C., C., C. & St. L. Ry. Co. v. Urbana, B. & N. Ry. Co.

It will be convenient to consider the asserted grounds for an injunction in this case in the order heretofore stated. 1. “More than fifty years” before the commencement oi this action, general power was conferred upon cities and villages to lay off and establish streets (50 O. L., 223). This power has ever since existed. Land held by a railroad corporation, whether acquired by it by purchase or appropriation, Which is not employed in nor needed for the proper exercise of its corporate franchises, can be taken for a public use, the same as the lands of any other owner. Railway Co. v. Village of Belle Centre, 48 Ohio St., 273. Under the general authority to establish streets, a city or village may establish streets across íands which are subject to the franchises of a railroad corporation, provided the second use for which the land is taken is, in the circumstances of the particular ease, reasonably consistent with the former use. The land may, in such case, be subjected to the additional use, but the former use may not thereby be wholly defeated. Little Miami Ry. Co. v. Dayton, 23 Ohio St., 510. “By the extension of the street, the land is subjected to an additional use, but the former use is not superseded; and, in so far as it is interfered with, the question becomes one simply of compensation.” Little Miami Ry. Co. v. Dayton, supra, p. 519. Columbus avenue has been established as a public street across lands owned by plaintiff, some of which land then was and some was not used or needed'for railroad purposes. Plaintiff’s title in the land not so used or needed was absolutely extinguished by establishing the street. In the proceeding to establish the street, the consistency of the use of the lands occupied and used by the tracks for both railroad and ordinary. street purposes was determined, and any interference with the — 588 — railroad company’s use of the land for railroad purposes, by reason of the use of the land for ordinary street purposes being “simply a question of compensation” must be deemed to have been adjusted in that proceeding. This compensation, while including all use of the land for street purposes, would not cover new servitudes upon the land taken. The construction of a line of street railway along a street is an ordinary street use and is not a new servitude entitling the owner of abutting property, or of the fee of the street subject to the street easement, to further compensation. “So far as the carrying of passengers by this mode is concerned, it differs in nothing from the exercise of the common right of carrying them by coaches and omnibuses; and everything needing a grant,. or the further authority of law, is the right to place and maintain in the highway, the necessary conveniences for this neiw description of carriages.” C. & S. G. Ave. St. Ry. Co. v. Cumminsville, 14 Ohio St., 523, 545. Moreover, plaintiff expressly states in its petition that its asserted title and ownership is subject to the “right and use of persons, animals and vehicles traveling upon or passing along the said avenue as a public street and highway.” A street car, propelled by electricity is, within this admission, a vehicle, (Cincinnati St. Ry. Co. v. Snell, 54 Ohio St., 197). See generally as a full and correct statement of the law of this branch of the case C. & H. Elec. St. Ry. Co. v. Railway Co., 21 C. C., 391 (affirmed without report, Ralway Co. v. Railway Co., 64 Ohio St., 550). Plaintiff, then, has no such ownership of, or title to, the lands in question as requires defendant to proceed by appropriation, or otherwise acquire the right from plaintiff as a condition precedent to the construction of the proposed line of street railway. 2. The ordinance of October 21, 1902, depends for its validity upon Section 2505, Revised Statutes. This section refers to Sections 3437 to 3443, Revised Statutes, inclusive, and requires proceedings thereunder. Sections 3438 and 3439, Revised Statutes, were last amended and in the present form enacted April 18, 1883 (80 O. L., 173). It is asserted by plaintiff that the act is unconstitutional and void, and the ordinance in question is — 589 — therefore invalid. By Section 26, Article II, of the Constitution “all laws of a- general nature are required to have a uniform operation throughout the state.” “Whenever a law of a general nature having a uniform operation throughout the state can be made fully to cover and provide for any given subject-matter, the legislation, as to such subject-matter, must be by general laws, and local or special laws can not be constitutionally enacted as to such subject-matter.” State v. Spellmire, 67 Ohio St., 77. The grant of street railway franchises by municipalities or other public agencies, and the establishment of street railway routes by them, can be covered and provided for by general laws. The possibility is demonstrated by the fact that it has - been done. It is provided in the act of April 18, 1883, “that this act shall not apply to any county containing a city of the second grade of the second class.” This proviso except Montgomery county from the operation of the amended sections. If the proviso is to be taken as an integral part of the act, there can be,, we think, no doubt that this enactment of a general nature is not valid law, because it does not have uniform operation throughout the state. Now the proviso equally with the other terms of the act is expressive of the legislative will. On the one hand the Legislature wills and declares that the existing statutes shall be altered and amended so far as eighty-seven counties of the state are concerned, and on the other hand it wills and declares that the existing statutes shall remain in force unaltered and unamended so far as Montgomery county is concerned. The act voted upon was intended no less to accomplish one purpose than the other, and both purposes were intended to be carried into effect by the act.. The Constitution prevents not only the accomplishment of the one purpose, but also of the other and of both together. In State v. Buckley, 60 Ohio St., 273, it was held: “1. When an act of the General Assembly, required to have uniform operation throughout the state, expressly excepts from its operation one or more' cities or counties, such act by reason of such exception is unconstitutional and void. — 590 — “2. Such an exception can not be held invalid and thereby extend the act over the excepted territory, because in such ease the General Assembly never enacted the statute in such territory, and the court has no power to enact it therein.” "What is true of Section 1 of the act referred to is equally true of Section 2 thereof — the repealing section. The Legislature never declared its intention to repeal said sections as to the whole state, but only as to certain counties (less than all), leaving the former statutes in force in one county. . To permit such partial repeal would indirectly accomplish the very purpose which the constitutional provisions were designated absolutely to prevent. The repealing section is therefore void also. The general rule that “where a repeal of prior laws is inserted in an act in order to secure the unobstructed operation of such act and it is held unconstitutional, the incidental provision of prior laws will fall with it,” also sustains the invalidity of the repealing section. State v. Heffner, 59 Ohio St., 368; State v. Buckley, 60 Ohio St., 273; State v. Hall, 67 Ohio St., 303. The act of April 18, 1883 (80 O. L., 173), is void, and because of its invalidity Sections 3438 and 3439, as they appear in the Revised Statutes of 1880, are unamended and are still in force. Section 2502, Revised Statutes, as sought to be amended by said act, was subsequently amended to be free from any constitutional infirmity. The subsequent amendment of the section (88 O. L., 389) is invalid for reasons heretofore stated. This state of the laws leads to the next ground for relief urged by plaintiff. 3. Was notice as provided by Section 2502, Revised Statutes, necessary ás a condition precedent to the passage of the ordinance of October 21, 1902? No such notice was given, and since plaintiff will suffer some inconvenience from the construction as well as operation of the street railway, plaintiff is a proper party and in this action has the right to raise the question. To answer the question will require a brief review of the street railway legislation of this state. Prior to March 3, 1860, all street railways in this state were constructed either by in — 591 — dividuals or by corporations organized under special legislative charters passed before the present Constitution was adopted, or by corporations organized under the general corporation act passed May 1, 1852. No express power or authority was conferred upon municipalities to grant the use of the streets to any such company or individual prior to March 3, 1860, and the right of such use and occupancy if derived from municipal authority, must 'have been granted under the general authority to control the streets. On the date last mentioned there was passed “An act relating to cities of the first class having a population exceeding 80,000 inhabitants” (57 O. L., 16). In Sections 15 and 16 of this act, power to grant the use of the streets for street railway purposes and to prescribe by ordinance the terms and conditions of such occupancy is given with the requirement of “consents,” notice of applications and bids, and it is prudently provided that “all reductions of the rates of fare shall inure to the benefit of the passengers carried.” April 10, 1861 (58 O. L., 66), an act entitled “An act to provide for and regulate street railroad companies” was passed. Section 5 of this act requires the consent of the council or corporate authorites of the city, town, or village wherein such railroad is to be constructed before such road is constructed or commenced, and said company may agree as to terms and conditions upon which' the streets are used and the road operated. Cities of 80,000 population are excepted from the operation of the act. Section 7 provides that street railways may be located and constructed in part within, and in part without, the limits of any city, town or village, and any railroad constructed within the limits' of any city, town or village, may be extended without the limits thereof. Provided, that before so extended, the company, or public officer or public authorities owning or having charge of any road, street, avenue, public way or grounds without such limits shall agree upon the terms and conditions upon which the same shall be occupied or used. March 27, 1866 (63 O. L., 55), an act supplementary to the foregoing was passed by Section 6, of which Sections 15 and 16 of the act of 1860 and Section 5 of the act of 1861 were — 592 — expressly repealed. This act relates only to the construction of street railways within municipalities. Section 1 requires consent of the council. Secton 2 requires the council to prescribe terms and conditions of use, public notice of intent to make the grant, and that no such grant shall be made except to the individual company or corporation that will agree to carry at the lowest rates of fare. Section 3 requires the consents, in writing, of a majority of the owners of abutting lots, to be filed with the council and the council shall so declare, by resolution or ordinance, before the road is constructed, unless by Section 4, by proper proceedings, the damages of the persons "not consenting and waiving damages, are determined, and the rights of such persons acquired in and by appropriation proceedings. Section 5 regulates the procedure. April 10, 1867 (64 O. L., 122), Section 7 of the act of April 10, 1861, was amended and the original section repealed. The extent of the amendment is not here material. April 28, 1868 (65 O. L., 112), Section 3 of the act of March 27, 1866, was amended so as to require the filing of written consents by a majority in interest as a condition to granting the franchise. May 7, 1869 (66 O. L., 149), the municipal code was passed. Sections 411 to 414 of this code regulate street railroads. These sections, in order, to provide that, upon written application by a company, the council may grant permission to construct such railway and prescribe terms and conditions upon which, and the manner im which the same shall be operated; that no such ordinance shall be passed until notice of the application has been given, and no such grant shall be given except to the company, etc., that will agree to carry at lowest rates of fare. The remaining sections relate to the grade of the streets and paving between the rails. Sections 1 and 2 of the act of March 27, 1866, were repealed by this code. On the same day that the municipal code was passed, and Sections 1 and 2 of said act repealed, there was passed another act (66 O. L., 140) as follows : “It shall be lawful for the council of any city or incorporated village to grant permission by ordinance to any person — 593 — or company, owning or having the right to construct any street railroad, to extend their tracks, subject to the provisions of Sections 4 and 5 of said act passed March 27, 1866, on any street or streets where the said council shall deem such extension beneficial to the public. And when any such extension shall be made, the charge for carrying passengers on any street railroad so extended, and its connections made with any other road or roads, by consolidation under existing laws, shall not be increased by. reason of such extension or consolidation; said sum shall include the government tax. ’ ’ February 19, 1870 (67 O. L., 10), the act of April 10, 1867, amending Section 7 of the act of April 10, 1861, was amended in part as follows: ‘ ‘ Street or horse railroads may be located and constructed, part within, part without, or wholly without the limits of any city, town or village; and any such road heretofore or hereafter constructed within, or part within, or wholly without the limits of any city, town or village, * # * may be so constructed or extended along or under the National road, or any other road, street, avenue, turnpike, public way or ground, in accordance with the provisions of an act entitled ‘an act to' provide for and regulate street railroad companies, passed April 10, 1861; provided, that, before such construction or extension, the company, public officer or public authorities, .owning or having charge of any such road, * * * shall agree with such railroad company upon the manner, terms and conditions upon which the same shall be occupied or used;” and in case the national road is used the board "of public works of the state shall so agree. In this state of the law the Revised Statutes were passed as a single act. Sections 411, 412, 413 and 414 of the Municipal Code with some amendments became Sections 2501, 2502, 2503 and 2504, Revised Statutes. The act (66 O. L., 112), was amended to read as follows: “No such grant shall be made until there is produced to council, or the commissioners, as the case may be, the written consents of the owners of more than one-half of the feet front of the lots and lands abutting on the street or public way along which it is proposed to construct such railway or extension thereof; and the provision of Sections 2501 and 2503 to 2505, Revised Statutes, inclusive, so far as they are applicable, shall — 594 — be observed in all respects, whether the railway proposed is an extension of an old or the granting of a new route. ’ ’ This amendment became Section 3439, Revised Statutes. March 9, 1880, Section 2505, Revised Statutes, was amended so as to make the extension therein provided for, subject to Sections 3437 to 3443, Revised Statutes, inclusive, instead of subject to Sections 4 and 5 of the act of March 27, 1866, as theretofore therein provided. It will be noted that now Section 2505, Revised Statutes, makes extensions within municipalities subject to Section 3439, Revised Statutes, et seq., and Section 3439, Revised Statutes, is subject to Section 2505, Revised Statutes, et seq., whenever the same shall be applicable. It is very evident that Sections 2501 to 2505, Revised Statutes, inclusive, standing alone, relate to street railway lines located and extended wholly within municipalities, while Section 3437, Revised Statutes, et seq., relate to all lines and extensions wherever located. In case of conflict as to city lines or extensions, the more general provisions of Section 3437, Revised Statutes, et seq., must yield to the more specific provisions of Sections 2501, Revised Statutes, et seq. ■ Section 2505, Revised Statutes, relates expressly and exclusively to extensions within a city of original city lines. It is evident as this section was first enacted and as the same was first carried into the Revised Statutes of 1880, no notice was required to be given of an application for an extension. The act being made expressly subject to Sections 4 and 5 of the act of May 27, 1866, it will not be presumed that it was subject to other sections of the same act not specified. Nor will the fact that it was placed by the codifiers after Sections 2501 to 2504, Revised Statutes, have the effect to alter its construction or meaning. Allen v. Russell, 39 Ohio St., 336, 337; State v. Auditor of Darke Co., 43 Ohio St., 311, 315; State v. Stockley, 45 Ohio St., 304, 308, 309. When Section 2505, Revised Statutes, was last amended, if it was desired to make the same subject to Section 2502, Revised Statutes, as to notice, the arrangement of the sections would certainly have 'suggested a direct reference to Sections 2502, Revised Statutes, in terms. Instead of this, the operation of the section is expressly made subject as stated to Section 3439, — 595 — Revised Statutes, et seq., and Section 3439, Revised Statutes, requires that the provisions of Section 2502, as well as Section 2505, Revised Statutes, shall be observed in extensions or new routes granted. Since Section 3439, Revised Statutes, refers to new routes, and Sections 2501 to 2504, Revised Statutes, relate to new routes, and the same section (Section 3439, Revised Statutes) refers to extensions, and Section 2505, Revised Statutes relates to extensions, it would seem that the fair rendering of Section 3439, Revised Statutes, upon the point now under consideration, is the same as though the concluding clause were, “and the provisions of Sections 2501 to 2504, Revised Statutes, inclusive, in the granting of a new route, and Section 2505 in granting an extension, so far as said sections are applicable shall be observed in all respects.” The history of the legislation, as well as the language of Section 3438, Revised Statutes, shows that an extension from without, into or through a municipality, is, as to the part of the line within the municipality, a new route. At the very must it can not be contended that Section 3439, Revised Statutes, requires the observance of Section 2502, Revised Statutes, et seq., only when the same are applicable. They are not applicable in all cases covered by Section 3439, Revised Statutes, to-wit, a line constructed wholly without a municipality or an extension of such line not into or through a municipality. In such case municipal officers would have no duty in the premises and the sections only enjoin duties upon such officers. In still other cases of extensions the provisions of Section 2502, Revised Statutes, should be held to apply only if the case is within the reason of each section. Section 2505, Revised Statutes, relates only to extensions and these may be granted. An extension can only be predicated of an existing line or a present right to construct a line — a person to apply for an extension must be the owner of a line or have a present right to construct a line. The statute does not make the right to grant an extension depend upon the fact that there are two or more owners of existing lines or of two or more ■present rights to construct lines in- the municipality. — 596 — The notice required by Section 2502, Revised Statutes is a means to secure reduced fares by competitive bidding. To bidding there must be at least two qualified bidders. In the case at bar there is neither pleading nor proof that when the ordinance of October 21, 1902, was passed, there was any person, persons or corporations other than defendant that could make application for the Columbus avenue extension or could receive a grant of it as an extension. Again, if there were two or more such corporations or persons, their lines existing or proposed would not be identical. By Section 2505, Revised Statutes, a trip for a single fare over the original line and over the extension is contemplated. If notice were given and bids received each company would bid for a trip over its own line, plus the extension proposed. Since each original line would be different, the bidders would submit their proposal not with reference to the same but a different service. In such case it would be impossible to determine whose bid was “the lowest.” But Section 2505, Revised Statutes, does not omit reference to fare, nor omit a means by which the charge is to be fixed. It has an express provision upon the subject: “The charge for carrying passengera on any street railway so extended * * * shall not be increased by reason of such extension. ’ ’ In the absence of all regulation such company could exact a reasonable fare. The function of legislation is to limit. When regulation is attempted, and a specified charge prohibited, or a limit fixed, any charge within the limit or not prohibited may be exacted. Hence, the provision quoted, that the rate of fare fixed for the original line, shall not be increased upon the line as extended, is by construction tantamount to a provision that the former charge need not be reduced by reason of the extension. Terms implied from the express terms of a statute are as much a part of the statute as the express terms themselves. By the terms express and implied of Section 2505, Revised Statues, the rate of fare is fixed for the extended line. And for — 597 — this as well as the other reasons heretofore stated, it results - that to give notice of the application for an extension in the ease at bar, would be a vain thing. The observance of Section 2502, Revised Statutes, as to notice is then not required by Section 3439, Revised Statutes, in the case at bar, because it is not in any degree .applicable. If the extension were from an original line wholly without the municipality, into or through the municipalty, such extension would be, as to such municipality, an original line or new route, and in such case, Section 2502, Revised Statutes, and the other sections would apply. But that is not this case. 91 O. L., 285, Section 6. 4. As to the right to construct branches: Defendant’s charter constitutes it an interurban electric railway. “An interurban electric railroad is classed as a street railroad by the statutes of this state.” C., L. & A. Elec. St. Ry. Co. v. Lohe, 68 Ohio St., 101. “Suburban and interurban railroads, * * * having been classified by the Legislature of the state of Ohio with street railroads, are governed by the laws relating to street railroads. ’ ’ C. & H. Elec. St. Ry. Co. v. Railway Co., 21 C. C., 391. A street railroad company may construct an extension of its lines even beyond the termini specified in its charter (Sims v. Railway Co., 37 Ohio St., 556). Hence defendant, after securing the right to do so, as required by law, from the proper local authorities, can construct extensions, and.there may very well be, and most generally are, branches from its main line. 5. The danger of these proposed grade crossings as a ground of equitable relief. This ground for an injunction as set out in plaintiff’s pleadings involved two questions: one of fact as to the danger of the proposed crossings; the other of law as to the effect of the dangerous nature of the crossings, if either of them be in fact dangerous. We find, as matter of fact, that there is nothing in the location of these crossings, or either of them, or in the grades at which the tracks of plaintiff are approached by the said street, or in the proposed construction or manner of operation of defendant’s street railroad, that will render either of the pro — 598 — posed crossings in any degree more dangerous than a grade crossing of a street railroad with a steam railroad at a convenient grade in a city must ordinarily and necessarily be. On the other hand, by reason of the proximity of plaintiff’s depots and the usual stopping places of its trains-, the use of its railroad yards in the near vicinity, the existence and operation of plaintiff’s block system and the resulting present control which plaintiff will and must have over the movement of its trains at these points — all these render the proposed crossings much less dangerous than such grade crossings ordinarily are. If the fact were otherwise, the result in law in this state would not be different. “In the absence of statutes regulating the place and manner of crossing, and when the rights- of the public or one or other of the intersecting (steam railroad) lines will be materially injured, a court of equity may enjoin a grade crossing.” This rule does not apply to street crossings with steam railroads, and if it does not apply to streets in general, it does not apply to the use in all ordinary ways of such street, and as we have seen, the use of the streets for street railway purposes is an ordinary use. In Railway Co. v. Defiance, 52 Ohio St., 262, it was held that “the comparative dangers in the use of grade and overhead crossings, and the relative public benefits and private disadvantages that may result from a contemplated improvement of the streets, are matters for the consideration of the members of the council, who are the sole judges of the propriety, as well as the necessity of the improvement; and their decision, when not transcending their powers, nor induced by fraud, is not subject to judicial revision”; and in the same case, on error to the Supreme Court of this state, it was held by the United States Supreme Court in Wabash Ry. Co. v. Defiance, 167 U. S., 88: “It is within the discretion of the common council to determine whether the public exigencies require that the grade of a street be so changed as to cross a railroad at a level.” — 599 — And in the opinion by Mr. Justice Brown, on page 491 it is said: “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 in determining this question was wisely exercised; * * * 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 case before that court was one in which the council of the city of Defiance had resolved to abolish an overhead crossing and establish a grade crossing in its stead. Yet the court said: “The question before us- is simply whether the council had the power to make the change, and of this we have no doubt.” The cases cited announce and determine the questions arising u-pon this last branch of the case at bar as far as the law of Ohio is concerned; and whether the railroad company complainant be one lying wholly within this state or extends into other states, and whether engaged in state or in interstate commerce. The suggestion that Sandusky avenue can be used as a highway upon which a safer and better crossing can be constructed is met by the fact that defendant has no present right to use that street, and since to acquire it defendant must first obtain the necessary consents of a majority in feet front of the owners of abutting lots (consents which such lot-owners may grant or refuse as they freely choose), and after these consents are obtained the right is further dependent upon the voluntary action of the council, it can not be assumed that defendant will ever acquire any right to use that street. We are of opinion that the equities of the case are with defendant. The temporary injunction is dissolved and plaintiff’s — 600 — petition is dismissed. Costs to plaintiff. Judgment for costs and execution awarded and the cause is remanded to the court of common pleas for execution. West & West and L. J. Hackney, for plaintiff. A. J. Miller and Pomerene <& Pomerene, for defendant.