City of Covington v. South Covington & C. St. Railway Company/Dissent Hessin Clarke

Mr. Justice CLARKE dissenting.

I have so recently stated my reasons for not concurring in opinions which seemed to me, by inference and construction, to raise limited, into perpetual, grants of rights in city streets, that I shall not repeat them here (City of Owensboro, Kentucky, v. Owensboro Water Works Co., 243 U.S. 166, 174, 37 Sup. Ct. 322, 61 L. Ed. 650; Northern Ohio Traction & Light Co. et al. v. State of Ohio, decided January 28, 1918, 245 U.S. 574, 38 Sup. Ct. 196, 62 L. Ed. --), but shall confine myself to a brief statement of the facts and conclusions of law which lead me to dissent from the court's opinion in this case.

The opinion of the court begins with the grant to Abbott et al., in December, 1869, but in my judgment that grant cannot be correctly interpreted without beginning five years earlier, in 1864, with an ordinance passed by the city, which is general in its terms and is described in the record of council as 'an ordinance defining the obligations of any company or individual to whom privilege may be granted to use the streets of the city for street railroad purposes.' It is entitled, 'An ordinance prescribing the terms and conditions on street passenger railroads within the City of Covington.' This ordinance contained these provisions:

'This ordinance shall continue and be in force from and after     its passage. All contracts under the provisions of this     ordinance shall be for the term and period of twenty-five      years.'

And so far as the record shows it has never been repealed.

Pursuant to the terms of this general ordinance, a contract was entered into as of March 9, 1865, with the Covington Street Railway Company, giving it the right to operate a street railway on designated streets, again 'for the period of twenty-five years from its date.'

More than four years later, on May 13, 1869, Abbott and others made an application to the council for a franchise and the company holding the prior grant, which was then operating a railway, protested against the making of a grant to Abbott, and warned the city that it claimed the right to operate on all its streets and that another grant could not lawfully be made.

But at the meeting at which this protest was filed, without any special authority from the Legislature, this grant was made to Abbott. It is from the language of this grant that the court derives a perpetual franchise, and it reads:

'Be it ordained by the city council of Covington that all the     authority and right that the city of Covington has the      capacity to be, and the same is hereby granted to E. F.      Abbott et al. *  *  * to construct, hold and operate a street      railroad,' upon designated streets.

I cannot bring myself to think that this is the language men would use who were intending to grant perpetual rights in city streets, but rather it seems to be the cautious describing of what the councilmen thought a doubtful right under a doubtful remnant of authority, remaining after the grant to the other company which was threatening litigation if this further grant were made, and that they thought it subject to the limitation of twenty-five years in the general ordinance of 1864. And be it noted that this grant, made without special authority from the Legislature, is dated December 13, 1869; that the Covington & Cincinnati Street Railway Company, the predecessor of the defendant in error, was not chartered for more than a year after the date of this grant to Abbott, from which all the rights of the defendant in error are claimed to flow; and that it did not acquire the grant until 1875 in which year the first construction work was done under it.

Some twenty years after the grant to Abbott the city of Covington granted, this time to the Cincinnati Covington & Rosedale Company, a franchise which was expressly limited to fifty years and which, recognizing that the general ordinance of December 15, 1864, was still effective, required that the grantee should conform to all the requirements of that ordinance 'except in so far as the same has been repealed.'

In the street railroad case of Louisville City Ry. Co. v. City of Louisville, 8 Bush (Ky.) 415, the Court of Appeals of Kentucky, construing the charter of the city of Louisville, granting jurisdiction over streets, in scope, not less than that granted by the Covington charter, declared:

'Under the general power of a municipal government to control     and regulate the use of the streets of a city, it cannot      grant to any person or corporation the right to lay down a      railway in a street. * *  * The right of the general council      to contract with a railway company grows out of the special      acts of the Legislature heretofore quoted.'

Whether this statement was necessary to the decision of the case then under consideration or not, in the following year it was paraphrased and adopted in a Covington Street Ry. Co. Case, 9 Bush (Ky.) 127, and, almost twenty years after that it was again approved in a Covington Case, 90 Ky. 390, 14 S. W. 361.

Thus, during the entire period covered by the grants here involved, it was the law of the state, as its highest court understood and announced it, that the city of Covington did not have, under its charter, power to make a street railway grant, 'without special authority so to do from the Legislature.'

That this was also the opinion of the Legislature of the state and of that part of the bar of the state concerned with the grants here involved is conclusively shown by the fact that in the charter of every one of the three street railway companies concerned herein there is a special grant of power to the city of Covington to make the contemplated contract for the use of its streets for street railway purposes.

This obscurely worded grant, thus made to Abbott without special legislative authority, is not helped out by subsequent recognition by the city, for we find the parties, almost from the beginning of its term, dealing with each other constantly at arm's length, the city claiming that the grant was, at most, limited to twenty-five years, and the railway company claiming it to be perpetual.

For instan e, as early as 1887, when the right to use electric power was granted, a typical provision was inserted in the ordinance, accepted in writing by the company:

'That nothing in this ordinance shall be construed to nor     shall it give to said railway any further or longer time than      it now has to operate its lines.'

Again, in 1892, for a reduction of fare and other considerations the city agrees 'for the period of twenty years after the acceptance of this ordinance' not to offer for sale any of the rights or franchises of the defendant in error in the said streets; and it was not until after the expiration of this period that the proposition to grant a new franchise was made, which the decision of the court permanently enjoins.

This is sufficient of detail to indicate why I am of opinion that the meager and equivocal grant of 1869 should not be regarded as helped out by the subsequent dealings of the assignees of it with the city.

Under the circumstances thus presented, with limited franchises granted before and after this grant to individuals, but never one unlimited in terms with the city contending always that this franchise was for twenty-five years only, and with the courts, Legislature, and bar of the state united in thinking that there was no power in the municipality to make even a limited street railroad grant without special legislative warrant, I cannot bring myself to consent to construe, as the court does, an obscurely worded clause of a single sentence, found in a grant to individuals, of the right to construct an insignificant horse railroad, which the son of the grantee in an affidavit alleges required an expenditure of only $48,000, so as to impose upon the municipality 'the unspeakable burden' of a perpetual franchise to operate street railroads in its streets.

Fully realizing the futility, for the present, of dissenting from what seems to me to be an unfortunate extension of the doctrine of the Owensboro Case, 230 U.S. 58, 33 Sup. Ct. 988, 57 L. Ed. 1389, I deem it my duty to record my dissent, with the hope for a return to the sound, but now seemingly neglected, doctrine of Blair v. Chicago, 201 U.S. 400, 463, 26 Sup. Ct. 427, 50 L. Ed. 801, declaring that a corporation which would successfully assert a private right in a public street must come prepared to show that it has been conferred 'in plain terms,' 'in express terms,' and that any ambiguity in the terms of the grant must be resolved in favor of the public and against the corporation 'which can claim nothing which is not clearly given.' The reason given by the court for this rule is that 'grants of this character are usually prepared by those interested in them,' and that 'it serves to defeat any purpose, concealed by the skillful use of terms, to accomplish something not apparent on the face of the act.' This is declared to be 'sound doctrine which should be vigilantly observed and enforced.'

Believing that the application of this wise rule to the decree before us must result in its reversal, I dissent from the opinion of the court.

Mr. Justice BRANDEIS concurs in this dissent.