Woodall v. South Cov. & Cin. St. Ry Co.

Opinion of the Court by Judge Hobson. — Affirming- Prior to July, 1901, the South Covington & Cincinnati Railway Company owned and operated a — 513 — street car system in the city of Covington under valid franchises owned by it. The various routes on which the cars were operated all converged at the suspension bridge over which the cars passed to and from Cincinnati. They reached the bridge by tracks which passed over Scott and Greenup streets to Second, and over Second to the bridge. In 1901 the city desired to widen Court avenue, which is a street running directly south from the bridge; and a part of the ground required for the additional widening of •the street belonged to the railway company. An arrangement was then made between the city and the street railway company by which the company agreed to take up its tracks on Greenup and Scott streets and to come to the bridge along Park place and then along Court avenue. In other words, the tracks which before ran along Second street were placed along Park place and tracks were laid in Court avenue, and for these two squares Greenup street and Scott street were freed of the cars. The situation is shown on the following plot: — 514 — — 515 — The preamble to the ordinance of the council under which the arrangement was consummated is as follows: “Whereas, the South Covington & Cincinnati Street Railway Company now occupies a portion of Second street, between Scott and Greenup streets, and Greenup street between Second street and Park place, and Scott street between Second • street and Park place, and operates thereon a street railway, its tracks on said streets connecting the tracks upon the suspension bridge with the various routes operated by said South Covington & Cincinnati Railway Company; and whereas, the city of Covington has requested that the said street railway company shall change its tracks and the operation of its street railway from said portion of said streets to Court street and Park place, all as more fully set forth herein; and whereas, said city of Covington desires to widen Court street on the east side thereof, between Third streets and Park place, and the said South Covington & Cincinnati Street Railway Company is willing to give to said city a strip of land twelve feet along said side of Court street, between Third street and Park place, from land owned by said South Covington & Cincinnati Street Railway Company.; and whereas, in the opinion of the council, the said change of tracks from the streets first above specified to Court street and Park place will be for the benefit of said city and the convenience of its citizens and of the traveling public: Now, therefore, be in enacted by the general council of the city of Covington:” (Here follows grant as above stated.) The land which the street car company gave up is shaded dark on the plot. The city widened and paved Court avenue. The company removed its tracks from the five blocks it had previously occupied — 516 — on Greenup, Second, and Scott streets, placing them on three blocks on Park place and Court avenue. The heavy lines on the map represent the location of the street railway before the change, and the dotted lines the location of the tracks after the change. This action was brought by Prank P. Wood-all, a citizen and taxpaper of Covington on July 24, 1908, against the street railway company asking a mandatory injunction requiring it to remove its tracks, poles, wires, etc., from Park place. The city was not made a party to the action, and the removal of the car tracks from Court avenue was not sought. The petition does not show that the plaintiff has sustained any special damage by reason of the tracks in Park place. The circuit court sustained a general demurrer to the petition, and the plaintiff appeals. Section 164 of the Constitution is in these words: “No county, city, town, taxing district or other municipality shall be authorized or permitted to grant any franchise or privilege, or make any contract in reference thereto, for a term exceeding twenty years. Before granting such franchise or privilege for a term of years, such municipality shall first, after due advertisement, receive bids therefor' publicly, and award the same to the highest and best bidder; but it shall have the right to reject any or all bids. This section shall not apply to a trunk railway.” The plaintiff insists that the ordinance above referred to grants a franchise to the street railway company, and that the council was without authority to do this without advertisement, and letting it to the highest and best bidder. He also insists that as a taxpayer of the city he may maintain an action — 517 — to have the street ear tracks and wires removed from Park place. When the ordinance was passed the street railway company had a franchise to operate its cars in the city of Covington. They then had the right to use for this purpose Scott, Greenup, and Second streets, as their tracks were then laid. The purpose of the arrangement between the city and the street railway company was not to grant an additional franchise but simply to relocate the tracks of the street ear company so as to be better for the city and better for the traveling public. The city secured the widening of Court street and the freeing for two squares of Greenup and Scott streets, and the street railway company secured a better approach to the bridge. It gave up its rights in Green-up and Scott streets, and also surrendered to the city the piece of land which it owned. The city has taken possession of the land and enjoys all the fruits of the contract.' This is not such a franchise as could be advertised and sold to the highest and best bidder; for no one would want a street railway franchise running two squares on Court street and one square on Park avenue. The purpose of the council was to get the tracks removed from Greenup and Scott streets, and to get the strip of ground so that Court street could be widened. This could not have been gotten from any bidder at a public sale. It could only be gotten by a contract with the street railway company. The title to the streets is in the city. The city has charge of its streets. It has authority to open, widen, and straighten, change, or otherwise improve its streets. Ky, St. section 3094. Under this power before the adoption of the Constitution, clearly the city had authority to straighten a street by selling a part of it to an — 518 — abutting landowner, and getting from bim other land, or to make any other trade by which the street would be made more uniform not preventing its free use by the public. 28 Cyc. 624. The city here was confronted with a condition which the interest of the city and the traveling public demanded should be changed. By the agreement made with the street railway company the location of the tracks was simply shifted from one position to another to advance the interest of the city. No franchise was granted; nothing was added to the powers of the street railway company. Only the route along which the cars should run was slightly altered. Section 164 of the Constitution was not intended to take away from the municipalities of the state power to make changes like this required by the increased population of the city or altered conditions. It was a mere modification in a detail of the execution of an existing franchise analogous to the removal of tracks from one side of a street to another. Section 164 of the Constitution relates to the granting of franchises. It was not intended to tie the hands of the city authorities as to the mere details of executing a franchise already granted. Both parties here acted in perfect good faith. There was no purpose to grant any new franchise to the street railway company. The only purpose was to adjust an old franchise to.the present needs. Of course, section 164 of the Constitution must not be evaded. If it was made to appear that an arrangement like this had been made in evasion of the constitutional provision, or to accomplish by indirection the granting of a franchise, we should look through the mere form at the substance, and declare the transaction void; but, where nothing of this sort appears, the city — 519 — council may obtain by contract a modification of existing franchises in the mere details of their execution when the interest of the city so requires. In such cases the validity of the transaction will depend on whether the real purpose of the parties was to grant a franchise or simply to obtain a modification in the exercise of an existing franchise. "We think that the latter is clearly the case here. The tracks could not have been put on Court avenue and Park place before these streets were opened and widened. If the city had acquired only a strip of ground along the route now occupied by the street railway tracks and had by contract with the company had it to move its tracks to this strip, and thus relieve Greenup and Scott streets, by no sort of reasoning could it be maintained that this was the granting of a new or additional franchise to the street railway company. And, when instead of acquiring merely a strip, the city opened and widened the streets and thus brought about the same result, the real nature of the transaction was in substance the same. Judgment affirmed.