People ex rel. Dyett v. McMurray

Mr. Justice Goddard delivered the opinion of the court. [280] The controlling question presented, is, whether or not mandamus is the appropriate remedy, or can be invoked to obtain the relief sought. Counsel for appellant strenuousty insist that it is, since the city council, by clause 87, section 20 of the city charter, Sess. Laws, 1893, is clothed with the power to provide for the removal of all obstructions from, and to prevent all encroachments upon, the streets within the city; that the power being granted for the public benefit, is not discretionary, and its exercise becomes a duty which the city is bound to perform. In support of their position they rely upon Borough of Uniontown v. Commonwealth ex rel. Veech, 34 Pa. St. 293, Trustees, etc., v. Kinner, 13 Bush, 334, People ex rel. Burke v. Mayor, etc., 63 Ill. 207, Village of Glencoe v. People, 78 Ill. 383, and Brokaw v. Comrs. of Highways, 130 Ill. 482. From an examination of these cases, it will be seen that the duty there enforced was that of repairing the streets, or of removing a character of obstructions that the city council, under no circumstances, could authorize or permit. In these respects, the facts in those cases were essentially different from those in the case at bar. By clause 44 of the section of the charter above referred to, the city council is authorized “ to permit and regulate the running of railway cars propelled by steam, cable, electricity or other motive power, the laying down of tracks for the same ;• * * * and to compel them to remove their tracks so as to avoid unnecessary interference with the use of the streets by the public or by the owners of the abutting property.” This court in several cases has recognized and affirmed such right. City of Denver v. Bayer, 7 Colo. 113; Denver Circle Ry. Co. v. Nestor, 10 Colo. 403; Denver & S. F. Ry. Co. v. Domke, 11 Colo. 247; Denver & U. P. Ry. Co. v. Barsaloux, 15 Colo. 290. It is therefore clearly within the province of the city council, in the exercise of such power, to determine whether a railway track which has been laid in a street without authority, shall be permitted to remain; or, the necessary steps to [281] be taken to remove it. Their action in this respect must necessarily be governed, by the circumstances of the particular case, and involves the exercise of discretion and judgment, and is therefore not subject to the control of the courts by mandamus. Counsel, however, contend that even conceding that the city council has the power, under the charter, to give license by ordinance for the locating of the track in question where it is in Wewatta street, that not having granted such license, the occupation is therefore “ without authority of law,” and is an “ obstruction ” which it has been the duty of the city authorities for the past ten years to abate; and that the status of the obstruction must be considered with respect to the time when the performance of the duty of the- city officials to remove and abate the same was invoked on behalf of the public; and that duty must be performed in respect to that status, whatever the city authorities might see fit to do within the scope of any lawful powers vested in them thereafter. To this we cannot agree. At the time this remedy was invoked the authorities had taken steps to confer upon the railway company the right to use and operate the track as located, and were about to adopt an ordinance for that purpose. It would therefore be an idle ceremony for the court to adopt the suggestion of counsel and compel them to remove the track, even if it had the power so to do, when they might immediately, in the exercise of their conceded authority, permit the company to replace it. We are, therefore, clearly of the opinion that in the circumstances of this case, the relator is not entitled to the remedy asked, and that the court below properly dismissed the action. Its judgment is accordingly affirmed. Affirmed.