Bristol, 151 U. S. 556 , has an important bearing upon the point in issue here. In that case an act of the legislature of Connecticut; abolishing grade crossings as a menace to public safety, was held to be an exercise of the police power of the State and applicable to the charter of a railroad corporation, which was subject to alteration and amendment by the legislature. The Supreme Court of Conneeticut held that the statute operated as an amendment to the charters of the railroad companies affected by it; that as grade crossings are in the nature of nuisances, the legislature had a right to cause them to be abated, and to require either party to pay the whole or any portion of the expense ; that it was the settled policy of the State to abolish grade crossings as rapidly as could be reasonably done, and that all general laws and police regulations affecting corporations were binding upon them without their assent. This

While municipalities, when authorized so to do, doubtless have the power to make certain contracts with respect to the use of their- streets, which are obligatory upon them, New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650 ; New Orleans Water Works Co. v. Rivers, 115 U. S. 674 ; City Railway Co. v. Citizens' Street Railroad Co., 166 U. S. 557 ; Indianapolis v. Indianapolis Gas Light Co., 66 Indiana, 396; Indianapolis v. Consumers' Co., 140 Indiana, 107, the general rule to be extracted from the authorities is that the legislative power vested in municipal bodies is something which cannot be bartered away in such manner as to disable them'from the performance of their public functions. These bodies exercise only such powers as are delegated to them by the sovereign legislative body of the State. - Such powers, however, are personal to the municipalities themselves, and, being conferred for the benefit of the whole people, in the absence of authority to that effect, cannot be bestowed by contract or otherwise upon individuals or corporations in such manner as to be beyond revocation. Whatever construction be given to the ordinance of December 20, 1887, it cannot be held to stand in the way of a power to make .such changes as the growth of population may seem to require.

In the Matter of Opening First Street, 66 Michigan, 42, it was held that the laying out and opening of streets by the

But aside from the general power of municipalities to care for and improve their streets, an express- power is given by section 2640 of the Revised Statutes of Ohio to the common council to care for, supervise and control “all public highways, streets, avenues, alleys, sidewalks, public grounds and bridges within the corporation,” and “ to keep the same open and' in repair and free from nuisance.” Under a similar power granted by Congress to the corporation of the city of Washington it was held by this court, in Smith v. Washington, 20 How. 135 , that it included the power to alter, grade or change the level of the land on which the streets by the plan of the city were laid out. It was said that although “the plaintiff may have suffered inconvenience and been put to expense in consequence of such action, yet, as the act of the defendants is not unlawful or wrongful, they are not bound to make any recompense. It is what the law styles damnum absque im,juria._ Private interests must yield to public accommodation ; one cannot build his house on the top of a hill in the midst of a city and require the grade of the street to confórm to his convenience at the expense of that of the public.” To the same effect are Callender v. Marsh, 1 Pick. 418 ; Green v. Reading, 9 Watts, 382 ; O'Connor v. Pittsburg, 18 Penn. St. 187 .

If the duty required by the statutes in those cases can only be adequately performed by removing obstructions in or changing the grade of streets, this must be regarded-as-fairly incidental to the power conferred, and individual proprietors ate bound to acquiesce in the measure thus taken for the general good of the public. The Ohio, courts seem also to

The ordinances of' February 7, 1893, were not beyond the powers of the common council with respect to the improvement of its streets. While in 1887, overhead bridges might have seemed a better and safer plan of crossing the railway, than crossing at grade, the subsequent growth of the city may have demanded a different policy in 1893. It is hardly possible that the approaches required to reach an overhead bridge, which was some ten or twelve feet above the géneral level of the ground, should not have affected, to a certain extent, -the value of the adjoining property as city lots; but whether this were so or not, it was purely within the discretion of the common council to determine whether the public exigencies required that the grade of the street be so changed as to cross the railroad at a level. Dunham v. Hyde Park, 75 Illinois, 371. While the modern policy of railway engineering usually tends to the abolition of grade, crossings, there is no hard and fast rule upon the subject, and it may.well be that the exigencies of a certain street or locality may demand that travel shall descend to the level of the railway rather than ascend to a bridge built over the track. But however this may be, we are not at liberty to inquire whether the discretion vested in the common council of determining this question was wisely exercised; or what the motives were for making the change; or whether the crossing so improved was burdensome to the railroad company; or- made unsafe to persons crossing the track. These were considerations which might properly be urged upon the common council., as arguments against the proposed change; but it is beyond the province of the courts either to praise the wisdom or criticise the unwisdom of such action. The question before us is simply whether the council had the power to make the change, and of this we have no doubt.

Upon the whole, we think it clear that the common council acted within its powers in changing the grade of the street in

Affirmed.