Belt Line Ry. Co. v. City of Montgomery

JONES, District Judge (after stating the facts as above). The real issue is whether or not the limitation of the franchise to 20 years, in the original ordinance adopted March 29, 1889, was repealed by subsequent ordinances. Respondents admit, if that ordinance has been repealed, complainant is entitled to the relief prayed in the bill. [1] In Blair v. City of Chicago, 201 U. S. 400, 26 Sup. Ct. 427, 50 L. Ed. 801, it is held that one asserting private rights in public property under grants of franchises must show that they have been conferred in plain terms; for nothing passes by a grant except it be clearly stated or necessarily implied. Legislative grants of franchises which are in any way ambiguous, as to whether granted for a longer or shorter period, are to be construed strictly against the grantee. In Cleveland Electric Railway v. Cleveland, 204 U. S. 129, 27 Sup. Ct. 207, 51 L. Ed. 399, it is said: “The rules of construction which have been adopted by the courts in cases of public grants” (of the use of the streets) “by the authorities of cities are of long standing. It has been held that such grants should be in plain language, that they should be certain and definite in their nature, and should contain no ambiguity in their terms. The legislative mind must be distinctly impressed with tlie unequivocal form of expression contained in the grant ‘in order that the privileges may be intentionally granted or purposely withheld. It is matter of common knowledge that grants of this character are usually prepared by those interested in them, and submitted to the Legislatures with a [417] view to obtain from such bodies the most liberal grant of privileges which they are willing to give.’” ...... In Pennsylvania Railroad Co. v. Canal Commissioners, 21 Pa. 9, it is said: “The rule of construction in cases of this description is this: That any ambiguity in the terms of the grant must operate against the corporation, and in favor of the public. * * * If, on a fair reading of the instrument; rea- sonable doubt arises as to the interpretation to be given to it, those doubts are to be solved, in favor of the state; and, where it is susceptible of two meanings, the one restricting and the other extending the powers of the corporation, that construction is to he adopted which works the least harm to the state.” In Slidell v. Grandjean, 111 U. S. 412, 4 Sup., Ct. 475, 28 L. Ed. 321, this is declared a wise doctrine: “It serves to defeat any purpose concealed by the skillful use of terms to accomplish something not apparent on the face of the act, and thus sanctions only open dealings with legislative bodies.” The same doctrine is upheld in numerous other authorities. Sec Louisville Trust Co. v. City of Cincinnati, 76 Fed. 296, 22 C. C. A. 334. [2] After a careful consideration of the ordinances passed subsequently to the original grant, which was for a limited period only, and .the wording of the ordinances, which it is insisted repeal the limitation in the original grant, bearing in mind that such a result if intended could have been better accomplished by a f.ew simple, direct words, obviating the necessity for the elaborate circumlocution employed, and the reasons given in the preambles of the several ordinances why further legislation regarding ¡the original grant was necessary, I am doubtful, to say thé very least of it, whether those who voted for the subsequent ordinances were put on notice, by the language employed, of any lurking intent in the subsequent legislation to repeal the limitation contained in the original grant, or intended, or desired by'voting for the subsequent ordinances; to effect a grant of the franchise beyond the term fixed in the original ordinance, or that the subsequent ordinances had that effect. Under all the authorities, under such circumstances, the doubt must be resolved in favor of the city, and I must hold that the resolution directing the complainant to remove its tracks and. cease the use of the streets is a proper exercise of authority by the commission and that complainant has no right to complain of its enforcement. There must be a decree discharging the temporary restraining order, denying a preliminary injunction, and dismissing the .bill. If the complainant desires to appeal, it may have ,a .supersedeas upon giving bond in a sum to be.'agreed upon ¡by counsel--or:'fixed, by the court. Counsel may prepare and present a decree in conformity with this opinion.