Parrish v. Hamilton, Glendale & Cincinnati Traction Co.

GIFFEIÍ, J. The question of law of first importance in the determination of this case is whether ■ not the consents required by Sec. 3439, Rev. Stat., before council can make a grant to any person, permitting such person to lay a railway in a public street of a municipality, can be purchased by the party desiring to obtain such grant and lay the street railway. After reading and considering a large number of authorities submitted by counsel for defendant company, we are of opinion that the question can be best answered by a consideration and comparison of the cases of Doane v. Street Ry. Co., 45 N. E. Rep. 507 [35 L. R. A. 588; 160 Ill. 22, 34, 35 and 36] ; Montclair Military Academy v. Street Ry. Co., 47 Atl. Rep. 890, 894, and Makemson v. Kauffman, 35 Ohio St. 444, 455, together with the settled principles in this state determining the rights and interest of abutting property owners in a public street in a municipality, and the doctrine that in the absence of any interference with the access or egress to and from the abutting property, the building of a street railway in such public street is not an increased servitude which would be an appropriation of a private property right. In Cincinnati & S. G. Ave. St. Ry. v. Cumminsville, 14 Ohio St. 523, which has never been doubted or overruled, and which fixes the law in this state, it is held that the building of a street railroad in a public street, when properly done and under the restrictions of the public council, is not such an increased servitude upon a street as to be a further appropriation of property rights. That being so, it is difficult to see what private property right an abutting property owner has for sale when he undertakes to consent to the location of a street railroad in the public street in front of his property for a consideration. The right to give or withhold such consent either is or is not a property right. If it is a property, right, then such right of a minority of forty-nine per cent, of the abutting lot owners cannot constitutionally be taken from them without consideration by the mere consent, gratutitous or purchased, of a majority of fifty-one per cent. • Further, whatever this right may be, it is of the same kind and nature to each of the abutting property owners, and it is manifestly unfair that some of them should receive a consideration and others either have this right taken from them or have their property subjected to the same conditions without receiving anything therefor. If this is not a property right, but a political right or a governmental or administrative function entrusted to those abutting property owners, it is manifestly against public policy that their consent should-be sold for a consideration. [534] It perhaps clouds the question to undertake to define clearly the fundamental nature of these consents. Be the right to consent what it may, it is given alike to all the abutting property owners, and it is clearly inequitable and unjust that certain of such property owners should profit by parting with such consent and that others should not. The case of Montclair Military Academy v. Street Railway Co., supra, while coming from a court of the highest respectability and authority, is not very persuasive in the case at bar ; because, in the first place, it involves a township road and a distinct finding of fact that the building of such railroad was an in j ury to the abutting property of the Montclair Military Academy and that it was an appropriation of property rights. That being so, that case was decided under a different condition of the established law from that prevailing in this state. The case of Doane v. Street Railway Co., supra, is more in point; that court there holding, as is the law in this state, that the mere building of a street railway in a public street is not the appropriation of the private property right. Further, in the exercise of this right, whatever may be its nature, it is similar to the composition of creditors where a majority in number and amount is required to authorize certain actions in insolvent estates ; and in such cases, the purchase of consents have always been held inequitable and contrary to public policy and good morals. The Supreme Court of Illinois, in the case of Doane v. Chicago City Ry. Co., supra, lay down another reason which appeals to us as to why such consents should not be purchased or sold; that is, by the words of the statute, the consent of a majority must be obtained before the council can act, or make a grant. Therefore, the purchase of such consents is the purchase of an influence which is- to be exercised upon the public legislative body in procuring them to act in their official capacity, and for this reason is against public policy and unlawful. The reason of the court in that respect is equally applicable to the law of Ohio. Section 3489, Rev. Stat., provides: “ No such grant shall be made until there is produced to council, or the commissioners, as the case may be, the written consent of more than one-half of the land abutting on the street or public way along which it is proposed to construct such railway, or extension thereof.” The consent of a majority of the abutting property owners is thus fixed as a condition precedent to the power of council to make the grant; and it is manifestly wrong that this prerequisite of a council’s power should be bartered or sold. [535] But as against all this, is urged the opinion and reasoning of Judge Boynton, in the case of Makemson v. Kauffman, supra, where, on page 455, he says: “Nor does it seem to us that the mere fact that Frantz, Cookston and Heddings, signed the petition for the improvement in consideration of the promise of others to pay whatever assessments might be made upon their lands respectively, made it the duty of the commissioners to reject their names. It does not appear that they were opposed to the improvement, nor that they did not believe it demanded by the public convenience and welfare. What would be the effect of buying off a conscientious opposition to the improvement, we do not determine, but where the improvement is of general public utility or necessity, we are unwilling to say that the mere circumstance that a land owner of the vicinity signed a petition upon the promise of another to relieve him from the burden of the assessment, required the commissioners to adjudge that a traud upon the law was intended, and thereupon to reject the petitioner’s name, in determining whether or not a majority of the resident landowners whose lands were reported as benefited, were in favor of the improvement.” There is a marked distinction between this case and the case at bar, in that in Makemson v. Kauffman, supra, the improvement of the county road involved the charging of the abutting property owner with an assessment for the cost of making the road; and that in giving, or withholding, his consent, whether he exercised his judgment on a public question or not, he certainly did also act in regard to a matter affecting his private property interest. It is no less a property right to relieve one’s self, or one’s property, from a debt, or liability to assessment, than to actually grant or convey a property interest; and in that case nothing more was attempted to be done than to remove the objection of Cookston and Heddings to being subjected to an assessment for making the road. As the court very clearly said, that case did not involve the buying off of a conscientious opposition to an improvement; in fact, it might be a fair inference from that case that were not the property rights of Cook-ston and Heddings involved, and their consent had been on the public question of the expediency of the improvement, the court would have looked at it otherwise. Further, where the question of private property rl>>ht is entirely eliminated, and the giving or the withholding of con sents is to affect a general or public interest, it is extremely doubtful as to whether or not a court would examine into the good faith of a con sent given for a consideration; but that such a transaction would be discountenanced and held unlawful for reasons of public policy. [536] We, therefore, are of opinion that it is unlawful in this state to purchase for a consideration the consents required by Sec. 3439, Rev. Stat. As to the Kahn Bros. and Creecraft withdrawals, it is settled by the case of Simmons v. Toledo, 4 Circ. Dec, 69 (8 R. 535), that a property owner may withdraw his consent at any time before the council has acted upon it and passed the ordinance. We are, therefore, of the opinion that these parties had a right to withdraw their consents at any time before the final passage of the ordinance. On the subject of estoppel, we find no merit in the claim of the defendant company. Whatever it did was done with a full knowledge of all the defects in its grant, and it is deemed to know the law. In the controversy between defendant company and the Hamilton & Eindenwald Electric Transit Company, where it is complained that the defendant company is undertaking to straddle the tracks of the railroad now existing in East avenue, between the corporation line and John street, we apply the same law that was laid down in the case of Hamilton Street Railway Electric Co. v. Electric Transit Co., 3 Circ. Dec. 158, 160 (5 R. 319), where this court, per Smith, J., said: “ We hold, secondly, that the defendant company has no right to interfere with the franchises or vested rights of the Hamilton Street Railroad Company by placing its track, as it is proposing and intending to do, over that of the horse-car line ■ which now legally occupies the center of High street from Second to Third.” This case is unreversed, and states the law as it now exists on this question. Having expressed ourselves on these propositions, which are controlling upon the result of this case, we do not specifically address ourselves to each of the minor questions raised by the plaintiffs in these cases; but say, that on these points, we fully approve the opinion o Fisher, J., in these cases in the court below.