Southern Pacific Company v. City of Portland

Appeal from a decree refusing to enjoin the city of Portland from enforcing an ordinance prohibiting the Southern Pacific Company from running steam locomotives or freight cars along 4th street.

It appeared that the Oregon Central R. R. was chartered to build a road from Portland to the California line. The company thereupon purchased a block of land in the city on which to locate its terminals, and applied to the council to designate the street on which the track should be laid. The general statute of the state then of force provided (Code of Oregon, 5077, 5078) that whenever a private corporation was authorized to appropriate any part of any public street within the limits of any town, such corporation should locate their road upon such particular street as he local authorities might designate. But if such local authorities refused to make such designation within a reasonable time when requested, such corporation might make such appropriation without reference thereto.

The bill alleges that on January 6, 1869, 'under and by virtue of the laws of the state and its charter then in effect, the city of Portland duly passed ordinance 599, which provided that—

'Sec. 1. The Oregon Central is hereby authorized and permitted to lay a railway track and run cars over the same along 4th street, from the south boundary line of the city to the north side of G street, and as much further north as 4th street may be extended, upon the terms and conditions hereinafter provided.'



'Section 3. That the common council reserve the right to make or to alter regulations at any time, as they deem proper, for the conduct of the said road within the limits of the city, and the speed of railway cars and locomotive within said limits, and may restrict or prohibit the running of locomotives at such time and in such manner as they may deem necessary.'



'Section 5. It is hereby expressly provided that any refusal or neglect of the said Oregon Central Railroad Company to comply with the provisions and requirements of this ordinance, or any other ordinance passed in pursuance hereto, shall be deemed a forfeiture of the rights and privileges herein granted; and it shall be lawful for the common council to declare by ordinance the forfeiture of the same, and to cause the said rails to be removed from said street.'

The ordinance was accepted and the road was built from the terminals along 4th to Sheridan street, thence south over its private property and the right of way granted by Congress (16 Stat. at L. 94, chap. 69) to McMinnville. From its completion in 1871 to the present time freight and passenger cars drawn by steam locomotives have been constantly operated along 4th street. In 1903 the charter of the city of Portland was amended so as to authorize the granting of street franchises, and it is alleged that the city desired the railroad to take an electric franchise, paying therefor an annual sum. It is further charged that on May 1, 1907, over ther protest of the railroad company, the council passed ordinance 16,491, to go into effect eighteen months after date, by which it was made unlawful for the Oregon Central, its assigns, their lessess, or any other person, to run or operate steam locomotives or freight cars along 4th street. . . between Glisan and the southerly limits of the city, excepting freight cars for the repair or maintenance of the railway lawfully and rightfully on said street. Violations were to be punished by fine or imprisonment, and deemed a forfeiture of all rights claimed by the Oregon Central with respect to the operation of the railway on the street. On November 16, 1908, after the expiration of the eighteen months, a proceeding was instituted in the municipal court against the company and one of its agents, charging that he and it 'did wilfully and unlawfully run and operate steam railway locomotives along 4th street,' contrary to the provisions of ordinance 16,491.

The Southern Pacific, a Kentucky corporation, thereupon filed a bill in the United States circuit court, alleging that the Oregon Central's property had been transferred to the Oregon & California R. R., and that in 1887 the property and this street right had been leased to the Southern Pacific, which had since continuously operated freight and passenger cars with steam power over 4th street.

It averred that the railroad owned no other terminal property than that purchased in 1869 and reached by the tracks on 4th street; that it was impossible to obtain any other terminal within the city accessible to the railroad from the intersection of 4th and Sheridan streets to the south boundary; that cars from Corvallis, on its line running south, could not be brought into the city, and its business as a common carrier conducted, if the ordinance was enforced, except by constructing, at an estimated cost of $911,000, about 10 miles of road from Beaverton to Willsburg, thence across a bridge owned by the Oregon R. R. & N. Co., and thence by the southern terminus of said railroad constructed by the Oregon Central. The bill charged that the ordinance imposed excessive penalties and illegal forfeitures; that it was arbitrary, unreasonable, and oppressive; deprived the company of property without due process of law; interfered with interstate commerce, and impaired the obligation of the contract under which the track had been laid in 4th street.

The city answered, denying that the Southern Pacific owned the property and franchises of the Oregon Central, on the ground that the latter company had no charter right to sell, and also offered evidence to show that when, in 1869, the tracks were first laid on 4th street, there were very few buildings thereon, while it was now one of the principal thoroughfares, upon which many stores, hotels, and public structures have been erected; it proved that the locomotives and cars were much heavier than those in use when Ordinance 599 was passed, and the grade being steep, the puffing, blowing, exhaust, noise, and jar caused by steam locomotives was more disturbing and injurious than where the line is more nearly level. It also proved that the Southern Pacific was then building a cut-off or belt line, by which freight could be carried around the city instead of being hauled over 4th street.

The court held that under the police power, as well as that reserved in ordinance 599, the city could prohibit the use of steam and the hauling of freight cars, the ordinance not being arbitrary in view of the results of hauling locomotives and cars along 4th street, which he found was 'quite steep,. . . and the noise, vibration, smoke, cinders, and soot from the moving steam locomotives and trains seriously interfere with the transaction of public and private business, and are a constant source of danger and inconvenience to the public.' [177 Fed. 963.] He made no finding as to whether the company had other convenient and accessible means of reaching the terminal, for handling through and local freight. But having held that the city had power to pass ordinance 16,491, he dismissed the bill, and the carrier appealed.

Messrs. James E. Fenton, William D. Fenton, Ben C. Dey, Kenneth L. Fenton, and Maxwell Evarts for appellant.

[Argument of Counsel from pages 564-566 intentionally omitted]

Messrs. Frank S. Grant and Lyman E. Latourette for appellee.

Statement by Mr. Justice Lamar:

[Argument of Counsel from pages 566-571 intentionally omitted]

Mr. Justice Lamar delivered the opinion of the court: