Herein the action of the Board of Aldermell of the City of
Raleigh in assuming to grant to a railroad company "permission to
occupy" a sidewalk with a spur track is
held, in the
circumstances stated in the opinion, to have amounted, at most, to
the conferring of a mere revocable license.
Page 242 U. S. 16
The general principle reiterated that what seems on its face a
mere license by a municipality may not be converted into contract
by resort to general implications.
The exception which allows duration and contractual quality to
be attributed by implication alone to particular privileges, whose
continued enjoyment is vitally and essentially related to enduring
powers and duties of a corporate grantee, has no application to a
case like this, where the action of the city, concerning a mere
permission to exercise a facility as a license, occurred long after
the railway corporation was created and established in business,
and was in no way necessary for the discharge of its corporate
functions. Long occupation and use of the spur track for railroad
purposes, with the assent of the city, could not create a permanent
right.
219 F. 573 affirmed.
The case is stated in the opinion.
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
Upon the assumption that contract rights protected by the
Constitution of the United States would be violated, the bill
sought to restrain the enforcement of an ordinance which directed
the removal of a spur track on a sidewalk on a designated street
and block. On the bill, answer, and on agreed facts, the court
refused an injunction on the ground that there was no contract
right in existence, and, treating this conclusion as going to the
vitals of the whole case, dismissed the bill, and a direct appeal
was taken.
Although there are fourteen assignments of error, but one
question arises: was there a contract?, since, leaving out mere
forms of statement, all the assignments concern this single
question, and we come to its solution. In doing
Page 242 U. S. 17
so, to avoid that which is superfluous, we concede, for the sake
of the argument only, that the city had the lawful authority to
make a contract concerning the track on the street and sidewalk in
question. With this argumentative concession, the question. then
is, not what there was power to do, but what was done, and to solve
it requires a brief statement.
In 1835, the Raleigh & Gaston Railroad Company, to whose
rights it is conceded the complainant and appellant succeeded, was
authorized to and shortly afterwards built a railroad from Gaston
to Raleigh, North Carolina. Entering the latter city through its
streets with its consent, and building therein machine shops, a
railroad yard, and other facilities, the main tracks of the
railroad curved into a block which the company had bought and upon
which it established its terminals, bounded on the front or west by
Salisbury Street, on the rear or east by Halifax Street, and on the
north and south by North and Lane Streets. Many years subsequently,
in 1881, on the block just below and on the same side of Salisbury
Street, a cotton compress had been built, fronting on Salisbury
Street and abutting on the sidewalk on that street. In that year,
the railroad company asked permission of the city authorities to
extend a track to and along the sidewalk on the block in front of
the compress, which was granted, the official record of the consent
of the city having been manifested by the following entry in the
minutes of the board of aldermen:
"Upon application of John C. Winder, General Superintendent, the
Raleigh & Gaston Railroad Company was granted permission to
occupy the sidewalk on the east side of Salisbury Street, between
Jones and Lane Streets, for the purpose of running a track."
In virtue of this consent, a spur track projecting from the main
tracks as they curved into the terminal block was built which ran
down to and upon the sidewalk in front of the compress. For
Page 242 U. S. 18
many years, this track was used for business going in and out of
the compress, as well as for the general purposes of the railroad.
In 1906, however, the compress ceased to be operated, and
subsequently (about 1910 or 1911) the railroad company, owning the
block on which the compress was situated, removed the same and
built upon the block a warehouse. It was not possible, however,
from the track on the sidewalk to directly reach such warehouse,
as, along the block where it fronted on Salisbury Street, tracks
were laid between the warehouse and the spur track, which, for the
purposes of the railroad, were depressed below the level of the
street and sidewalk, and thus the spur track on the sidewalk was
only available for parking cars, or as a team track, and was
alternately in use for one or the other of these purposes when the
city adopted the assailed ordinance directing the removal of the
spur track.
Under this statement, it becomes at once apparent that the court
below rightly decided that the contract right asserted had no
existence, since, on the very face of the consent which was given,
a mere right to occupy was conveyed, without any contract as to
time, and which, therefore, taking the best view for the railroad,
amounted to conferring upon it a mere license to put and use a
track upon the sidewalk, and therefore subject to the power of the
city to revoke whenever it deemed the municipal interest required
it to do so.
But the contention is that, although it be conceded that the
well settled rule is that general implications may not be resorted
to for the purpose of converting a grant of a municipality which
is, upon its face, a mere license, into a contract for a stated
period or in perpetuity, nevertheless that rule is subject to a
well defined limitation or exception which, as presented in the
argument in various forms, may be stated as follows: that where
general powers are conferred and duties are imposed upon
Page 242 U. S. 19
a corporation which, from their nature and essential character,
presuppose the right to exert them or the duty to perform them
during a specified time or in perpetuity, and a particular power or
right is conferred on the corporation which has a necessary
relation thereto or an essential connection therewith, although
such particular power or right may not have expressly taken the
form of contract or grant for a stated time or in perpetuity,
nevertheless such result may be implied by considering the
essential relation which the particular power or right granted
bears to the general powers and duties possessed and the necessary
connection between the two for the purpose of giving a common
duration to both.
Louisville v. Cumberland Telephone Co.,
224 U. S. 649,
224 U. S. 663;
Owensboro v. Cumberland Telephone Co., 230 U. S.
58,
230 U. S. 65-66;
Boise Artesian Hot & Cold Water Co. v. Boise City,
230 U. S. 84,
230 U. S. 91;
New York Electric Lines Co. v. Empire City Subway Co.,
235 U. S. 179,
235 U. S.
191-194.
But, while the general rule is well founded and the exception or
limitation by which it is asserted to be qualified is well settled,
it has no relation to the case in hand, since the particular action
of the city in question concerned a mere permission to exercise a
facility as a license, given long after the creation of the railway
corporation, and not inherently or in any degree necessarily
controlling its power to discharge its corporate attributes.
Indeed, so much is this the case on the face of the situation here
presented that it becomes apparent that to apply the limitation to
a case like this would destroy the general rule itself.
The contention that, even though this be the case, inasmuch as
the railroad had for a long time operated the spur track on the
sidewalk and used it for its general railroad purposes with the
assumed knowledge and assent of the city, thereby the existence of
a contractual and permanent right must be inferred, is manifestly
without
Page 242 U. S. 20
merit. Indeed, it amounts to saying that possession under a mere
license was capable of causing that which was revocable and
precarious to become contractual and permanent.
Affirmed.