
    Ravenna v. Pennsylvania Company.
    
      Municipal corporations — Power to compel railroad company to maintain, watchman at street crossing.
    
    1. Municipal corporations, in their public capacity, possess such powers and suck only, as are expressly granted by statute, and suck as may be implied as essential to carry into effect tkose which are expressly granted.
    2. A municipal corporation has not the power, by ordinance, to compel a railroad company to maintain, at a street crossing within the corporate limits, a.watchman, for the purpose of giving warning to passers-by of the approach of trains.
    (Decided April 26, 1887.)
    Error to the Circuit Court of Portage County.
    An ordinance was. passed by the council of the village of Ravenna, providing that on any street of the village crossed by the track of any railroad company, when the council shall deem it necessary to require the company to provide protection against injuries to persons and property by the keeping of a watchman, whose duty it shall be to stop all teams and foot passengers by the continuous exhibition of a flag by day and a light by night, whenever a train in motion shall have approached within five hundred feet of such crossing, the council may, by resolution, so declare, and may direct the company, within a time specified in the resolution, to erect and maintain a sufficient safeguard at such crossing, specifying the kind; and that any company neglecting to comply with the resolution shall suffer a penalty of fifty dollars, etc. Subsequently, the council passed a resolution requiring the defendant company to place a watchman at the point where its tracks cross Main street in the village. The company refused to comply. Action was commenced by the village before the mayor to recover a penalty of fifty dollars. This was appealed to the common pleas, where a demurrer to the petition was sustained. On error, this holding was affirmed by the circuit court.
    
      
      P. B. Conant, for plaintiff in error.
    The power of council to pass the ordinance in question is either expressly granted or clearly inferred. Without such express grant or clear inference, I concede council to be without such power. It has no inherent right of legislation. Collins v. Hatch, 18 Ohio, 523; Bloom v. Xenia, 32 Ohio St. 465; Minturn v. Larue, 23 How. (U. S.) 435.
    Such power is conferred by section 1692, subdivisions one and three, of the Revised Statutes.
    The police power of the state is vested in the legislature, and that power can be delegated to municipal corporations. Cin. H. & D. R. v. Sullivan, 32 Ohio St. 158.
    The power to protect, by ordinance, the property of the corporation and the property and lives of its inhabitants, is expressly granted. Revised Statutes, section 1692, sub. 1; and to prevent injury from any thing dangerous, sub. 3.
    It will not do to say that a railroad company is exempt from the power of police regulation because it is a corporation and has been authorized to run dangerous machinery through the town. It stands on no higher plane than any other citizen. It becomes a citizen of Ravenna (B. & O. R. Co. v. Cary, 28 Ohio St. 208), and like all other citizens must be subject to the general laws of the municipality. Cin. H. & D. R. Co. v. Sullivan, supra.
    
    Railroad companies cannot have faculties conferred on them for their own convenience which they may wield to deprive others of acknowledged rights. Marshall v. B. & O. R. Co., 16 How. (U. S.) 327; Cleveland, Col. & C. R. Co. v. Keary, 3 Ohio St. 204.
    The fact that the legislature has expressly authorized municipal corporations to limit the speed of trains and to compel railroad companies to light their tracks (Rev. Stats., sections 2494, 2500) does not operate to exclude the exercise of the broader and more general grant of power conferred by section 1692 of the Revised Statutes. The ordinance in question was a reasonable exercise, of the power granted by the latter section.
    
      
      Ranney & Ranney, for defendant in error.
    The council had no authority to pass the ordinance, and it is, for that reason, absolutely void.
    The authority to pass an ordinance must be expressly granted, or necessarily implied from express grants of authority. Boone on Corp., sec. 287; 3 Wall. 330; Minturn v. Larue, 23 How. (U. S.) 435; Collins v. Hatch, 18 Ohio, 523; Ottawa v. Carey, 108 U. S. 110.
    The powers of a municipal corporation are strictly limited. It has powers which are expressly granted or clearly implied, and no others; and doubtful claims to power are resolved against it. Minturn v. Larue, supra; Collins v. Hatch, supra.
    
    If the claim that full authority to pass the ordinance, contained in subdivision 1 of section 1692 of the Revised Statutes, is well founded, clearly thei'e was no need for the passage of the numerous subsequent subdivisions of section 1692. These subsequent subdivisions, and sections 2494 and 2500 are express provisions from which we may legitimately infer a legislative declaration that these subdivisions one and three do not grant the power sought to be invoked here. Properly construed, subdivision one relates to the power of council to protect property against riots; and subdivision three clearly relates to nuisances.
    It is urged that the defendant does not stand on any higher plane than any other citizen; and as other citizens can be regulated as to speed upon the streets, the defendant can be regulated under the same authority. This can not be true, for in the nature of things the defendant stands upon a different plane. The petition admits — alleges—that the defendant exists, and operates its road under state authority. Even though it employs dangerous means in the legitimate operation of its road, municipal authority cannot abate them. Boone on Corp., sec. 297.
    Nor can municipal authority regulate defendant, or any other citizen, unless the power to do so has been expressly granted. The state has reserved to itself the right to enact police laws, necessary to secure the lives and property of its citizens. Among the powers reserved, and which must inhere in the state, is that of prescribing rules for regulating the running of trains. Lake Shore & M. S. R. Co. v. C. S. & C. R. Co., 30 Ohio St. 604.
    
    The powers claimed by plaintiff are not expressly granted, nor are they clearly implied. From sections 2494 and 2500 of the Revised Statutes, we get the legislative understanding that they have never granted the power sought to be exercised by plaintiff.
   Spear, J.

The question in the case is as to the power of a municipal corporation, by ordinance, to compel a railroad company to station and keep a watchman at points where the tracks cross a street, and impose penalties for neglect to do so.

That the power to compel railroad companies to maintain watchmen at dangerous crossings is in the nature of police power, and that such power exists in the general assembly, may be conceded. But it does not follow that because the legislature has such power it may be exercised by municipal corporations. Such corporations, being created for convenience and economy in government, and to aid the state in legislation and administration of local affairs, arc always subject, in their public capacity, to the control of the state. As a result of this limitation, this corporation cannot possess the power referred to unless the same has been conferred by statute. Indeed, it is conceded by the learned counsel for plaintiff, that the power to pass the ordinance does not exist unless it has. been expressly granted by the legislature, or is clearly implied, and there is no doubt that this is the law. Power to enact such an ordinance would not be inherent in the council. Except as to incidental powers, such as are essential to the very life of the corporation, the presumption is that the state has granted in clear and unmistakable terms all it has designed to grant at all. Doubtful claims to power are resolved against the corporation. Cooley on Constitutional Limitations, 233, 234; Minturn v. Larue, 23 Howard (U. S.) 435; Bloom v. Xenia, 32 Ohio St. 465.

It is contended that subdivisions one and three of section 1692 of the Revised Statutes, grant the power in question. The section referred to grants many general powers to cities and villages. We quote:. 1. To prevent riots, gambling, noise and disturbance, indecent or disorderly conduct or assemblages, and preserve the peace and good order, and protect the property of the municipal corporation and its inhabitants.” “3. To prevent injury or annoyance from anything dangerous, offensive or unwholesome, and to cause any nuisance to be abated.” It seems to us that it is immaterial whether the last clause of subdivision one be treated as confining protection to property, or, as urged by plaintiff’s counsel, it should be construed to read, protect the property of municipal corporations, and the property and lives of its inhabitants,” for it is difficult to see that the plaintiff’s claim would be advanced by the latter construction. The property of the inhabitant is just as much subject to risk when he attempts to drive across a railroad track as his person. However, the point is not whether the village has the right itself to take steps to protect its inhabitants, or their property, but whether it has the power to compel the railroad company to do it. The propositions are essentially different. We may concede the former without being at all aided in the solution of the latter. The same comment applies with equal pertinency to the language of the other subdivision wherein power is given to prevent injury from anything dangerous. It is not enough to show that municipal corporations have been given the power to protect property and life. To maintain this ordinance, it must be shown that they have been given the power to employ the agency here invoked to accomplish the object. If another agency, for instance, the employment of such watchmen by the village itself, would as well reach the same end, it cannot reasonably be said that the power to put in motion the agency here ordered, is clearly implied from the power to accomplish the purpose itself. The stationing of watchmen or policemen at street crossings to protect those driving across, is a familiar sight in cities. No lack of authority to do the same is believed to exist in villages. Municipal corporations are capable of exercising police powers; but when tbe question is whether such an organization has authority to enact a particular ordinance, it must be shown that the power to do the particular thing in the way marked out, has been given, either expressly, or by clear implication. In this connection, it should not be forgotten, that the company, in the crossing of the street, is on an equality with any citizen. The streets are for public use, and the propelling of locomotives and cars across them, as has been held again and again, is a public use.- The company is, therefore, not a wrongdoer in crossing the street. While it can claim no exemption from police regulations to which natural persons are rightfully subjected, it nevertheless, in using the street-crossing, is not in the attitude of asking a privilege of the village, to the granting of which the latter would have the right to attach conditions. It is not claimed that power to compel the company to maintain a watchman is expressly granted by the subdivisions quoted. The authority, if it exists, must therefore, rest on implication. We think it has not been shown that the power in question is essential to carry into effect the general powers which are granted, and that the implication does not arise.

The power sought in this case to be exercised is similar to the power given t-o councils by sections 2494 and 2495 of the Revised Statutes, to compel railroad companies to light tracks running through municipalities. Each is a requirement which compels the company, not simply to use with care the dangerous engines which it propels over its tracks, but to provide and maintain new and separate safeguards for the protection of life and property; in each case the requirement is that the company adopt means outside of those ordinarily in use by it, to provide additional security'. It will hardly be claimed that power to compel lighting would exist in a council but for the express grant contained in the sections referred to. And if this be so, it would, we think, be difficult to demonstrate, that power to compel a watchman exists in the absence of an express grant. The power as to a watchman, as well as that as to lighting, is essentially dissimilar from that to regulate speed, which is instanced by plaintiff’s counsel. The object in the latter case is to be attained by the use by the company of its machinery, and such regulation relates to how the company shall manage its own property when crossing a street of a village, while the requirement of a watchman relates to how it shall compel or induce others to regulate themselves and their property when approaching its track. The object of all three is the same, viz.: security for life and property; but the means to that end are not the same. So, if we should agree with the argument that power to. regulate speed exists by force of section 1692, and independent of the express grant given by section 2500 — and we are not disposed to dispute it— it would not, we think, follow that a like inference would be warranted as to the power to compel a watchman. Indeed, subdivision 13, of section 1692, (which gives authority to prevent fast driving and propelling of vehicles), would seem to authorize councils to regulate sj>eed of trains, and it may be that, but for the limit of the power of regulation in section 2500, its enactment would have been entirely unnecessary.

The case of Bergman v. Cleveland, 39 Ohio St. 651, is cited. This court in that ease held that the legislature, by granting to cities and villages power to regulate ale, beer and porter houses and shops, thereby conferred power to make it an offense to employ females - to wait upon customers with such liquors. With due deference, we must express our inability to see that this holding advances the plaintiff’s claim. The cases are not analagous. If there can be found a statute which indicates that the legislature intended to give to cities and villages general power to regulate railroads within their midst, then the case cited would be in point. The contrary ‘ appears. Power generally to regulate railroads seems to have been reserved by the state to itself, its exercise to be under the discretion of the general assembly. Thus general laws have been passed requiring railroad companies to maintain a signboard at each road crossing; to fence their tracks; to construct cattle-guards; to provide bridge between cars; to provide certain heating and lighting apparatus, etc., etc. Regarding signals, section 3336, Rev. Stats., 83 Ohio L. 153, provides that every company shall attach to each locomotive a bell and a steam whistle, and requires the engineer in charge, on ajtproaching a road crossing or other travelled place, to sound the whistle at a distance of at least eighty and not further than one hundred rods, and ring the bell continuously until the engine passes; these provisions not to interfere with the proper observance of any ordinance passed by any city or village council regulating the management of railroad locomotives and steam whistles thereon within the city or village limits. Having in mind the test hereinbefore indicated, viz.: that grants of power to municipal corporations must be either in express terms, or by clear implication as necessary to carry into effect those expressly granted, and that questionable claims are resolved against the corporation, it may be doubted whether any grant of power is given to councils by this section. But if any is granted, it could have relation only to*the subject-matter of the section, and its extent could not exceed what is necessary to give full effect to the whole section. The purpose of the law is to require the use of steam whistle and bell upon locomotives approaching a road-crossing or other travelled place, and the utmost that can reasonably be claimed for the language used is to give municipal corporations authority to regulate the management of locomotives and steam whistles in those respects within corporate limits. There would be no warrant whatever for the conclusion that the section in any way confers power to require a watchman at such crossings. The other statutory requirements above mentioned control the company when operating its road through municipalities, as in the open country, although' more stringent regulations as to» some of them may be needed within the limits of cities and villages than without. We may perceive no reason why, as to the general regulation of the operation of locomotives and trains through cities and villages, power might not have been safely committed to municipal councils. It is enough to say that, for reasons known to the general assembly, which we are not called upon to inquire into or question, that body has thus far seen fit not to confer that power.

But we are not discussing the question whether the legislature, in the exercise of its broad police power over railroad corporations, which are its creatures, should require watchmen at crossings, or whether power to so provide can be properly delegated to municipal corporations. As stated at the outset, the only question is whether under existing legislation they possess such power. We think they do not, and that the demurrer was properly sustained.

Judgment affirrried.  