Grants of franchises are usually prepared by those interested in
them and submitted to the legislatures with a view to obtain the
most liberal grant obtainable, and for this and other reasons such
grants should be in plain language, certain, definite in nature,
and contain no ambiguity in their terms, and will be strictly
construed against the grantee.
Blair v. Chicago,
200 U. S. 400,
200 U. S.
471.
The Ohio Legislature has granted the City of Cleveland
comprehensive power to contract with street railroad companies with
regard to the use of its streets and length of time, not exceeding
twenty-five years, for which such franchise may be granted.
Cleveland v. City Railway Co., 194 U.
S. 517;
Cleveland v. Electric Railway Co.,
201 U. S. 529.
The action of the City Council of Cleveland, and the acceptance
by the Cleveland Electric Railway Company of the various ordinances
adopted by the council did not amount to a contract between the
city and the company extending the time of the franchise involved
in this action, and a later ordinance affecting that franchise
after its expiration as originally granted is not void under the
impairment clause of the federal Constitution.
In the absence of any provision to that effect in the original
franchise, the city granting a franchise to a street railway
company cannot, on the expiration of the franchise, take possession
of the rails, poles and operating
Page 204 U. S. 117
appliances; they are property belonging to the original owner,
and an ordinance granting that property to another company on
payment to the owner of a sum to be adjudicated as its value is
void as depriving the owner of its property without due process of
law.
This bill was filed in the United States Circuit Court for the
Northern District of Ohio on the twenty-first of March, 1905,
against the City of Cleveland and the Forest City Railway Company
for the purpose of obtaining an injunction to restrain the city
from carrying out a certain ordinance relating to the Garden Street
branch of complainant's railroad, passed by the City Council
January 11, 1904, on the ground that it was null and void because
it impaired the obligations of various contracts which the
complainant alleged had been entered into between the complainant
and the city, providing for the use until either July 13, 1913, or
July 1, 1914, of certain streets by the railroad owned by the
complainant, and known as the Garden Street or Central Avenue
branch, and hereafter called the Garden Street branch. The
ordinance granted to the Forest City Railway Company (a stranger to
the original grants) the renewal right to maintain and operate the
existing street railroads through the streets named therein, which
were the same streets theretofore granted to the Garden Street
Railroad. The right was granted upon condition that the grantee
should pay to the owners of the poles and other property being in
the streets an amount to be agreed upon therefor or such sum as
should be finally adjudicated upon by a court. A temporary
restraining order was granted. The defendants made separate
answers, denying the existence of any contract between the
complainant and the city upon the subject of the Garden Street
branch subsequent to March 22, 1905, and the Forest City Railway
Company claimed under the ordinance of January, 1904, the right to
take possession of such Garden Street branch after March, 1905, and
to use the tracks of the complainant's railroad. The case was heard
upon the pleadings and various ordinances and resolutions of the
council of the city.
Page 204 U. S. 118
After hearing, a decree was made by the circuit court (137 F.
111) which decreed that the right claimed by the complainant to
operate its Garden Street branch railroad in the streets named in
the bill expired on the twenty-second day of March, 1905. It was
also decreed that the ordinance of January 11, 1904, was
inoperative so far as it assumed to confer upon the defendant the
Forest City Railway Company any legal right to take the tracks,
poles, wires, and appliances erected and maintained by the
complainant in the streets, because such ordinance authorized the
taking of the property of complainant without due process of law.
The railroad company therefore was enjoined from interfering with
the complainant in the peaceable possession of the property
mentioned, and the city was enjoined from attempting in any manner,
by virtue of the ordinance, to put the defendant the Forest City
Railway Company into possession of the same. From the decree, the
complainant and both of the defendants appealed directly to this
Court, as involving questions arising under the Constitution of the
United States. The complainant's appeal is No.197, and is from that
portion of the decree which adjudges that the right of the
complainant to maintain and operate its Garden Street branch
railroad expired on the twenty-second of March, 1905. The
cross-appeal of the defendants is from that portion of the decree
which enjoins the Forest City Railway Company from taking
possession of the property described, and which also enjoins the
city from in any manner attempting to put that company into
possession thereof. It thus appears that the whole controversy
turns upon the question whether the right of the Garden Street
Railroad terminated March 22, 1905, or lasts until July 1, 1914, or
possibly only until July 13, 1913.
The record shows that there are, among others, two lines of
railroad belonging to the complainant, one of which is known as the
Euclid Avenue, sometimes called the "main" line, and the other the
Garden Street branch. Both lines run from east to west through the
city in different, though generally parallel, streets up to the
point of their intersection at Erie Street and
Page 204 U. S. 119
Euclid Avenue (or Prospect Street) from which point west, for a
short distance, to the public square and Water Street, the Garden
Street branch is authorized to use the Euclid Avenue tracks.
The following (among many other) ordinances and resolutions of
the council of the city were put in evidence on the trial, together
with the various resolutions of complainant, in which it accepted
such ordinances and resolutions. These constitute the case between
the parties, and there is no contradictory evidence. Complainant
contends that the Garden Street grant must be measured in time by
that provided for the termination of the Euclid Avenue grant.
The ordinances and resolutions relating to the Euclid Avenue
line will be first stated. The first is a resolution which granted
to the East Cleveland Railroad Company, a corporation incorporated
February 28, 1859, for that purpose, the right to construct and
operate a railroad from a point on Prospect Street at its
intersection with Erie Street, to the eastern terminus of Prospect
Street, which grant was for the term of twenty years from September
20, 1859. The company, having obtained the necessary consents of
the property owners along the line, duly located, constructed, and
operated the road under that resolution and within a short time
after it was authorized so to do.
This was the commencement of what is known as the Euclid Avenue,
or sometimes (after 1868) the main line of one of the roads owned
now by the complainant.
By ordinance, April 15, 1862, the company was authorized to
extend its line from the intersection of Erie and Euclid Streets
west to the public square.
September 15, 1879, an ordinance was passed which granted a
renewal of the franchise to the East Cleveland Railroad Company to
maintain and operate its whole Euclid Avenue street railroad as far
as Willson Avenue, on the east, for a period of twenty-five years
from September 20, 1879 (September 20, 1904). This ordinance makes
no reference to the Garden Street line, which had then been built
and was in operation, and does not mention any of the streets
through which that line passed,
Page 204 U. S. 120
although the Garden Street line had the right, under the
ordinance of 1868, hereinafter mentioned, to use the tracks of the
Euclid Avenue line from the point of junction therewith westerly to
its terminus.
On the fourth of April, 1883, another ordinance was passed,
granting to the East Cleveland Railroad Company the right to
extend, lay, and operate its double track on Euclid Avenue from the
west line of Willson Avenue easterly to the east line of Fairmount
Street, the right granted to terminate on the twentieth of
September, 1904, "with the said renewal of that part of said
company's line lying west of Willson Avenue." Ordinance of
September 15, 1879, above referred to.
By ordinance of March 15, 1886, another grant was made to the
Euclid Avenue line east of Fairmount Street, which grant was to
cease and terminate upon the twentieth of September, 1904, "as
provided for said company's tracks in Euclid Avenue, west of
Fairmount Street."
In order to change from animal power to electricity an ordinance
was passed July 13, 1888, granting to the East Cleveland Street
Railway Company the right to construct and operate an electric
street railway on Euclid Avenue from Willson Avenue easterly to the
city limits, and on Cedar Avenue from a point near the Cleveland
& Pittsburg Railway, company's right of way in that avenue,
easterly to a point about 1,500 feet east of Fairmount Street. The
permission was given on the condition that the grant was to be
exercised within six months from the passage of the ordinance. The
grant was also upon condition that, if the company, from any cause,
should fail to extend the electric system over its entire main and
Cedar Avenue lines within eighteen months from the date of the
passage of the ordinance, then the ordinance should be void.
Nothing in the ordinance was to be construed as authorizing any
increase in the fare for transportation over any portion of the
company's line. The sixth section of the ordinance stated that the
privilege of constructing the electric system, as provided in the
ordinance, was granted
"in consideration of the improved facilities
Page 204 U. S. 121
hereby contemplated and the large expenditures necessary to
secure the same, and shall be in force for the period of
twenty-five years from and after the date of the passage of this
ordinance, upon its main and Cedar Avenue lines."
The right to change to electric power, as given by the foregoing
ordinance, was confined, it will be observed, to that portion of
the Euclid Avenue line east of Willson Avenue, and on Cedar Avenue
to that part lying between the Cleveland & Pittsburgh Railway
Company's right of way and a point 1,500 feet east of Fairmount
Street. Nothing west of Willson Avenue is included in that
grant.
On May 13, 1889, a resolution was adopted which authorized and
required the railroad company, "as soon as practicable, to extend
the use of such motive power over its main and Cedar Avenue lines
to the westerly termini thereof." This included those lines west of
Willson Avenue, and under the ordinance and resolution the Euclid
Avenue line was changed to an electric street railroad within the
times mentioned in the ordinance and resolution.
There was no extension of time granted by the resolution of 1889
for the termination of the grant on any portion of the Euclid
Avenue line.
On July 17, 1893, the right was given to the company to extend
its road at the intersection of Prospect and Erie Streets to the
intersection of Prospect and Ontario Streets, and also at the
intersection of Superior and Seneca Streets, thence along Seneca,
Lake, and Ontario Streets, and the council imposed upon it the
duty, if required by the council, of operating its cars over the
entire length of any of the lines. Other duties were imposed upon
it. Complainant contends that some part of this ordinance refers to
a portion of the Garden Street extension, and that it requires the
operation of all the Garden Street cars over these tracks, and the
grant is to terminate at the time mentioned in the 1888 ordinance
-- July 13, 1913.
The above list includes the material ordinances and resolutions
pertaining particularly to Euclid Avenue.
Page 204 U. S. 122
After the Euclid Avenue line had been built, the council, on the
fourteenth of January, 1868, passed a resolution granting its
consent to the East Cleveland Street Railroad Company to lay down
its tracks from the intersection of Prospect and Brownell street,
"to connect with the main line of its railroad," running thence
through Garden and other streets to and across Willson Avenue, to
the eastern boundary of the city, during the period of twenty
years. Willson Avenue was then the eastern boundary of the city.
The road could continue to use and occupy the streets, avenues, and
public grounds over which its main line was then constructed and
operated westerly from the junction (at Brownell and Prospect
Streets) of said road with the main line to its westerly terminus,
for the same length of time.
This Garden Street line was thereafter built, and it is asserted
that it was the inception of a new and separate street railroad. It
has been extended at various times since, and forms, with its
various extensions, what is called the Garden Street branch, and is
the railroad in question.
On the thirtieth of March, 1868, the railroad company was
permitted by ordinance of the Village of East Cleveland to
construct a branch railroad on Garden Street, which would form an
extension, in fact of the Garden Street line easterly through the
village to the line of Wade Street. The grant was for twenty years
from the time of the completion of the work, which was to be
completed within five years from the date of the passage of the
resolution granting the right -- March 30, 1868.
On the twenty-fifth of March, 1873, the council passed a
resolution, in the preamble of which it was stated that the East
Cleveland Railroad Company desired and proposed to connect their
Garden Street branch with the main line of their road at the
intersection of Erie and Prospect Streets, and thereupon the
council granted to the railroad company the
"right to lay down a double track street railroad in Ohio street
from their present track in Brownell Street to Erie Street, and in
Erie Street,
Page 204 U. S. 123
from Ohio Street to Prospect Street, to connect with their main
track at this point."
This made a junction at Erie and Prospect Streets, with the
Euclid Avenue Railroad, instead of at Brownell and Prospect Streets
-- a small difference as to length of road.
On the twenty-third of May, 1876, the council authorized the
East Cleveland Railroad Company to extend the Garden Street branch
of its road at the easterly end thereof along Garden Street to
Baden Avenue thence to Quincy, along Quincy to New, and along New
Street to Garden Street, there to connect with the Garden Street
tracks. The ordinance provided that the right therein granted
should continue for twenty years from that date.
This extension placed a track in Quincy Street from Baden to New
Street, which was a very short distance. It did make a different
date for the termination of the grant than was provided for the
rest of the branch, and it was to be operated "in connection with
said branch and its main line." No increase of fare was to be
charged by the company on any part of its branch or of its main
line or extension by reason of the extension.
In the year 1880, on the twenty-second of March, the council
passed an ordinance authorizing the East Cleveland Railroad Company
to extend the Garden Street branch of its railway from the
then-existing track at the intersection of Baden Avenue and Quincy
Street, on and along said Quincy Street, in an easterly direction
to the intersection of Quincy Street and Lincoln Avenue,
"and to equip and operate the said extension and its Garden
Street branch for the period of twenty-five years from and after
the passage of the ordinance."
When this ordinance was passed, the eastern limits of the City
of Cleveland had been extended, so that the territory covered by
the grants to the Garden Street line was at that time included in
the City of Cleveland.
In 1885, February 9, the council passed an ordinance permitting
the East Cleveland Railroad Company
"to extend its
Page 204 U. S. 124
Garden Street branch from the intersection of Quincy Street and
Lincoln Avenue, in an easterly direction, to Woodland Hills avenue,
. . . and equip and operate said extension as a single track
railroad, with all necessary switches, turnouts, and
turntables"
in connection with said branch and its main line, and
terminating with the grant for the main line, but with the express
condition that "no increase of fare shall be charged by said
company on any part of its main line, or on said extension, by
reason of said extension."
On the seventeenth of June, 1887, the council granted another
extension to the Garden Street branch on Garden Street from Baden
Avenue easterly to Lincoln Avenue, the grant to terminate "with the
grant for the Garden Street main line," and no extra fare.
On the tenth of March, 1890, the council passed an ordinance
which "granted the right to operate its Garden Street branch by
electricity" from and to the points named in the ordinance, and
this grant was "to operate by electric power the said Garden Street
branch during the term of its present grant for said Garden Street
branch." Both roads were thereafter operated as electric street
railroads.
On the thirtieth day of March, 1891, another ordinance was
passed, authorizing the railroad company
"to operate a second or additional track in and upon Central
Avenue (Garden Street) from the east line of Willson Avenue to the
Cleveland & Pittsburg Railroad tracks."
It was provided that the "right herein granted shall be valid
until the expiration of the grants for the said company's main
line."
On the twentieth of April, 1891, an ordinance was passed which
authorized the railroad company to "operate a second or additional
track in and upon Quincy Street from New Street to Woodland Hills
avenue." This was part of the Garden Street line. Section 3 of the
ordinance contained the provision that the
"right herein granted shall be valid until the expiration of the
grants for said company's tracks on said Quincy Street east of
Lincoln Avenue; to-wit, July 13, 1913. "
Page 204 U. S. 125
These are the material ordinances which particularly relate to
the Garden Street Railroad.
During March and April, 1893, the complainant herein was
organized as a consolidation of several street railroads, which, it
is enough to say, included, among others, the Euclid Avenue and the
Garden Street lines, and on the twenty-second day of May, 1893, the
consolidated railroad company (this complainant), through its
vice-president, addressed a communication to the council stating
that the various consolidations had been made under advice of
counsel, but inasmuch as some question seemed to have arisen as to
the intention of the company, it was stated that the company did
not claim any rights greater than the constituent companies forming
the organization; that it intended to obey all ordinances to which
each and all the constituent companies were subject, and that it
had, since the consolidation had been effected, issued transfer
checks to all persons desiring them, to enable such persons to have
a continuous ride from any East Side line to any South Side or West
Side line, and from any South or West Side line of the company to
any East Side line, for one fare, and would continue such system of
transfers where it could not better accommodate its patrons by such
through lines as it might establish, and that it disclaimed all
intention of charging more than one fare for any such continuous
ride, "and that its aim has been and will be to give its patrons
vastly improved service and accommodations by reason of such
consolidation."
The council thereupon, by resolution, consented to the
consolidation of the various railroad companies named in the
resolution under the name of the Cleveland Electric Railway
Company, upon the condition that
"only one fare shall be charged for a continuous ride on or over
any line of railway formerly owned by any other of said constituent
companies within the limits of the City of Cleveland, and
passengers on any of such lines paying one fare shall be entitled,
without extra or additional charge, to be transferred to any other
of said lines and have a continuous ride thereon for said single
fare."
The conditions
Page 204 U. S. 126
contained in the resolution were thereafter accepted by the
complainant in writing.
On the nineteenth day of February, 1894, the council adopted
"an ordinance granting permission to the Cleveland Electric
Railway and the Cleveland City Railway Company to extend their
tracks in Willson Avenue."
This avenue runs north and south and crosses many of the avenues
in which some of the constituent companies of the consolidated road
had laid their tracks.
The ordinance granted each railroad company the right to extend
its double track railroad along Willson Avenue from and to the
various points named in the ordinance, and the road was to be
constructed and operated in connection with the existing tracks in
Willson Avenue as a double track street railroad. The two companies
named in the ordinance were to jointly construct and maintain the
road, and each was to have the right to occupy and use the track,
wires, etc., of the other company then in Willson Avenue on such
terms and conditions as the council might deem just and reasonable,
unless the companies should otherwise agree. Provision was then
made for the running of through cars on Willson Avenue between
certain points, and night cars were to be operated by the companies
throughout the entire length of Willson Avenue. A passenger on any
car operated on any part of said Willson Avenue was to have the
right, on the payment of one fare, without additional or extra
charge, to be transferred to any other line of either of said
companies intersecting or coming to said Willson Avenue, and was to
have a continuous ride thereon, with the right, without additional
charge, to be transferred from said second line to a car on any
other line of either of these companies intersecting or coming to
Willson Avenue, and was to be entitled, without additional or extra
charge, to be transferred to the Willson Avenue line and to have a
continuous ride thereon. Regulations were made for the paving of
certain portions of the street by the company under the direction
of the city authorities, and provision was made for widening the
roadway on Willson Avenue
Page 204 U. S. 127
between certain points named, and for setting back curbs,
hydrants, etc., all of which was to be done at the expense of the
companies, which were also to comply with and perform all the
general ordinances of the city relating to street railroads, then
or thereafter in force. By § 10 it was provided that the grant
should be in force until the first day of July, 1914.
On the twenty-fifth of June, 1894, the council passed
"An Ordinance Granting the Cleveland Electric Railway the Right
to Extend and Operate Its Double Track Street Railroad in Quincy
Street from New Street to Willson Avenue."
This ordinance provided for the extension and operation by the
Cleveland Electric Railway Company of a double track street
railroad on and along Quincy Street, from its then present tracks
thereon, westerly to Willson Avenue, connecting by curves with its
Willson Avenue tracks. The sixth section provided that "this grant
shall terminate with the grant for said company's present line in
Quincy Street."
These ordinances and resolutions are those which particularly
relate to the extent of the grants to the railroad company for the
Euclid Avenue and for the Garden Street lines. Other ordinances and
resolutions were passed, showing, in connection with those already
in evidence, as insisted upon by the complainant, the existence of
a general system for the operation of the roads owned by the
complainant, including the Euclid Avenue and Garden Street lines,
as a unit, and the necessity existing for operating all of the
lines in connection with each other for the life of the longest
grant. And it is insisted that this was the obvious intention of
the council, to be gathered from the various ordinances, among them
those especially above adverted to.
Page 204 U. S. 129
MR. JUSTICE PECKHAM, after making the foregoing statement,
delivered the opinion of the Court.
Out of these various ordinances and resolutions arise the
difficulties suggested in this case. The facts are somewhat
complicated by reason of their number, and the inferences to be
drawn from them are not always perfectly plain and certain. The
complainant contends that, by reason of the action of the City
Council and the acceptance by the complainant of the various
ordinances and resolutions adopted by that council, a valid
contract has been entered into between the city and the
complainant, by which the right to use the streets named in the
ordinances by the Garden Street branch has been granted to
complainant up to July 1, 1914; or, if it is mistaken as to that
time, that then the contract terminates on the thirteenth of July,
1913. The city contends that neither date is right, but that the
contract, so far as it related to the Garden Street branch,
terminated on the twenty-second of March, 1905.
The rules of construction which have been adopted by courts in
cases of public grants of this nature by the authorities of cities
are of long standing. It has been held that such grants should be
in plain language, that they should be certain and
Page 204 U. S. 130
definite in their nature, and should contain no ambiguity in
their terms. The legislative mind must be distinctly impressed with
the unequivocal form of expression contained in the grant,
"in order that the privileges may be intelligently granted or
purposely withheld. It is matter of common knowledge that grants of
this character are usually prepared by those interested in them,
and submitted to the legislatures with a view to obtain from such
bodies the most liberal grant of privileges which they are willing
to give. This is one among many reasons why they are to be strictly
construed."
Blair v. Chicago, 201 U. S. 400,
201 U. S. 471.
In the case cited, this Court has had occasion to state the
principle of construction and to cite some of the authorities upon
which it is based. This has been so lately done that it is
unnecessary to more than refer to that case as authority for the
doctrine above stated.
Before proceeding with an examination of the various ordinances
and resolutions referred to in the foregoing statement, it is well
to say that we do so upon the assumption that the legislature has
heretofore granted to the City Council of Cleveland most
comprehensive power to contract with street railroads within its
limits, with regard to the use of its streets, and the length of
time for which such use may be granted, not longer than twenty-five
years.
Cleveland v. Cleveland City Railway Company,
194 U. S. 517,
194 U. S. 533;
Cleveland v. Cleveland Electric Railway Company,
201 U. S. 529,
201 U. S. 541.
Therefore, in deciding this case, we assume the validity of the
contract, whatever it is, that was made. The only question involved
herein is one of construction and intent.
The most important of the many ordinances and resolutions
relating to the Euclid Avenue line, commencing in 1859, have been
referred to in the foregoing statement of facts because of the
contention of complainant that the Garden Street branch is nothing
but an extension and, in reality, as in law, a component part of
the Euclid Avenue line, and that the Garden Street grant is limited
and governed by the time of the expiration of the Euclid Avenue
grant. In other words, that the grant
Page 204 U. S. 131
of 1888 to the Euclid Avenue line of the right to change its
motive power, and extending the termination of the grant until
twenty-five years from that date, thereby extended the termination
of the grant to the Garden Street branch to the same time, although
the whole branch road had been separately and otherwise provided
for, and had never before had the same termination as the Euclid
Avenue line. The grant is to be implied which is to work such a
change in a grant then existing in specific and direct language.
The same argument is also set forth in regard to the ordinance of
July 17, 1893, which will be again referred to.
Under these circumstances, it is important to direct special
attention to the Garden Street branch.
The East Cleveland Railroad Company, having built and operated
its road through the various streets mentioned in the ordinance of
1859, granting it leave so to do, became desirous of building
another road in connection with the one it was then operating, but
there was no statute at that time in Ohio permitting the extension
of a road then built, and the company therefore, in 1867 and the
early part of 1868, took the same proceedings to acquire the right
to build the new road that it had taken to build the former,
although it did not seek a new incorporation. As a railroad company
already existing, it applied to the Council of the City of
Cleveland for leave to construct a street railroad from the
intersection of Prospect and Brownell Streets, to connect with the
main line of its road, and thence through various streets and along
the center of Garden Street, to and across Willson Avenue, to the
easterly boundary of the city. It procured the consents of the
property owners along the line; notice for the reception of bids
was published by the city as provided for in the statute, and the
railroad company made a formal bid for the privilege of laying down
its tracks through the various streets, and named the rates of fare
which would be charged. That bid was the lowest, if not the only
one, made, and it was duly accepted, and the privilege was granted
to build a railroad in Garden Street, and to operate
Page 204 U. S. 132
it for twenty years from the date of the adoption of the
ordinance, January 14, 1868, and the company was to continue to use
the western end of the Euclid Avenue road as stated in the
ordinance. The ordinance was accepted, and the road built. At this
time, the grant to the Euclid Avenue line expired September 20,
1879.
Referring to the procedure under which the Garden Street branch
was created and the permission of the City Council to build the
road obtained, it is plain that the branch thus built was not a
mere extension or part of the Euclid Avenue line, so that a grant
to the latter necessarily covered the other as an inseparable part
of it, but was a distinct line, with a separate route, with the
exception of a short distance at the west end, where it was
permitted to use the tracks of the Euclid Avenue line. The
termination of the right was at a different time from that provided
for the Euclid Avenue line. This use of the Euclid Avenue tracks
for a short distance did not make the Garden Street branch a mere
extension of the former road. Whether authorized by its charter to
build the Garden Street road is not important. It did so, and its
right to do it was given by an ordinance of the council which has
been recognized as valid ever since. Because on some occasions it
has been called a branch does not alter the weight to be given the
facts stated, or turn the branch into a mere extension where it has
been otherwise uniformly treated.
It is contended that, by the resolution of March 25, 1873, which
granted to the East Cleveland Railway Company the right to lay a
double track street railroad, intersecting with its main line at
Erie Street and Prospect Street, and thence through other streets
mentioned in the resolution, the Garden Street line thereby became
an extension of the main line, or was recognized as a mere
extension. The preamble to that resolution recites that the
railroad company desires to connect the Garden Street branch with
the main line of their road at the intersection of Erie and
Prospect Streets, and to remove the other track from Brownell
Street, between Ohio and Prospect Streets,
Page 204 U. S. 133
and therefore permission is granted to the company so to do.
That resolution provided simply for changing the connection of the
Garden Street branch with the Euclid Avenue line from Brownell
Street to Erie Street, and for the taking up of the track on
Brownell Street, between Ohio and Prospect Streets. It did not make
the Garden Street branch any more of an extension of the main line
than it had been before. The branch road certainly did not become a
part of the main road simply because it ran in connection with it,
or because it ran over a small portion of the tracks of that road.
It remained what is started out as, a road with a separate route
and a different term of life.
The grant made in 1876 to the company to extend its Garden
Street tracks from its then terminus at Baden Street, to and along
other streets towards the east, with the right to equip and operate
said extension for twenty years, in connection with the said Garden
Street branch and its main line, had no effect upon the question we
are discussing. That extension of the tracks of the Garden Street
branch spoken of in the ordinance was also a short one, and was to
terminate at a different time from that then existing in regard to
the other portion of the Garden Street branch. That it was to be
operated in connection with its Garden Street branch and the main
line did not make the branch as extended a part of the main line,
or alter the fact that the branch was a separate road, although
operated in connection with the main line. It is quite difficult to
see why the right to operate this particular extension should have
been granted for twenty years or until 1896, instead of being
limited to terminate with the branch, but at any rate, the grant is
in unambiguous terms, and states in so many words the length of
time it is to last. Its importance is not very great, and is
entirely effaced by the subsequent ordinance of 1880, which
provided for the termination of the whole Garden Street branch at
the time specified -- 1905.
By that ordinance (March 22, 1880), the question of the
termination of the grant for the whole Garden Street branch was
distinctly settled. By it, the right to extend that branch of
its
Page 204 U. S. 134
railroad in an easterly direction, on and along Quincy Street,
was given to the company, and the right "to equip and operate the
said extension and its Garden Street branch" was given for the
period of twenty-five years from the passage of the ordinance, but
without increase of fare on any portion. This, of course, placed
the termination of the whole grant to the Garden Street branch on
March 22, 1905. There is no ambiguity as to this grant, and the
termination of the grants to the two roads was kept apart, one
being September 20, 1904, the other March 22, 1905.
Much stress is laid by the complainant on the ordinance of the
ninth of February, 1885, which was entitled "An Ordinance to Permit
the East Cleveland Railroad Company to Extend the Garden Street
branch of Its Railway." The company was thereby authorized to
extend the Garden Street branch from the intersection of Quincy
Street and Lincoln Avenue in an easterly direction, to Woodland
Hills Avenue. It was to be operated in connection "with said branch
and its main line and terminating with the grant for the main
line," but with no increase of fare. It is contended that the
particular grant mentioned in this ordinance was to terminate with
the grant for the main line, which would make it terminate
September 20, 1904, instead of March 22, 1905. If this were the
only question, of course, the complainant would not insist that the
grant to it should be shortened six months. But it is cited for the
purpose of showing an intention of the council to limit the
termination of the Garden Street branch by the limitation then
existing in regard to the Euclid Avenue line. It is contended that,
from the time of the passage of this ordinance by the council and
its acceptance by the complainant, the parties thereby agreed that
the extension should be operated with the main line, and that its
grant for such operation should expire with the grant for the main
or Euclid Avenue line, and that this was in pursuance of the plan
by the city to have the grants to the two roads expire at the same
time. And the claim is that the subsequent ordinances must be
construed in the same manner
Page 204 U. S. 135
and for the purpose of carrying out the same scheme. There is
here undoubtedly some room for the contention of complainant, but
we think, upon looking at all the facts in connection with this
question, that the intention of the council was not that way. The
Garden Street branch, running from the intersection of Erie and
Prospects Streets towards the east, terminated at the time of this
grant at Lincoln Avenue. This made a long line of road. By the
ordinance, it was lengthened from Lincoln Avenue to Woodland Hills
avenue -- a comparatively short extension of track. The right
granted to the whole branch line as far east as Lincoln Avenue then
terminated on the twenty-second of March, 1905, and yet, by this
construction of the ordinance of 1885, this small extension of
track from Lincoln Avenue to Woodland Hills avenue was to expire
September 20, 1904. Why this difference? The ordinance did not
assume in any way to alter the time of the termination of the
then-existing grant to the rest of the Garden Street branch, but it
simply limited the time of the termination of the grant for the
extension then given. Hence, it is difficult to see how any
agreement can be found to arise from the ordinance for the
simultaneous termination of all the grants to both the main line
and the Garden Street branch. Nor can any general scheme to have
the grants of both roads terminate together be evolved from
anything done by the parties up to and including 1885.
There is nothing in
Cleveland v. Cleveland Electric
Railway, 201 U. S. 529,
201 U. S. 539,
that covers this case. The language of the ordinance adverted to in
that case is to be applied to very different facts from those
existing here. We assume the ability of the council to make such a
contract as complainant contends for herein, but we think none such
was made in fact.
So far as can be determined from this record, there was
absolutely no reason for terminating the right to use this small
extension of track in September, 1904, while the rest of the branch
then existing was not to terminate until six months later. It cut
up the branch line in a way which it is impossible from this record
to give any reason for, and accordingly, under
Page 204 U. S. 136
the then-existing circumstances, it might be argued that the
words "terminate with the grant for the main line" did not mean the
Euclid Avenue line, but it referred to the Garden Street branch,
which was, as a matter of fact, the main line so far as concerned
the small extension of the track from Lincoln Avenue to Woodland
Hills avenue. To terminate the grant for the extension at the same
time with the grant for the line thereby extended would be the most
obvious and natural course to pursue. It is true the ordinance
itself recognizes the "branch and its main line" as constituting
two different lines, and provides that the grant is to terminate
with the grant for the main line. And yet the real meaning of the
ordinance, when regarded in the light of the facts then existing,
becomes, to say the least, ambiguous. The general provision for the
termination of the grant for the whole Garden Street branch, as
made in 1880, ought not to be expunged by an implication arising
out of such doubtful language as is found in this 1885 ordinance.
But if otherwise, it results only that the particular extension
expired in September, 1904, with the grant to the Euclid Avenue
line, which at that period, expired on that date.
In 1887, June 17, an extension of the Garden Street branch was
granted, which, by the terms of the ordinance, was to terminate
"with the grant for the Garden Street main line," without increase
of fare being charged. Here, the council, it will be observed,
expressly referred to the Garden Street branch as the main line,
and it is undoubtedly plain that it was properly so referred to. In
extending the branch, and with reference to the extension, the
branch would naturally be regarded and spoken of as the main line.
If not done in all cases, it is somewhat difficult to find any
reason for it.
Again, by an ordinance passed March 10, 1890, granting leave to
change the motive power on the Garden Street branch, the right was
given to operate that branch by electric power "during the term of
its present grant of said Garden Street branch." The "present
grant" for the Garden Street branch
Page 204 U. S. 137
was that which was granted in March, 1880, which was to
terminate in twenty-five years, or March 22, 1905. Here was a clear
recognition of the time when that grant expired, and there had been
no ordinance or resolution of the council since 1880 which, in our
opinion, changed the termination of that grant. It is an entire
mistake to say that at this time the right to operate the Garden
Street tracks terminated at the same time with the right of the
company to operate the Euclid Avenue line, or that the Garden
Street branch was but an extension of that line.
On the thirtieth of March, 1891, the right was granted to
construct and operate a second or additional track upon Central
Avenue (Garden Street) from the east line of Willson Avenue to the
Cleveland & Pittsburg Railroad tracks. It was provided in that
ordinance that the right therein granted should be for and until
the expiration of the grants for the said company's main line. Here
again the question arises, what was the meaning of the expression
"main line" as used in this connection? The ordinance allowed a
second or additional track in a street in which the company then
had the right to use, and was using, a single track. So far as that
extended grant was concerned, the main line was the rest of the
Garden Street branch, and the same observations that we have made
heretofore in regard to the main line are operative here.
It cannot be possible that it was intended to limit the right to
use the second or additional track, in the portion of the street
mentioned, to a different time than that which existed with
relation to the first track laid down by the company in the same
street. Of course, the two grants were meant to terminate at the
same time.
At this time, the grant to the company's Euclid Avenue line had
been extended so that it did not expire until July 13, 1913. Can it
be supposed that the council intended that this short length of
road, in which a second or additional track was to be laid, was to
be operated with two tracks until 1905, and after that with one
track until 1913? We think such a construction
Page 204 U. S. 138
is not permissible, and that what is meant by the language,
"main line," in that ordinance, means the line which is the main
line with reference to the extension therein granted -- namely, the
Garden Street branch, and not the Euclid Avenue line.
The ordinance of the twentieth of April, 1891, is somewhat
important. It granted the East Cleveland Railroad Company
permission to lay an additional or second track in Quincy Street,
from New Street to Woodland Hills Avenue. That street at the point
indicated is part of the Garden Street branch, and, as compared
with the rest of the Garden Street branch, is a very small portion
thereof, and the ordinance only grants the right to lay an
additional track. The right granted was, by the terms of § 3, to
"be valid until the expiration of the grants for said company's
tracks on said Quincy Street, east of Lincoln Avenue, to-wit, July
13, 1913."
It is said that the council, in such ordinance, expressly
authorizes the continuation of the operation of this Central Avenue
(Garden Street) extension until July 13, 1913, the date of the
expiration of the Euclid Avenue line of the company. But the
language used in this ordinance as to the time of the expiration of
the grant for the company's tracks on Quincy Street, east of
Lincoln Avenue, is a clear mistake of fact. The grant, it will be
observed, is not in terms an extension to July 13, 1913. The
reference to that date is but the expression of an opinion that the
date named is the true time of the termination of the Quincy Street
grants. It is not a grant extending to that date, unless the
previous grants are limited to that time. Now, on April 20, 1891,
the grants on Quincy Street, east of Lincoln Avenue, in fact
terminated either in 1904 or 1905, depending upon the construction
of the language of the original grant in Quincy Street, made in
February, 1885. That was a grant which was to expire with the
termination of the grant for the main line. For the reasons already
given, we think that that language meant the Garden Street branch,
which was the main line as to that extension, and that it therefore
expired
Page 204 U. S. 139
in 1905, March 22. There was no subsequent legislation which
extended that grant beyond that time.
But if it be assumed that the grant for the company's tracks on
Quincy Street, east of Lincoln Avenue, was to terminate with the
grant for the Euclid Avenue line as the main line, it must be
recollected that that grant on Quincy Street was made February 9,
1885, to the Garden Street branch, and at that time the grant to
the Euclid Avenue line terminated in September, 1904. The grant of
1885 was not made to terminate with the grant for the main line, as
that main line might thereafter be extended, but it referred to
that grant as it then existed, and it was to be measured by such
existing grant, and not by any subsequent extension which might be
granted to the Euclid Avenue line.
Nor do we think the time for the termination of the Garden
Street branch was in any degree affected by the consolidation of
the various roads in 1893. The communication from the railway
company, through its vice-president, May 22, 1893, states
distinctly that it,
"does not claim any rights greater than the constituent
companies forming the organization, and that it intends to obey all
ordinances to which each and all of the constituent companies were
subject."
Its intention to issue transfer checks, so as to have a
continuous ride for one fare, gave no greater rights to the company
than it theretofore had, nor did the resolution of the council,
consenting to the consolidation on condition that but one fare
should be charged for a continuous ride, give any greater rights to
the consolidated company than each of the constituent companies had
theretofore enjoyed. The consolidation does not require, in order
to comply with the conditions specified in the resolution
consenting to the consolidation, that the consolidated companies
should be permitted to operate until the expiration of the longest
grant to any of the companies. At the expiration of the grant to
the Garden Street branch, the operation of that road might
terminate, while the operation of the rest of the consolidated
roads could go on perfectly well. To hold that, by virtue
Page 204 U. S. 140
of the consolidation, upon the conditions stated, there was an
implied extension of the grant to the Garden Street branch of at
least eight years, is to violate the rules of construction above
referred to in regard to grants of this nature.
It is also strongly urged by the complainant that the ordinance
passed soon after the consolidation ordinance --
viz., the
ordinance of July 17, 1893 -- not only imposed additional burdens
on the consolidated company, but that the ordinance relates to a
portion of the line originally constructed as part of the Garden
Street branch, and that it also required the operation of all the
Garden Street cars over these tracks, so that the council
legislated as to the operation of the tracks upon Garden Street and
provided that such operation should continue until July 13, 1913.
It is true the ordinance provided that the grant therein made
should be limited to the above date, and there were certain
conditions attached to the making of the grant, but it is quite
plain to us that the ordinance could not be read as thereby
extending the time for the termination of the Garden Street branch
without a most violent implication, based upon a very small
foundation. This is made clear when it is seen that the streets
through which the ordinance provides for extending the double track
railroad formed no part of the line originally constructed as part
of the Garden Street branch. The latter road was permitted to use,
for a short distance, the tracks of the Euclid Avenue line from a
point at the junction of Brownell Street (subsequently made Erie
Street) with Prospect Street, west to the public square. But that
portion of the track of the Euclid Avenue line was never part of
the line originally constructed for the Garden Street branch, nor
did it become such because subsequently the branch road was
permitted to use it for the passage of its cars to the public
square. It is quite clear, therefore, that the limitation of the
time for the termination of the grant provided for in the sixth
section of the ordinance was not also an extension of the time for
the termination of the separate grant to the Garden Street branch
from 1905 to 1913.
The same may be said of the ordinance of February 19, 1894,
Page 204 U. S. 141
extending the tracks in Willson Avenue. While the council
consented to the extension by the complainant and the Cleveland
City Railroad Company of the line of railway in Willson Avenue, and
also to the operation of that line in connection with other lines
of the consolidated company, which included the Garden Street
branch, yet it cannot be held that there arose from that ordinance,
when accepted by the company, a contract which should extend the
time on all of the roads until the expiration of the grant
contained in that ordinance, July 1, 1914. By such means, an
implied extension of time, affecting over 200 miles of track, as is
stated, would be accomplished by making these conditions in regard
to the Willson Avenue grant a substitute for a grant, in plain
language, affecting the Garden Street branch. On the contrary, we
think that the effect of that ordinance was simply to make it
necessary for the Garden Street branch and the other roads also, to
comply with the conditions set forth in the ordinance until the
expiration of their respective and existing grants, but that
ordinance did not thereby extend the various other railroad grants
by implication. There is no such connection between the various
roads as to make it necessary, in order to operate one, that all
the others should be in operation as a unit, and as comprehending
one indivisible system. There is nothing in this record which shows
any difficulty whatever in operating the Garden Street branch as
separate from the rest of the so-called system, or in operating
that system separate from the branch. If the council had intended
to extend the time of the termination of the various grants to
these railroads, it surely would have said so, and not left it to
such vague and uncertain presumptions.
The chief importance of the various ordinances and resolutions
for the extension of the Garden Street branch, coupled with the
user of the tracks of the Euclid Avenue line by the branch road
from Erie Street west to the public square, and providing for but
one fare over the whole road, is to strengthen, if possible, the
contention of complainant that such branch has always been treated
by the city and the company as a mere
Page 204 U. S. 142
extension of the Euclid Avenue line, and to be operated in
connection with it, so that a grant extending the time of the
termination of the latter line included thereby the Garden Street
branch. We think the contention is not justified by the facts. The
whole history of the branch line shows differently. Even in the
important matter of a change of motive power, the Euclid Avenue
line was provided for in 1888 and 1889, while there was a separate
and distinct provision made for the Garden Street branch in 1890,
and a statement therein made that the permission was granted to the
Garden Street branch during the term of the present grant to said
branch.
A careful examination of the whole record leads us to the
opinion that there is no error therein so far as the complainant's
appeal is concerned, and the decree upon its appeal is
Affirmed.
Upon the appeal of the defendants, we think little need be said.
The defendants insist that, upon the termination of the grant to
the Garden Street branch, the rails, poles, and other appliances
for operating that road, and then remaining on the various streets,
became the property of the city, or at least that the city had the
right to take possession of the streets and of the rails, tracks,
etc., therein existing. We agree with the court below in the
opinion that the title to the property remains in the railroad
company which had been operating the road, and we are of opinion
that the Forest City Railway Company had no rights in the streets
so far as to affect the right of the complainant to its property
then existing in such streets. How that property may be disposed of
is not now a matter before this Court. We only hold that the
defendant company cannot avail itself of the provisions of the
ordinance of January 11, 1904, so far as taking possession of the
property of the complainant is concerned.
The decree upon the defendants' appeal is also
Affirmed.
