« ΠροηγούμενηΣυνέχεια »
tensions, what is called the Garden street | equip and operate the said extension and branch, and is the railroad in question. its Garden street branch for the period of
On the 30th of March, 1868, the railroad twenty-five years from and after the pascompany was permitted by ordinance of the sage of the ordinance.” When this ordivillage of East Cleveland to construct a nance was passed the eastern limits of the branch railroad on Garden street, which city of Cleveland had been extended, so would form an extension, in fact, of the that the territory covered by the grants to Garden street line easterly through the vil- the Garden street line was at that time inlage to the line of Wade street. The grant cluded in the city of Cleveland. was for twenty years from the time of the In 1885, February 9, the council passed an completion of the work, which was to be ordinance permitting the East Cleveland completed within five years from the date Railroad Company “to extend its Garden of the passage of the resolution granting street branch from the intersection of Quinthe right,-March 30, 1868.
cy street and Lincoln avenue, in an easterOn the 25th of March, 1873, the council ly direction, to Woodland Hills avenue, passed a resolution, in the preamble of
and equip and operate said extenwhich it was stated that the East Cleve- sion as a single track railroad, with all necland Railroad Company desired and pro-essary switches, turnouts, and turntables” posed to connect their Garden street branch in connection with said branch and its main with the main line of their road at the in- line, and terminating with the grant for the tersection of Erie and Prospect streets, and main line, but with the express condition thereupon the council granted to the rail that “no increase of fare shall be charged road company the "right to lay down aby said company on any part of its main double track street railroad in Ohio street line, or on said extension, by reason of said from their present track in Brownell street extension." to Erie street, and in Erie street, from Chio On the 17th of June, 1887, the council street to Prospect street, to connect with granted another extension to the Garden their main track at this point." This made street branch on Garden street from Baden a junction at Erie and Prospect streets, with avenue easterly to Lincoln avenue, the grant the Euclid Avenue Railroad, instead of atto terminate "with the grant for the Garden Brownell and Prospect streets,--a small street main line," and no extra fare. difference as to length of road.
On the 10th of March, 1890, the council On the 23d of May, 1876, the council au- passed an ordinance which "granted the thorized the East Cleveland Railroad Com right to operate its Garden street branch pany to extend the Garden street branch by electricity" from and to the points of its road at the easterly end thereof along named in the ordinance, and this grant was Garden street to Baden avenue thence to "to operate by electric power the said GarQuincy, along Quincy to New, and along den street branch during the term of its New street to Garden street, there to con- present grant for said Garden street nect with the Garden street tracks. The branch.” Both roads were thereafter operordinance provided that the right therein ated as electric street railroads. granted should continue for twenty years On the 30th day of March, 1891, another from that date.
ordinance was passed, authorizing the railThis extension placed a track in Quincy road company “to operate a second or adstreet from Baden to New street, which was ditional track in and upon Central avenue a very short distance. It did make a differ- (Garden street) from the east line of Willent date for the termination of the grant son avenue to the Cleveland & Pittsburg than was provided for the rest of the Railroad tracks.” It was provided that the branch, and it was to be operated "in con- “right herein granted shall be valid until nection with said branch and its main line.” | the expiration of the grants for the said No increase of fare was to be charged by company's main line.” the company on any part of its branch or On the 20th of April, 1891, an ordinance of its main line or extension by reason of was passed which authorized the railroad the extension.
company to "operate a second or additional In the year 1880, on the 22d of March, track in and upon Quincy street from New the council passed an ordinance authorizing street to Woodland Hills avenue.” This the East Cleveland Railroad Company to ex- was part of the Garden street line. Sectend the Garden street branch of its rail-tion 3 of the ordinance contained the proway from the then-existing track at the vision that the “right herein granted shall intersection of Baden avenue and Quincy be valid until the expiration of the grants street, on and along said Quincy street, in for said company's tracks on said Quincy an easterly direction to the intersection of street east of Lincoln avenue; to wit, July Quincy street and Lincoln avenue, and to 13, 1913.”
These are the material ordinances which of the constituent companies of the consol. particularly relate to the Garden street idated road had laid their tracks. railroad.
The ordinance granted each railroad comDuring March and April, 1893, the company the right to extend its double track plainant herein was organized as a consoli- railroad along Willson avenue from and to dation of several street railroads, which, it the various points named in the ordinance, is enough to say, included, among others, and the road was to be constructed and the Euclid avenue and the Garden street operated in connection with the existing lines, and on the 22d day of May, 1893, the tracks in Willson avenue as a double track consolidated railroad company (this com- street railroad. The two companies named plainant), through its vice president, ad- in the ordinance were to jointly construct dressed a communication to the council, and maintain the road, and each was to stating that the various consolidations had have the right to occupy and use the been made under advice of counsel, but in- track, wires, etc., of the other company as much as some question seemed to have then in Willson avenue, on such terms and arisen as to the intention of the company, conditions as the council might deem just it was stated that the company did not and reasonable, unless the companies should claim any rights greater than the constitu- otherwise agree. Provision was then made ent companies forming the organization; for the running of through cars on Willson that it intended to obey all ordinances to avenue between certain points, and night which each and all the constituent compa- cars were to be operated by the companies nies were subject, and that it had, since the throughout the entire length of Willson consolidation had been effected, issued trans- avenue. A passenger on any car operated fer checks to all persons desiring them, to on any part of said Willson avenue was to enable such persons to have a continuous have the right, on the payment of one fare, ride from any East Side line to any South without additional or extra charge, to be Side or West Side line, and from any South transferred to any other line of either of or West Side line of the company to any said companies intersecting or coming to East Side line, for one fare, and would con- said Willson avenue, and was to have a tinue such system of transfers where it continuous ride thereon, with the right, could not better accommodate its patrons without additional charge, to be transferred by such through lines as it might estab- from said second line to a car on any other lish; and that it disclaimed all intention line of either of these companies intersectof charging more than one fare for any ing or coming to Willson avenue, and was such continuous ride; "and that its aim has to be entitled, without additional or extra been and will be to give its patrons vastly charge, to be transferred to the Willsor. improved service and accommodations by avenue line and to have a continuous ride
thereon. Regulations were made for the reason of such consolidation."
The council thereupon, by resolution, con paving of certain portions of the street by sented to the consolidation of the various the company under the direction of the city railroad companies named in the resolution authorities, and provision was made for under the name of the Cleveland Electric widening the roadway on Willson avenue
between certain points named, and for setRailway Company, upon the condition that "only one fare shall be charged for a con
ting back curbs, hydrants, etc., all of which tinuous ride on or over any line of rail. was to be done at the expense of the comway formerly owned by any other of said panies
, which were also to comply with and constituent companies within the limits of city relating to street railroads, then or
perform all the general ordinances of the the city of Cleveland; and passengers on thereafter in force. By $ 10 it was provided any of such lines paying one fare shall be that the grant should be in force until the entitled, without extra or additional charge, 1st day of July, 1914. to be transferred to any other of said lines
On the 25th of June, 1894, the council and have a continuous ride thereon for said passed "An Ordinance Granting the Clevesingle fare.” The conditions contained in land Electric Railway the Right to Extend the resolution were thereafter accepted by and Operate Its Double Track Street Railthe complainant in writing.
road in Quincy Street from New Street to On the 19th day of February, 1894, the Willson Avenue.” This ordinance provided council adopted "an ordinance granting per- for the extension and operation by the mission to the Cleveland Electric Railway Cleveland Electric Railway Company of a and the Cleveland City Railway Company double track street railroad on and along to extend their tracks in Willson avenue.” Quincy street, from its then present tracks This avenue runs north and south and thereon, westerly to Willson avenue, concrosses many of the avenues in which some necting by curves with its Willson avenue tracks. The 6th section provided that “this inite in their nature, and should contain grant shall terminate with the grant for no ambiguity in their terms. The legislasaid company's present line in Quincy tive mind must be distinctly impressed with street."
the unequivocal form of expression conThese ordinances and resolutions are tained in the grant, "in order that the privi. those which particularly relate to the ex- leges may be intelligently granted or pur. tent of the grants to the railroad company posely withheld. It is matter of common for the Euclid avenue and for the Garden knowledge that grants of this character are street lines. Other ordinances and resolu- usually prepared by those interested in tions were passed, showing, in connection them, and submitted to the legislatures with with those already in evidence, as insisted a view to obtain from such bodies the most upon by the complainant, the existence of liberal grant of privileges which they are a general system for the operation of the willing to give. This is one among many roads owned by the complainant, including reasons why they are to be strictly conthe Euclid avenue and Garden street lines, strued.” Blair v. Chicago, 201 U. S. 400, as a unit, and the necessity existing for 471, 50 L. ed. 801, 830, 26 Sup. Ct. Rep. operating all of the lines in connection with 427. In the case cited this court has had each other for the life of the longest grant. occasion to state the principle of construcAnd it is insisted that this was the ob- tion and to cite some of the authorities vious intention of the council, to be gath- upon which it is based. This has been so ered from the various ordinances, among lately done that it is unnecessary to more them those especially above adverted to. than refer to that case as authority for the
doctrine above stated. Messrs. William B. Sanders, John W. Before proceeding with an examination Warrington, and Andrew Squire for Cleve- of the various ordinances and resolutions land Electric Railway Company.
referred to in the foregoing statement, it Messrs. D. C. Westenhaver and Garfield, is well to say that we do so upon the asHowe, & Westenhaver for Forest City Rail- sumption that the legislature has heretoway Company.
fore granted to the city council of Cleve. Mr. Newton D. Baker for the city of land most comprehensive power to contract Cleveland.
with street railroads within its limits, with
regard to the use of its streets, and the Mr. Justice Peckham, after making the length of time for which such use may be foregoing statement, delivered the opinion granted, not longer than twenty-five years. of the court:
Cleveland v. Cleveland City R. Co. 194 U. S. Out of these various ordinances and res- 517, 533, 48 L. ed. 1102, 1107, 24 Sup. Ct. olutions arise the difficulties suggested in Rep. 756; Cleveland v. Cleveland Electric R. this case. The facts are somewhat compli.Co. 201 U. S. 529, 541, 50 L. ed. 854, 859, 26 cated by reason of their number, and the Sup. Ct. Rep. 513. Therefore, in deciding inferences to be drawn from them are not this case, we assume the validity of the always perfectly plain and certain. The contract, whatever it is, that was made. complainant contends that, by reason of The only question involved herein is one of the action of the city council and the ac- construction and intent. ceptance by the complainant of the various The most important of the many ordiordinances and resolutions adopted by that nances and resolutions relating to the Eucouncil, a valid contract has been entered in-clid avenue line, commencing in 1859, have to between the city and the complainant, by been referred to in the foregoing statement which the right to use the streets named in of facts because of the contention of comthe ordinances by the Garden street branch plainant that the Garden street branch is has been granted to complainant up to July nothing but an extension and, in reality, as 1, 1914; or, if it is mistaken as to that in law, a component part of the Euclid av. time, that then the contract terminates on enue line, and that the Garden street grant the 13th of July, 1913. The city contends is limited and governed by the time of the that neither date is right, but that the con- expiration of the Euclid avenue grant. In tract, so far as it related to the Garden other words, that the grant of 1888 to the street branch, terminated on the 22d of Euclid avenue line of the right to change its March, 1905.
motive power, and extending the terminaThe rules of construction which have been tion of the grant until twenty-five years adopted by courts in cases of public grants from that date, thereby extended the terof this nature by the authorities of cities mination of the grant to the Garden street are of long standing. It has been held branch to the same time, although the whole that such grants should be in plain lan- branch road had been separately and otherguage, that they should be certain and def. I wise provided for, and had never before had the same termination as the Euclid avenue , use the tracks of the Euclid avenue line. line. The grant is to be implied which is The termination of the right was at a difto work such a change in a grant then exist- ferent time from that provided for the ing in specific and direct language. The Euclid avenue line. This use of the Euclid same argument is also set forth in regard avenue tracks for a short distance did not to the ordinance of July 17, 1893, which make the Garden street branch a mere exwill be again referred to.
tension of the former road. Whether auUnder these circumstances it is important thorized by its charter to build the Garden to direct special attention to the Garden street road is not important. It did so, street branch.
and its right to do it was given by an orThe East Cleveland Railroad Company, dinance of the council which has been rechaving built and operated its road through ognized as valid ever since. Because on the various streets mentioned in the ordi- some occasions it has been called a branch nance of 1859, granting it leave so to do, does not alter the weight to be given the became desirous of building another road in facts stated, or turn the branch into connection with the one it was then operat- mere extension where it has been othering, but there was no statute at that time wise uniformly treated. in Ohio permitting the extension of a road It is contended that by the resolution then built, and the company, therefore, in of March 25, 1873, which granted to the 1867 and the early part of 1868, took the East Cleveland Railway Company the right same proceedings to acquire the right to to lay a double track street railroad, interbuild the new road that it had taken to secting with its main line at Erie street build the former, although it did not seek ard Prospect street, and thence through a new incorporation. As a railroad com other streets mentioned in the resolution, pany already existing, it applied to the the Garden street line thereby became an council of the city of Cleveland for leave to extension of the main line, or was recogconstruct a street railroad from the inter- nized as a mere extension. The preamble section of Prospect and Brownell streets, to that resolution recites that the railroad to connect with the main line of its road, company desires to connect the Garden and thence through various streets and street branch with the main line of their along the center of Garden street, to and road at the intersection of Erie and Prosacross Willson avenue, to the easterly pect streets, and to remove the other track boundary of the city. It procured the con- from Brownell street, between Ohio .and sents of the property owners along the Prospect streets, and therefore permission line; notice for the reception of bids was is granted to the company so to do. That published by the city as provided for in resolution provided simply for changing the the statute, and the railroad company made connection of the Garden street branch with a formal bid for the privilege of laying the Euclid avenue line from Brownell street down its tracks through the various streets, to Erie street, and for the taking up of the and named the rates of fare which would track on Brownell street, between Ohio and be charged. That bid was the lowest, if Prospect streets. It did not make the Garnot the only one, made, and it was duly den street branch any more of an extension accepted, and the privilege was granted to of the main line than it had been before. build a railroad in Garden street, and to The branch road certainly did not become operate it for twenty years from the date a part of the main road simply because it of the adoption of the ordinance, January ran in connection with it, or because it 14, 1868, and the company was to continue ran over a small portion of the tracks of to use the western end of the Euclid avenue that road. It remained what is started out road as stated in the ordinance. The ordi- as, a road with a separate route and a difnance was accepted and the road built. At ferent term of life. this time the grant to the Euclid avenue The grant made in 1876 to the company line expired September 20, 1879.
to extend its Garden street tracks from its Referring to the procedure under which then terminus at Baden street, to and along the Garden street branch was created and other streets towards the east, with the the permission of the city council to build right to equip and operate said extension the road obtained, it is plain that the for twenty years, in connection with the branch thus built was not a mere extension said Garden street branch and its main or part of the Euclid avenue line, so that line, had no effect upon the question we are a grant to the latter, necessarily covered discussing. That extension of the tracks the other as an inseparable part of it, but of the Garden street branch spoken of in was a distinct line, with a separate route, the ordinance was also a short one, and with the exception of a short distance at was to terminate at a different time from the west end, where it was permitted to that then existing in regard to the other portion of the Garden street branch. That fisting in regard to the Euclid avenue line. it was to be operated in connection with its It is contended that from the time of the Garden street branch and the main line passage of this ordinance by the council did not make the branch as extended a part and its acceptance by the complainant the of the main line, or alter the fact that the parties thereby agreed that the extension branch was a separate road, although oper-should be operated with the main line, and ated in connection with the main line. It that its grant for such operation should is quite difficult to see why the right to expire with the grant for the main or Euoperate this particular extension should clid avenue line, and that this was in purhave been granted for twenty years or un suance of the plan by the city to have the til 1896, instead of being limited to ter-grants to the two roads expire at the same minate with the branch, but, at any rate, time. And the claim is that the subsequent the grant is in unambiguous terms, and ordinances must be construed in the same states in so many words the length of time manner and for the purpose of carrying out it is to last. Its importance is not very the same scheme. There is here undoubtedgreat, and is entirely effaced by the subsely some room for the contention of comquent ordinance of 1880, which provided for plainant, but we think, upon looking at all the termination of the whole Garden street the facts in connection with this question, branch at the time specified,–1905.
that the intention of the council was not By that ordinance (March 22, 1880) the that way. The Garden street branch, runquestion of the termination of the grant ning from the intersection of Erie and Prosfor the whole Garden street branch was pects streets, towards the east, terminated, distinctly settled. By it the right to ex. at the time of this grant, at Lincoln avenue. tend that branch of its railroad in an east. This made a long line of road. By the orerly direction, on and along Quincy street, dinance it was lengthened from Lincoln avwas given to the company, and the right enue to Woodland Hills avenue,-a compar"to cquip and operate the said extensionatively short extension of track. The right and its Garden street branch” was given granted to the whole branch line as far for the period of twenty-five years from east as Lincoln avenue then terminated on the passage of the ordinance, but without the 22d of March, 1905, and yet, by this increase of fare on any portion. This, of construction of the ordinance of 1885, this course, placed the termination of the whole small extension of track from Lincoln avgrant to the Garden street branch on March enue to Woodland Hills avenue was to ex22, 1905. There is no ambiguity as to this pire September 20, 1904. Why this differgrant, and the termination of the grants to ence? The ordinance did not assume in the two roads was kept apart, one being any way to alter the time of the terminaSeptember 20, 1904, the other March 22, tion of the then-existing grant to the rest 1905.
of the Garden street branch, but it simply Asuch stress is laid by the complainant limited the time of the termination of the on the ordinance of the 9th of February, grant for the extension then given. Hence 1885, which was entitled “An Ordinance to it is difficult to see how any agreement can Permit the East Cleveland Railroad Com- be found to arise from the ordinance for pany to Extend the Garden Street Branch the simultaneous termination of all the of Its Railway.” The company was there grants to both the main line and the Garden by authorized to extend the Garden street street branch. Nor can any general scheme branch from the intersection of Quincy to have the grants of both roads terminate street and Lincoln avenue in an easterly together be evolved from anything done by direction, to Woodland Hills avenue. It the parties up to and including 1885. was to be operated in connection "with said There is nothing in Cleveland v. Clevebranch and its main line and terminating land Electric R. Co. 201 U. S. 529, 539, 50 with the grant for the main line,” but with L. ed. 854, 858, 26 Sup. Ct. Rep. 513, that no increase of fare. It is contended that covers this case. The language of the orthe particular grant mentioned in this ordinance adverted to in that case is to be dinance was to terminate with the grant applied to very different facts from those for the main line, which would make it ter- existing here. We assume the ability of minate September 20, 1904, instead of the council to make such a contract as March 22, 1905. If this were the only ques- complainant contends for herein, but tion, of course, the complainant would not think none such was made in fact. insist that the grant to it should be short- So far as can be determined from this ened six months. But it is cited for the record, there was absolutely no reason for purpose of showing an intention of the terminating the right to use this small council to limit the termination of the Gar- extension of track in September, 1904, while den street branch by the limitation then ex- | the rest of the branch then existing was nut
27 S. C.-14.