Cincinnati v. Cincinnati & Hamilton Traction Co.
245 U.S. 446 (1918)

Annotate this Case

U.S. Supreme Court

Cincinnati v. Cincinnati & Hamilton Traction Co., 245 U.S. 446 (1918)

Cincinnati v. Cincinnati & Hamilton Traction Company

No. 10

Argued January 24, 25, 1916

Restored to docket for reargument June 12, 1916

Reargued October 26, 27, 1916

Restored to docket for reargument May 7, 1917

Reargued October 17, 18, 1917

Decided January 7, 1918

245 U.S. 446

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF OHIO

Syllabus

Corporations of Ohio claimed the right to operate a street railway in Cincinnati according to the terms of various grants, etc., under which it had been built in sections or links. A revocable ordinance of the city council, after reciting that, as to portions of the streets so occupied, "alleged grants" had expired, and on others there never had been any grants and the companies had no longer any right to occupy the same, provided that the companies might continue

Page 245 U. S. 447

to operate, but only from day to day, and subject to new and material conditions, as to fares, transfers, etc.; that should it be adjudged that they were without continuing right in respect to portions only of the streets occupied, the ordinance should be construed to forbid further operation on such portions except on compliance with all of its terms and conditions; that continued operation "on said streets" should be deemed an acceptance by the companies of the ordinance and all its terms; that in case they refused or failed to comply with it on its effective date, the city solicitor should "take such legal proceedings as may be proper and necessary" to enforce its provisions, or to require them "to abandon the streets covered by this ordinance, and to remove their tracks from said streets." Averring that the ordinance impaired and attempted to impair the obligations of the several grants etc., that its enforcement would deprive them of their property without due process or compensation, and that, under it, the city threatened to, and unless restrained would, interfere with and prevent the maintenance and operation of the railway over the routes described in the grants aforesaid and under authority and in accordance with the terms thereof, thus causing irreparable injury, the companies, by their bill, filed in the district court before the ordinance became effective, prayed that it be decreed void and that the city be perpetually enjoined from such interference, in any way, as to the whole and any part of the railway, and from enforcing, or taking any steps to enforce, the ordinance in whole or in part. The city's answer denied jurisdiction, that the bill stated a cause of action, that the companies had any right to operate as to certain portions of the line, that the city would interfere with or prevent the maintenance and operation by plaintiffs of the said railway, or cause any damage or injury to plaintiffs, and averred that enforcement of the ordinance was only authorized, and only would be sought, by due court proceedings. After full hearing, the district court upheld the grants, etc., involving complicated questions, under the laws of Ohio, and granted the injunction as prayed. Held (1) that the jurisdiction of the district court was properly invoked, and that it had power to adjudicate the issues presented, but (2) that, as counsel for the city in this Court had plainly conceded what did not sufficiently appear by the answer, viz, that, except as it authorized proceedings in court. the ordinance could have no effect prior to a judicial determination, and that no other steps could be taken under it, or would be attempted, by the city's officers to enforce it, the decree should be modified so as to exclude any finding upon the validity of the franchises and rights claimed by plaintiffs,

Page 245 U. S. 448

and so as to limit affirmative relief to an injunction restraining the city (a) from taking any steps other than necessary court proceedings to enforce the ordinance prior to final adjudication of the controversies involved, and (b) from ever setting up claim that plaintiffs' continued operation of cars over streets now used, pending such final adjudication, does or will amount to an acceptance of the ordinance or in any way prejudice their rights.

Upon appeal, the cause is subject to review upon both law and facts, and that relief should be granted which is proper upon the case as it develops in this Court.

Modified and affirmed.

The case is stated in the opinion.

MR. JUSTICE McREYNOLDS delivered the opinion of the court.

The Cincinnati & Hamilton Traction Company is owner and the Ohio Traction Company, lessee and operator of an electric railway line extending from Vine Street,

Page 245 U. S. 449

Cincinnati, northward along Erkenbrecher Avenue, Carthage Pike, Wayne Avenue, Springfield Pike, etc., some five or six miles to the city limits. It was built in sections or links under grants, ordinances, permissions, contracts, etc., whose validity, effect, and continuation have given rise to conflicting contentions, based primarily upon different interpretations of statutes and laws of Ohio. April 21, 1914, the city council passed the ordinance copied in the margin. *

Page 245 U. S. 450

Shortly before the ordinance was to become effective, appellee companies -- both Ohio corporations -- filed a bill in the United States District Court, Southern District of Ohio, wherein they set out their interest in the railway, the various grants, ordinances, contracts, etc., under which it had been constructed, together with rights claimed. It then alleged:

"Notwithstanding the contract rights of plaintiffs as hereinabove set forth, the defendant,

Page 245 U. S. 451

the City of Cincinnati, on or about the 21st day of April, passed . . . [the ordinance copied ante]. In and by said ordinance, said city repudiated the grants aforesaid, and thereby impaired and attempted to impair the obligations of the aforesaid contracts and each of them, in violation of Article 1, Section 10, of the Constitution of the United States, and the enforcement of said ordinance will deprive plaintiffs of their property without due process of law and without compensation, in

Page 245 U. S. 452

violation of the Constitution of the United States, and particularly Article XIV in amendment thereto. . . . The defendant, the City of Cincinnati, by its agents and employees, under the pretended authority of the ordinance of the City of Cincinnati aforesaid, threaten to and will, unless restrained by order of this court, interfere with and prevent the maintenance and operation by plaintiffs of said electric street railway over the routes described in the grants aforesaid and under authority and in accordance with the terms and conditions thereof, which will cause great and irreparable injury to these plaintiffs for which they have no adequate remedy at law."

It prayed:

"That the court decree said ordinance passed April 21, 1914, to be null and void, and that the defendant, the City of Cincinnati, and its officers, agents, and employees, be enjoined by a restraining order, preliminary injunction, and final decree, from interfering or attempting to interfere in any way with the maintenance and operation, or either, by the plaintiff, or either of them, of said line of electric street railway or any part thereof, and from enforcing or attempting or taking any steps to enforce the pretended ordinance of the City of Cincinnati aforesaid, or any part thereof, and from taking any action which would alter, impair, limit, or destroy the right and title of plaintiffs under their said grants and contracts."

Answering, the city denied jurisdiction of the court; that the bill stated a cause of action; that complainant companies had any right to operate a railway on Erkenbrecher Avenue or over portions of Carthage Pike or over streets and roads formerly in the Village of Hartwell, etc., and further:

"the defendant denies that, under the authority of said ordinance, or otherwise, it will, unless restrained by this Court, interfere with or prevent the maintenance and operation by the plaintiffs, or either of them, of said electric street railway, or cause any damage

Page 245 U. S. 453

or injury of any kind to the plaintiffs, or either of them, and defendant avers that the enforcement of said ordinance is only authorized and will only be sought by and through an order of a court of competent jurisdiction first had and obtained, and after a hearing on due and reasonable notice to all interested parties."

Having finally heard the cause upon a record presenting many difficult problems arising under local laws, the trial court sustained its jurisdiction, adjudicated in favor of the companies in respect of the grants, ordinances, and contracts relied upon, and granted an injunction as prayed. The city has appealed, and the questions presented below have again been elaborately discussed before us.

There is radical disagreement concerning interpretation and effect of the ordinance of April 21st. Counsel for appellees maintain:

"The city does not seek to eject plaintiffs from the occupancy of any particular part of the streets in question, but undertakes by the ordinance complained of to require plaintiff, in disregard of its rights under existing contracts, some of which the ordinance assumes may be good, either to abandon its line over the route in question, or to operate it on a day-to-day license and at a reduced fare. . . . The question therefore is not whether there is one bad link, but whether there is one good link, because, if there is a good link, the ordinance impairs its obligation."

"All parts of the ordinance go into operation at once at 'the earliest period allowed by law,' which is thirty days after it is filed with the mayor. The day the ordinance takes effect, it gives to passengers the right to a reduced fare and transfers, and at the same time the companies, by operating on the said streets, are deemed to have accepted all the terms of the ordinance, which apply to all the links. This operation of the ordinance, and these results, do not await any litigation or any adjudication of any kind. "

Page 245 U. S. 454

"While Section 5 authorizes and directs the city solicitor in the event of noncompliance to take the proper legal proceedings to enforce the ordinance, they might not be taken, and the operation of the ordinance does not await the beginning or outcome of such proceedings, nor is the city precluded by Section 5 from enforcing it in any other way, by tearing up the tracks or otherwise."

In the brief for appellant, it is said:

"These two provisions [§§ 3 and 5] clearly indicate that the rights of the city must be and will be established only after an orderly procedure through the courts, and it was contemplated and directed that this should be through legal proceedings brought by the solicitor. . . . The fair reading of Section 4 is that the operation of the cars over the portion of the line where it is adjudged appellees have no franchise shall be an acceptance of the ordinance."

During the oral argument here, counsel for the city expressly affirmed that, properly construed and except as it authorized proceedings in court, the ordinance could have no effect prior to a judicial determination of the parties' rights; that, until this was had, no other steps could be taken, or would be attempted, to enforce the ordinance, and noncompliance therewith would in no wise injuriously affect the appellees, and, moreover, that the above-quoted paragraph from the answer was intended to express that view.

We think the jurisdiction of the court below was properly invoked, and that it had power to adjudicate the issues presented. Detroit v. Detroit Citizens' St. Ry. Co.,184 U. S. 368; Owensboro v. Cumberland Telephone Co.,230 U. S. 58.

As the cause is here upon appeal, it is subject to review upon both law and facts; we should grant the relief proper under circumstances now disclosed. Wiscart v. Dauchy, 3 Dall. 321, 327 [argument of counsel -- omitted]; Capital Traction Co. v. Hof,174 U. S. 1, 174 U. S. 37; Daniell's Ch. Pl. & Pr. (5th ed.) *1484, *1489; Elliott v. Toeppner,187 U. S. 327, 187 U. S. 334.

Page 245 U. S. 455

The answer failed to set out with adequate precision, if at all, what counsel now claim were the powers of the city's officers under, and its purposes in respect of, the ordinance; otherwise, a different result might have been reached in the trial court. Accepting and, for all purposes of the cause, relying upon representations and admissions of counsel for the city as above detailed, we conclude that the decree below should be modified so as to exclude from it any finding concerning validity of franchises involved or rights claimed by appellees, and to limit the affirmative relief granted to an injunction restraining the city (1) from taking any steps to enforce the ordinance (except institution of necessary court proceedings) prior to final adjudication of controversies involved, and (2) from ever setting up a claim that appellees' continued operation of cars over streets now used pending such final adjudication does or will amount to an acceptance of the ordinance by appellees, or in any way prejudice their rights.

As modified, the decree below is affirmed. Appellant will pay all costs.

Modified and affirmed.

*

"AN ORDINANCE NO. ___"

"Specifying the terms and conditions upon which the Cincinnati & Hamilton Traction Company and the Ohio Traction Company, as its lessee, may operate street cars on certain streets of the city, and authorizing the city solicitor to take legal proceedings to enforce this ordinance."

"Whereas, the Ohio Traction Company, as lessee of the Cincinnati & Hamilton Traction Company, is new operating street cars on certain streets of the City of Cincinnati; and"

"Whereas, on portions of the streets so occupied and used alleged grants have heretofore expired, and on other portions, including that part of Carthage Pike formerly known as Springfield Pike, there never have been any grants, and said companies have no longer any right to occupy the same: Now therefore"

"Be it ordained by the Council of the City of Cincinnati, State of Ohio:"

"Section 1. That, upon the terms and conditions in this ordinance specified, and upon no other, permission is hereby granted to said the Cincinnati & Hamilton Traction Company and to the Ohio Traction Company, as its lessee, to continue from day to day only from the date on which this ordinance becomes effective to operate street cars on the following streets, to-wit:"

"Erkenbrecher Avenue from Vine Street and Erkenbrecher Avenue to Carthage Avenue; thence north on Carthage Avenue and Carthage Pike (formerly called Main Street) to Lockland Avenue, excepting the portions in the municipalities of St. Bernard and Elmwood place; thence north on Lockland Avenue and Anthony Wayne Avenue to the northern boundary of the city through the district formerly known as Hartwell, and also from the intersection of Anthony Wayne and Woodbine (formerly called Rural) Avenues westwardly over Woodbine Avenue and over De Camp Avenue to Carthage (formerly called Springfield) Pike; thence north on said Carthage Pike to the northern boundary of the city in the district formerly known as Hartwell, on the tracks now existing in said streets."

"Sec. 2. On and after the taking effect of this ordinance, the operation of street cars on said streets shall be subject to the same terms and conditions as existed under the prior alleged grants, if any, so far as not inconsistent with the provisions of this ordinance, and shall be subject to the following conditions:"

"A. That the necessary arrangements be made to operate cars from the aforesaid northern boundary of the city over said streets to Sixth and Walnut Streets in substantially the same manner and with substantially the same frequency as now, and as a continuous line, and that street cars shall be operated."

"B. That, for a continuous trip between any two points between the aforesaid northern boundary of the city and Sixth and Walnut Streets, the fare for each passenger shall not exceed five (5

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