The Owosso times. (Owosso, Mich.) 1897-1926, 1899-01-06

nent 10 ascertain In this connection whether the
chise ordinance granting said Company the
right to lay tracks, has the power TO compel II
to do so At Its own expense whenever required
Section 1854 OF Howell's Annotated Statutes
being Section 10 OF the Street Railway Charter
law under which said Company is organized.
reads as follows: 1.-THE common council or
other corporate authorities OF the city or VII
lage In which any street railway shall be located,
may from time 10 time, by ordinance or other.
regulations In regard TO said railway a. may be
required for the grading, paving and repairing
the street. and the construction OF sewers
drains, reservoirs aud crossings, and the laying
Of gas and water pipe upon, IN and along, the
streets trayersed by such road, and 10 prevent
cbstructlons thereon" a>--3 ~ (.
tion OF the franchise ordinance passed by the
council, and approved October 18th, 1895, the
railroad company must, at It's own expense
established At any time by the council, and
have no doubt but that actual power to CON pei
WAS sSssa rd 70 Ce
also occur In said Section OF the ordinance.
"And when any street shall be paved, upon
which saS company t RAG sns oe now iai
track shall be laid flush with the surface of the
pavement, and the ties stringers and rails shall
be SO laid, and the tracks so constructed as to
least Inconvenience public travel on the
streets"
Booth in his work on Street Railways, at Sec.
on ont the u whole hole roadway, including portion Of
street occupied oy railway tracks, whether the
company is required to lay that part of the
during construction of the new pavement relay
its tracks and readjust them to the changed
conditions In the street, when that course is
to the street as improved This obligation eI-
lists. independently OF any expressed statutory
requirement., or any specific agreement with
the municipal authorities and arises from, or
Incidents
cation to maintain It's t acks so as not to create
an obstruction to other travellers, or to interfere
safe and convenient use OF that portion Of the
See also District of Columbia VS.. Washington
q Georgetown Ry. Co., Mackey, 1851.
Columbus VS.. Street Ry Co. $50. ST. 9s
Louisville City Ry. Co. vs. Louisville, Bush
Il was also held by the Supreme Court of In.
diana in the Western Paving & Supply Co. VS..
Citizens Street r. Il. Co. 1873 Ind. SIS, that,
although 9n amending ordinance had relieved
pave, still it was the duty Of the Company so to
ADJUST its tracks as to conform to the street In
its improved condition at its own expense.
Elliott in his work on Roads & Streets says
that police power of this character Inherently
exists in municipalities, and so prevails as
against chartered rights, as to require corpora
the matter of reasonable regulation of the
streets and roads. Up. p 564-5.)
AT page b77 he declares the belief that the
police pc yer of q city is such that 1t may even
require "a street railway company to change It's
location on street at Its own expense. He
further says that the power to regulate, control
and enforce necessary changes at the railways
expense is probably never suspended, even in
part without the expression OF the intention to
surrender the power in clear and unmistakable
words See also, West Philadelphia Passenger
Ry. Co. VS.. City OF Philadelphia, 10 Phila, TO-
From the foregoing 1t is to be concluded that
the city OF Owosso has not only a common law
or general legal power to enforce reconstruc-
tion of the street railway so as to conform TO
the Necessity Of any Improvement OF the streets,
but I'll at additional power is granted or reserved
in the statute under which the railway company
is chartered Let us therefore see II by any
agreement in the franchise ordinance the city
has surrendered any OF Its power Section OF
the franchise ordinance reads as follows: The
said company, its successors and assigns shall
pave between the rails OF its said track. and at
least 18 inches outside of the rails Of each side
of said track, with the same material and in
like manner as said city shall hereafter pave
any street upon which said company's tracks
may run, provided, that II the said city shall
pave any of the streets within five years from
the date of passage and adoption OF this ordi-
nance, then the said railway company shall pay
one-half the expense OF such pavement, and
each side of the track as herein provided, and
the said city of Owosso shall pay one-half OF the
expense of such pavement, ETC." Crhe balance
of the section provides for pavement more than
five years after the passage of ordinance.)
The Railway Company'S contention is that
the words expense Of such pavement" mean
the expense OF all change and reconstruction in
its track MADE necessary by such pavement, as
well as the actual cost OF paving itself. find,
upon careful search, no new or unusual de6ni-
tion of the word Expense" which would apply
to such a case, and believe we must conclude
under ordinary circumstances that the scope of
the word expense" is limited by the qualifying
words used with 1t, as the words 'of such pave
ment, which are used in this case. Ordinarily
no legal research would seem necessary to
strengthen this view, but there has seemed to be
so much and such stubborn division of opinion on
this subject that felt 1t best to satisfy you that
no adverse rule or opinion has been overlooked
which might change this conclusion The result
OF my study has been only to confirm my pre-
v0us opinion.
The general principle is well settled that char.
ters and franchises of street railway companies
are to be very strictly construed against the CON-
pany. AS said In the western Paving Supply
Company case above cited, 1T has no doubtful
rights under such charters. for where there are
doubts they are construed against the grantee,
Co. VS.. Jones, "a Fed. Rep. $40.
Mayor of Allegheny VS.: r.. r. Co. 20 Pa. st. 1855.
Birmingham, ETC., Ry. Cows. R.R.CO. 70 Ala.465.
West Phila. etc. Ry. Co vs. City. 10 Phila. 10.
And the doctrine has been squarely announced
by our own supreme Court In numerous deci-
sOns, and particularly In the case of the City of
Detroit VS.. the Fort Wayne & Belle Isle Ry. Co.,
as late as 1893, where they used these words:
&c containing tba grants rus
To put the foregoing simply, 1t means, gentle
men. that the city had originally, regardless of
statute granting II, full authority to compel the
street railway TO reconstruct In this case that to
such common law authority was added the stat
utOry provision In the street railway charter law
above quoted; that by section 3 of the franchise
ordinance of october IA, 1895, the city apparently
still further reserved power In that line; and
that, If 1t intended In Section of that ordinance
to convey away any of this authority by assum-
ing part of the burden imposed by 1t upon the
railway company, 1t should have done so In clear
and unmistakable terms. 1t Is my opinion that
the words zone half the expense of such pave
ment" seem to mean only the actual cost of paw
ing, and that there Is no reconstruction of track
on account of pavement Intended to be covered
thereby; at least, that these words are doubtful
in the sense In which they are cOntended by the
company to be used, and that according to the
foregoing legal principles that doubt would be
resolved In favor of the City of OwossO were 1t
put In question In any competent court; and that
there Is no obligation on the part of the city to
pay the annexed bill or any part of IL.
When the railway company took its franchise
from the city 1t had warning from the ordinance
that 1t might be required to pave within a short
time. IL was legally presumed to know, or to
have engineers who knew, what sort of rail Is
essential 70 modern pavement. IL IL assumed
the chances of putting down rail, or of accept
ing a track laid with such rails as would not
meet such requirements, IL would have no reas-
enable grounds upon which to ask the city to re-
lieve IL from reconstruction on account of ex-
pense, even should that expense be out of pro-
portion to Its present income. 1t knew its legal
obligation, as well as the proper rail for paving,
and II 1t desired the city to agree TO bear a por-
ton of its burden, 1t should have seen to 1t that
the words of that agreement were clear and I'M