#### State, *Ex rel.*City of Gadsden *v.*Alabama City, Gadsden & Attalla Ry. Co.

*Mandamus.*

(Decided April 4, 1911.

55 South. 176.)

1. *Municipal Corporations; -Public Improvements; Assessment; Attack.*— Where the action is by mandamus to compel a street railway to comply with certain ordinances, so as to prepare its track and roadbed to receive permanent pavement to be placed on the street, the street railway company cannot raise an objection to the assessment, where the parties who are to pay the assessment for the pavement are not raising objections.

S. *Mandamus; Proceedings; Petition.*— In a mandamus to compel a street railway to remove certain rails and replace them with certain other rails as required by a paving ordinance, a petition for mandamus which alleges that the rails required to be taken up are not suitable for the paving provided for in the street and that the paving could not be done in a substantial manner without the removal of the other rails, and the substitution of the ones required by the ordinance, is not subject to the objections that it does not *126show that the requirement is a reasonable exercise of the power vested in the city council, nor that it is necessary to the paying of the street with the material and in the manner set forth.

3. *Street Railroads; Municipal Regulation; Validity.*— Under section 238, Constitution-1901, and sections 1269 and 1374, Code 1907, a street railway takes its right to use the streets under a grant of authority, subject to the paramount right of the municipality to grade and improve the street, and to make such requirements and regulation as are necessary and reasonable to make the street suitable and convenient for the use of the traveling public.

4. *Same; Presumptions.*— An ordinance requiring a street railway to remove its rails on portions of the street and to replace them with seven inch “T” rails weighing not less than eighty-five pounds per lineal yard, to be placed on good quality of sound cross ties and ballasted in a first class manner so as to receive the permanent improvement to be placed on this street, will be presumed to be a reasonable ordinance until the contrary appears.

Appeal from Gadsden Gity Court.

Heard before Hon. John H. Disque.

Mandamus by tbe State, on tbe relation of tbe Gity of Gadsden, against tbe Alabama City, Gadsden & Attalla Railway Company. From a judgment sustaining demurrers to tbe petition, defendant appeals.

Reversed, rendered, and remanded.

Dortch, Martin & Allen, M. C. Sivlew, and W. J. Martin,- for appellant.

When tbe street railway takes tbe grant of authority to use tbe streets and avenues of tbe city, it assumes tbe burden of using said street as tbe city may direct. — S'ections 1268, 1269, 1874 and 1359, Code 1907. There is no question about tbe power of the legislature to pass these *statutes.*— 8. *G. St. Ry. Go. v. Sioucc*Gity, 138 U. S. 899. Tbe charter of tbe railway company has engrafted on it liability of revocation or alteration under tbe Constitution. — 134 Ala. 634; 53 Ala. 577; 92 Ala. 366; 104 Ala. 262; 34 Ala.-330. Tbe court cannot know that tbe action taken was unreasonable, in fact, tbe contrary is presumptively true.- — ■ 70 Ala. 365; 147 Ala. 682. It follows that tbe trial court *127was in error in sustaining the demurrers to the bill. Mandamus was the proper remedy. — 78 Ala. 828.

O. R. Hood, for appellee.

Counsel discuss the sections cited by appellant and insist that it is necessary for appellant to disclose in its said information the fact that it proposes to pave said portions of said street, that it has taken the required steps, and that the change demanded in appellee’s tracks is. necessary or desirable to carry out said plan of street paving, and it must show a'clear, legal right before mandamus can be granted. — 19 A. & E. Enc. of Law, 725. All rights of the corporation legally acquired are equally beyond- legislative interfer*ence.-*— Railway *Go. v. Maim,,*96 H. S. 511; *Miller v>. The State,*15 Wall. 478; *Coast L. R. Co. v. Sa/oannah,*30 Fed. 650; 27 A. & E. Enc. of Law, 40 and 41; *State v. Corrigan S. R. Co.,*55 Am. Rep. 361; *T. & S. Bank v. Arkansas City,*76 Fed. 282; *Western S. Soo. v. Philadelphia,*31 Pa. St. 175; 1 Dillon, secs. 27 and 66; *City of Selma v. Mullen,*46 Ala. 414; *City of Greenville v. Greenville W.*W. *Go.,*125 Ala. 627. The city was without authority to compel the appellee to change its tracks. —25 A. & E. Enc. of Law, 1173-4 1204; 1 Abb. on Mun-Corp. 851.

SIMPS'ON, J.

This is a petition by the appellant, the relator being a municipal corporation, alleging that the appellee owns and operates a street railway within the corporate limits of said city; that the city council of said city has passed ordinances for the grading, paving, and otherwise improving certain streets in said city over which the lines of said railway .company run; that said city council had adopted ordinances “requiring the defendant to remove the rails now laid on said portions of said streets, and to replace the same with seven-inch Trails, said rails to be seven inches in height, and weigh*128ing not- less than eighty-five pounds per lineal yard, same to he placed on good, quality of sound cross-ties, and ballasted in a first-class manner, so as to receive the permanent pavement to be placed on said portions of said streets;” that the 20th day of June, 1910, was set as the limit within which said order was to be complied with; that a. copy of said ordinance was served on the defendant; and that it- has wholly failed to comply with the same. The petition prays for a writ of mandamus commanding said defendant to forthwith comply with said ordinance, or to show cause why it should -not be required to do so. The alternative writ was issued, and the defendant appeared and demurred to the petition, which demurrer was sustained, whereupon the petition was amended, and the demurrer was refiled, and additional grounds of demurrer were filed to the petition as amended, which demurrers were also sustained, and the appellant appeals from the judgment of the court on said demurrers, which appeal was permitted by the court in accordance with the provisions of section 25 of “An act to declare the powers and jurisdiction of the city of Gadsden, in Etowah county,” approved February 27, 1901 (Acts 1900-01, p. 1303). The causes of demurrer numbered 1, 2, 3, 4, 5, 6, 7, 18, and 19 seek to raise the point that the petition does not show that the city had complied with all of the requirements of the statutes in regard to paving, grading, or improving of streets, and assessing the cost thereof against the abutting owners. The petition as amended, with the exhibits thereto, not only shows a compliance with the statutes, but also that the notices were given and a day set in accordance with the statutes for property owners to make objections to said assessment, that said day has passed and no objections were filed, and according to the decisions of this *129court- it is too late to offer such *objections.*— City *of Woodlawn v. Durham,*162 Ala. 565, 50 South. 356.

However, this proceeding is not to collect an assessment, and, if those who are to pay the assessments are not raising any objections, this defendant cannot. The city is proceeding to improve its streets, and the question is, Has it the power to require the change of the tracks of the defendant as required?

Some of the remaining causes of demurrers deny that the city has any right- to make such a requirement-, and others raise the point that the petition does not show that the requirement is a reasonable exercise of the power vested in the city council, or that it is “necessary to the paving of said streets or portions thereof with the material and in the manner set forth.” As to the last-named cause, the amended petition alleges that “the rails required to be taken up are not suitable for the paving provided for, and said paving could-not be done in a substantial manner without the removal of the old rails and substitution of the ones provided for.”

It is laid down generally “that the state, or its duly authorized municipality, may require a street railway company to do whatever is required for the health, safety, and welfare of the community, for the authority to enact measures 'for this purpose never passes from the sovereign, no matter what grants it may make. It must follow from this fundamental principle that all corporations take their rights and privileges subject to the general power which permanently resides in the state;” also, that, when any regulation is prescribed by the Legislature of the state, the courts can only inquire whether it is constitutional, but, when it is prescribed by a municipal corporation, the courts can also inquire whether the regulation is a reasonable one. — Elliott on Roads & Streets (2d Ed.) § 758, pp. 815, 816. It is also *130said that “it is a well-established general rule, however, that where an ordinance is based upon a general power, and its provisions are more specific than the expression of the power granted, the courts will inquire into its reasonableness, and hold invalid if clearly unreasonable; but the presumption is that such an ordinance is reasonable.”- — Idem, § 807, p. 878. Mr. Nellis, in his work on Street Surface Railroads, affirms the right and power of a municipal corporation to prescribe the manner in which the street shall be used, and, unless limited by statute or contract, to -determine within reasonable bounds as to servants, appliances, etc., and says: “But it cannot require a railroad company to take up the rails long used in the streets with municipal consent and substitute others which the municipal authorities determine are more suited to- the convenience and safety of the traveling public. It may, however, prohibit the use of a certain kind of rail in all future construction,” etc.— Nellis on Street Siirface Railroads, § 3, pp. 219, 220.

We have examined all of the authorities referred to by the author, except one, which is not a court of last resort, and do not find that this point was presented in either of them. Several of said cases hold that, where the charter powers of the city or the contract by which the railway company was permitted to nse the streets did not authorize it, the city could not require two men, to wit, a conductor and a driver, to be on each car.— *Brooklyn Crosstown R. Co. v. City of*Brooklyn, 37 Hun (N. Y.) 413, 417; *City of Toronto v. Toronto Street Ry., 15*Ont. App. 30, 35. The case of *Slate, Trenton H. R. Co. v. Trenton,*53 N. J. Law, 132, 20 Atl. 1076, 11 L. R. A. 410, held such an ordinance not on its face unreasonable, and that the burden was on the railway company to show that it was. Several others hold that where the railway charter was- silent as to what *131kind of rail ivas to be used, and tbe track was laid and used for years with flat rails, tbe railway company might afterward adopt the improved T-rails, provided they were so laid as not to create a greater obstruction to the use of tbe *streets.*— Easton *Pass. Ry. v. Easton,*133 Pa. 505, 19 Atl. 486, 19 Am. St. Rep. 658. In tbe case just cited tbe city declared tbe rails a nuisance, and proceeded to tear them up. Tbe master reported that tbe T-rails did not interfere with travel on tbe street, and tbe court, without passing upon that point, held that the city should have proceeded by orderly process, and not taken tbe law into its own bands, and committed a trespass by tearing up tbe rails which bad been there in use. — Pages 518 et seq. of 133 Pa., 19 Atl. 486, 19 Am. St. Bep. 658.

In *Electric Railway Co. v. City of Grand Rapids,*84 Mich. 257, 47 N. W. 567, tbe statute under which the street railway company was organized and tbe ordinance of the city conferred tbe right on tbe company to traverse tbe streets and provided for iron poles in the' fire limits and wooden poles beyond tbe fire limits, and it was held that tbe city could not afterward attach a. condition to tbe use of ‘wooden poles that tbe company should furnish transfers free of charge. Tbe case of *Western Saving Fund Society v. City of Philadelphia,*31 Pa. 175, 72 Am. Dec. 730, simply decided that a city could not violate its contract made with a gas company.. Tbe case of *City of Waterloo v. Waterloo Street Railway,*71 Iowa, 193, 196, 32 N. W. 329, 330, where tbe city bad granted to tbe railway company tbe privilege of constructing and operating a street railway over the' streets, without specifying what kind of rails .was to be used, decided that tbe city could not enjoin tbe railway from using a certain kind of rails on tbe ground that it would cause its track to be a nuisance, because tbe city *132had full power to enforce its regulations, without an injunction the court saying: “The city council is vested, by Iuav, with the power to determine the condition of repair in which the streets shall be kept. They have full control over the streets, and they may make any reasonable and necessary regulation as to the manner in which they shall be used. It does not appear to us that' their powers in this respect are at all affected by the contract with the defendant. The city may require the defendant to so exercise the privileges conferred upon it by the grant as that the use of the street for ordinary purposes will not’ be unreasonably interfered with.” Section 10 of article 14 of our Constitution of 1875, which is identical in this particular with section 238 of our present Constitution (and which really runs back to the Constitution of 1868), confers on the Legislature power “to alter, revoke or amend any charter of incorporation now existing, and revocable at the ratification of this Constitution, or any that may hereafter be created, whenever, in their opinion, it may be injurious to the citizens of the state; in such manner, however, that no injustice shall be done to the corporations.”

The state of Iowa had a statute of similar import, and the city of Sioux City granted to a street railway company the right to build and operate a street railway over its streets, providing that, whenever any of its streets should be macadamized, said street railway company should macadamize between its tracks. Subsequently the Legislaure passed an act requiring all street railway companies to macadamize also to the extent of one foot outside the rails. The Supreme Court •of the United States held this act valid, saying that “the company took its charter subject to the provision •of that section,” that “it was not in the power of the *133city, by any contract with the company, to deprive the Legislature of the power of taxing the company;” that “the Legislature had the power not only to repeal and amend the articles of incorporation of the company, but to impose any conditions upon the enjoyment of its franchise which the General Assembly might deem necessary for the public good. The reservation of this power was a condition of the grant. The city council could make no arrangement with the company which would not be subject, under that section, to the superior power of the General *Assembly.”*— Sioux *City Street Railway v. Sioux*City, 138 U. S. 98, 107, 11 Sup. Ct. 226, 229, 34 L. Ed. 898.

Counsel for appellee insists that in the *Sioux City Case*the Legislature had expressly reserved the right to repeal, alter, or amend the charter of such companies. Section 10, art. 14, of our Constitution of 1875, and section 238 of our present Constitution above cited, reserve the like power to the Legislature. Section 1374 of our Code of 1907 confers full power on municipal corporations in regard to paving and improving the streets, and section 1269 requires street railroads to use such rails as may be prescribed, and that “any public utility using the streets of the city or town shall at all times, in the manner prescribed by the council, render the use of such streets safe to vehicles and persons, and all tracks on such streets shall, when required by the council, be placed at any fixed grade, and changed, free of expense to the municipality, when found necessary.” This court at an early day, in referring to section 1 of article 13 o:f the Constitution of 1868, said that the object and scope of it was “the prohibition of the grant of the corporate power to private corporations, except subject to repeal or amendment at the legislative will. Municipal corporations, mere governmental. agencies, *134were completely subject to legislative control. * * * Subjection of private corporations, to tbe same extent, to legislative power, as if tbe power was expressly' reserved. in each charter of incorporation, was the purpose of the constitutional *provision.”*— Mayor *of Mobile v. Stonewall Insurance Co.,*53 Ala. 570, 578-579. In a case where a water company, under a contract with the city, had located and placed its pipes, mains, and acqueducts in accordance with the city ordinance, and under the supervision of the city engineer, it was held that the city might afterwards require the same to be lowered; the court saying: “The city charter confers on the municipal authorities power, and devolves the correlative duty,'to keep the streets in repair, safe and convenient for public use. That a contract surrendering such power, and having the effect to disable the performance of such duty, is invalid, seems too well established to admit discussion. * * * The city council has no' power, in the absence of legislative authority, to make contracts or pass ordinances relinquishing or abandoning the legislative or governmental powers or divesting the corporation of its legislative discretion, or disabling it to perform its public *duties.”*— City *Council of Montgomery v. Capital City Water Co.,*92 Ala. 361, 363, 364, 9 South. 339, 340. The fact that the court in that case refrained from passing upon the question as to whether the city could in a proper proceeding be required to bear the expense of making the change does not in the least militate against the principle so clearly declared.

In the case of *Lindsay v. Mayor, etc., of Anniston,*104 Ala. 257, 16 South. 545, 27 L. R. A. 436, 53 Am. St. Rep. 44, it was contended that the ordinance prohibiting hackmen or transfer men from entering the railway station to solicit patronage, although they had been given that special privilege by the railway company, *135impaired the obligation of that contract, hut this court held that such contract, like all others, was made subject to the paramount power of the city to regulate such business.

We hold that the result of these authorities is that when any public utility uses the streets of a municipality, under any grant of authority, it tabes the right, subject to the paramount right of the municipality, to grade and improve its streets, and to malee such requirements'and regulations as are necessary and reasonable in order to make the streets suitable and convenient for the use of the traveling public. As to whether the requirements in this case are necessary and reasonable must be determined when this case comes to be tried on the merits.

The ordinance is presumed to be reasonable until the contrary *appears.*— Van *Hook v. City of*Selma, 70 Ala. 361, 365, 45 Am. Rep. 85*Gamble v. City of Montgomery,*147 Ala. 682, 684, 39 South. 353. It is not denied that there is a. distinction between the legislative and the contractural acts of a municipal corporation, and it can no more than an individual violate its contract, but these being the general principles involved, if there were any contractural rights violated, the respondent should have put in evidence the contract, in order that that matter might be considered by the court. We cannot presume, in the absence of evidence that there is a contract which has hen violated.

The court erred in sustaining the demurrers to the petition as amended.

The judgment of the court is reversed, and a judgment will be here rendered, overruling the demurrers to the petition as amended, and the cause is remanded.

Reversed, rendered, and remanded.

' McClellan, Mayfield, and Sayre, JJ., concur.