
    City of Mobile v. Louisville & Nashville Railroad Company.
    
      Bill by City Against Railroad Company to Open Certain Streets.
    
    1. Limitation of authority of city over its streets. — -In the absence of legislative grant, a city has no power or authority by contract or ordinance to confer upon individuals or corporations the right to obstruct its streets and public highways, or to grant • franchises'and privileges in the same that tend to im..pair the public use for which they were dedicated, or intended.
    2. Same; grants to municipal corporations construed strictly. — In , a legislative grant of powers to corporations, such as are not expressly or by clearest implication granted, are taken to be withheld. And unless the power be clearly and unequivocally expressed in the charter or conferred by statute, a municipal corporation cannot authorize a use of its public highways by persons or corporations in a manner that will interfere with the use thereof by the general public; a fortiori may not such corporation authorize the total obstruction of its streets by the erection' of buildings therein, or the inclosure of the same. It seems to be a cardinal rule of construction of legislative grants, of franchises or powers to persons or corporations to construe the grant strictly in favor of the sovereign and against the grantee.
    3. Constitution; section 2, Art. IV of Constitution of 1SG5 construed. Section 2 of Art. IY of the Constitution of 1865, which provides that each law shall embrace one subject which shall be described in the title, is mandatory; and an act of the legislature passed under that constitution, which contains two subjects, or which, after providing for certain definite legislation, contains sections not connected with that subject which would never be suggested to the legislative mind from reading the caption or hearing it read, is'void. ’
    4. Act of legislature construed. — An act of the legislature which places the wharves of a city in the hands of trustees to lease the same for the benefit of the bondholders named in the act, does not prevent the city having authority under its charter from filing its bill to remove obstructions from the streets down to the wharf line, if no further.
    
      5. Whether the legislature has power to authorize the obstruction of the public streets of an incorporated city or town, query.
    6. Private act of legislature viust be pleaded. — A local and private act of the legislature in order to be considered by the court for any purpose, must be brought before the court by proper pleading; it is not an act that the court can take judicial notice of. ‘
    Appeal from Mobile Chancery Court.
    Heard before 1-Ion. W. II. Tayloe.
    The facts of this case are stated in the opinion.
    B. B. Boone, for appellant.—
    (1). A municipal cor pora ti on cannot give a valid permission to any one to occupy the streets or sidewalks with continuing erections, or other obstructions, without express poAver conferred, by statute in clear and unequivocal terms. — (/... v. Fisher, 2 Crunch 390; Commonwecilth v. Rush, 1 4' Pa. 193; (lushing v. Boston, 128 Mass. 330; Daly v. Qa. Bó. R. R. On., 12 Am. State Bpts. 288; Seifert v. Broolcly, 101 N. Y. 136; Morse v. Noreester, 139 Mass. 389; Railroad Co. v. Bingham, 87 Tenn. 528; Birmingham Street Railroad Cases, 79 Ala. 472; Port of Mobile v'..L. cG N. R. R. Co., 84 Ala. 121. (2). Grants of poAver to municipalities must be strictly construed. — Mintnm v. Larne, 23 Howard 436; Railroad Co. v. Canal Com’r, 21 Penn. St. 22; Bridge v. Bridge, li Peters 420 ;Dillon on Municipal Cor., 3 ed., p. 118; Porter v. Railroad Co., 64 Mo. 158. (3). The act entitled “An act to amend sections 16' and 22 of an act to incorporate the New Orleans, Mobile & Chattanooga Eailroad Company,' approved November 24, 1866, and to add additional sections thereto,” is 'unconstitutional. — Ex parte Cowert, 92 Ala. 100;' Woolf y. Taylor, 98 Ala. 254; Ex parte Gayles, 108: Ala. .514; Cooley on Con. Dim., 5 ed., p. 174. (4)'. Section 33 of an act approved February 24, 1881, does not preclude the complainant from maintaining this bill. — Webb. y. City of Deniopolis, 95 Ala. 131; 3 Dillon Muni'c.' Cor.',',2 ed., § 297; People v. Lambier, 5 Denio'9. ' ' " "
    Gregory L. Smith, contra. —
    The'amendatory act' of Nov. 24, 1866, does not violate the constitution. Had section 5, A\rliich, it is contended, is not embraced in the title, been embraced in tlie original act chartering the company it would have been part of the general subject matter of the act, sufficiently expressed in the title, and would have complied with the constitution. — The State ex rel. Rogers, 107 Ala. 451; Ex parte Pollard, 40 Ala. 95; Loekhard v. City of Troy, 48 Ala. 479. (2). The test is not whether treating the act as an independent act it contains more than one subject and whether that subject is clearly expressed in the title, but whether treating it as a part of the original act does it add an additional subject matter to that act and is the subject of the act clearly expressed in the title. — Undemoood v. Mo-Duff ee, 15 Mich. 566; Roby Mayor v. Shepard, 26 S. E. 279 Commonwealth v. Brown, 21 S. E. 360; State ex rel. Watson v. Algood, 10 S. W. 310'. (3). The legislature can authorize a city to grant away or abandon a street in so far as the public, use thereof is concerned. — Perry v. Neio Orleans M. & O. R. R. Go., 55 Ala-. 420; 2 Dillon § 66. (4). And as the city of Mobile had legislative authority to grant the use of the streets to the railroad, the occupancy for twenty years would raise a presumption of an. ordinance granting the right even if no such ordinance could have been produced. — Matthews v. McDado, 72 Ala. 389; Semple v. Glenn, 91 Ala. 260.
   DOWDELL, J.

— The bill in this case is filed by the city of Mobile, a municipal corporation under the laws of Alabama, against the Louisville & Nashville Railroad Company, a corporation chartered under the laws of Kentucky and doing a railroad business in the State of Alabama and in the city of Mobile, as successor to the rights of the New Orleans, Mobile & Chattanooga Railroad Company, a corporation chartered by the State of . Alabama. It is averred in the bill that the complainant is the successor to the rights of the town and city of Mobile, in regard to public streets, as derived from its foundation by tlie French in 1711, through the English and Spanish regimes and the American occupation in 1814, down to the present time, under various and sundry corporate names. It is charged that’among such • rights, there was invested in the inhabitants, or sovereign in trust for them, the ownership of the streets and full right of access to the shores and waters of the Mobile Liver; that public maps, whether French, English, Spanish or American, recognized and showed such dedication of the shores to the public, and the East and West streets down to the channel, as in use at the respective times. It is charged in particular that what are now called Government, George, Charleston, Savannah and Augusta streets are and long have been public streets, and were, until recently, open and publicly used to tidewater, and are so shown on all early public maps. Government and Church streets were parts of the esplanade of the fort founded hv the French, existing under different names until 1812, and at the eastern or river end fully dedicated and used for landing and street purposes during that period; that Charleston, Savannah and Augusta streets were dedicated and accepted under their names between 1830 and 1837; that the original shore line was at or near the present Water street, but it is alleged that early in American times and largely before 1830 the city front was advanced out eastward]y, to and beyond Commerce street from at least St. Louis street .on the north to Monroe street on the south, and later the city was built out further south, the streets being built out in ratio by the municipal authorities and laid down on the said maps. Copies of said maps were attached as exhibits to the bill. All of said streets named in the bill and exhibits, it is charged, were used by the public, for many years prior to 1869, and were recognized as public streets to the water’s edge; that to the river front is and has always been due the commercial importance of Mobile. It is further alleged and charged that in or about 1866 to 1871, the New Orleans, Mobile & Chattanooga Railroad Company was projected and built through Mobile to the southwest, and its projectors obtained, or pretended to obtain certain alleged franchises from the then existing municipal authorities, especially in 1870, the alleged right to enclose a tract extending east of Commerce street to the river, and running from a line 100 feet south of the north side of Government street southwardly almost to Monroe street, as it had, also in 1869, pretended to obtain the alleged right to enclose from Charleston street south to Elmira and extending from Royal street to the river. Acting thereunder or otherwise said Railroad Company enclosed a portion of Government street and all of Church street east of Commerce street, and also Augusta and Savannah streets from Royal street to the Mobile river, building on much of the land depots and shops-; but it is charged in the bill that said municipal authorities had no constitutional right to make such pretended grant or grants and that such action ivas illegal and ultra viren. It is shown- that the defendant has succeeded to such enclosures and purprestures and is in the use or enjoyment thereof, except the east half of Water street between Charleston and Elmira, which was surrendered to the city by agreement in 1880, and still claims to own the sainé.-1 It is also shown by the bill that tidewater formerly came up to Water street at what is now its intersection with Charleston street, and that as the land ivas reclaimed east of Water ' street, the - said Charleston street ivas extended also eastwardly by public use and the bmps; that recently, within three years past, the defendant enclosed Charleston street east of Water street, and by itself'or tenants erected buildings thereon without authority and maintains the same. It is also charged that the use of the portions of Government and George street's 'east of Commerce street, and of Charleston street east of Water street, and of Augusta and Savannah streets between Royal and Water streets, denies them to the public, and is an Unlawful appropriation of public property to private use, and constitutes a nuisance, affecting complainant and the public. - It is also shown that it amounts to' depriving the public of the river end of at least five important streets and the appropriation of them to one corporation; that if only the trustee for the bondholders, under the act of Feb. 24th, 1881 (SessionActs 1880-1, p. 102), can act as to'wharf property, which is not conceded, complainant avers that it is-notwithstanding injured at least out to where the vvharf line begins, and that such appropriation is a nuisance and should be abated. The special prayer of the bill is to perpetually enjoin the defendant from obstructing Government street to the east of Commerce' street and north of the south line of Government street eon-tinned from Water street to tlie Mobile river; from obstructing Church- street east of Commerce street, Charleston street east of Water street, and Augusta and Savannah streets between Royal-and the river, and to compel the defendant to remove all obstructions from such public-streets. There is also prayer for general relief.

The. defendant answered the bill and also filed pleas thereto, in which it alleged its right and authority to obstruct all the streets named in the bill except Charleston street, by virtue of section five of the amended charter of the New Orleans, Mobile & Chattanooga Railroad Company, approved February 12th, 1867, and by virtue of certain ordinances adopted pursuant to said section five of the amended charter by the mayor and aldermen and common council in September, 1869, and December, 1870. As to where the said streets named in the bill end at Mobile river, the defendant, pleads the act of the general assembly of Alabama, approved February 24th, 1881 (Session Acts 1880-1, p. 402), entitled “An act to amend sections 2, 5, 8,10,13,14, 20, 24, 28, 33, of ‘an acr, to adopt and carry into effect the plan .for the adjustment and settlement of the existing indebtedness of the late corporation known as the mayor and aldermen and common council of the city of Mobile, which is recommended in the report of the commissioners of Mobile made and laid before the general assembly of Alabama on the 26th of November, 1880, as provided in section 16 of an act of the general assembly of Alabama, entitled “An act to vacate and annul the charter and dissolve the corporation of the'city of Mobile, and to provide for the application of the- assets thereof in discharge of the debts of said corporation,” approved Feb. 11th, 1879,’ ” approved December 8th, 1880, as- a bar to the right of the city of Mobile to have obstructions removed from said streets where they end at the river or wharf fronts.

The cause was set down for hearing in: the chancery court on the sufficiency of the defendant’s pleas, (1), as to whether the general assembly of Alabama authorized the obstruction of the streets or public highways named in the bill, or delegated the power to the city of'Mobile to authorize the obstruction of said streets as charged in the hill of complaint; (2), as to whether the city of Mobile by its mayor, aldermen or common council had the power or authority to authorize the New Orleans, Mobile & Chattanooga- R. R. Co. to occupy and obstruct the streets or public highways, as charged and named in the said bill of complaint; and, (3), whether the act of the general assembly of February 24th, 1881, inhibits the city of Mobile from causing obstructions to be removed from such of its streets as were opened down to the Mobile river, or precludes the city of Mobile from having said streets opened to .public use and travel, as prayed in the bill of complaint.

On Jan. 21st, 1898, the chancery court made and had entered a decree, wherein it was “considered, ordered, adjudged and decreed that said pleas are each sufficient, and that as such they be allowed.” This decree of the court 'is noAv assigned as error.

The sufficiency of defendant’s pleas as a defense to complainant’s bill is based upon section five of the amended charter of the Ncav Orleans, Mobile & Chatta nooga Railroad Co., approved February 12th, 18G7, and the several ordinances adopted pursuant to said section five of said amended charter by the mayor, aldermen and common council of the city of Mobile, in September, 18G9, and December, 1870. The said section five and several ordinances so pleaded are set out in full in. the pleas.

Any right or franchise to the use of the streets of a city for railroad purposes must depend upon legislative sanction and authority. The laAV is too well settled to admit of question that in the absence of legislative grant, a city has no power or authority by contract or ordinance to confer upon individuals or corporations the right to obstruct its streets and public highways, or to grant franchises and privileges in the same that .tend to impair the public uses for which they Avere dedicated and intended. Mr. Freeman says, in an elaborate note to Callaven v. Gilenon, 1 Am. St. Rep. 840 : “The public have a right to passage over a street to its utmost extent, unobstructed by any impediments, and. any unauthorized obstruction which necessarily impedes the laAvful use of a highway is a public nuisance at common laAV.”

In State v. Edens, 85 N. C. 526, Judge Ruffin said: “Airy permanent obstruction to a public highway, such as would be caused by the erection of á fence or a building, is of itself a nuisance, though it should not operate} as an actual obstacle to travel, or work positive inconvenience to any one. It is an encroachment upon a public right, and as such is not permitted by the law to be done with impunity.’’

In Daly v. Ga. So. R’y Co., 12 Am. St. Rep. 286, it is said:' “The king cannot license the' erection or commission of a nuisance; nor in this country can a municipal corporation do so by virtue of any implied or general, powers. A building or other structure of like nature erected upon a street without the sanction of the legislature, is a nuisance, and the local corporate authorities of the place cannot give a valid permission thus to occupy streets without express power to this end conferred upon them by charter or statute.” — Dillon on Munic. Corporations, § 660.

And so we might continue to multiply quotations with citations of authorities, but it is wholly unnecessary, for this principle is Avell supported by our own adjudications. — Birmingham St. R. R. Cases, 79 Ala. 472; Port of Mobile v. L. & N. R. R. Co., 84 Ala. 121; Costello v. The State, 108 Ala. 49.

The doctrine is also Avell established that in a legislative grant of poAvers to corporations, such as are not expressly or by clearest implication granted, are taken to be withheld. And unless the poAver be clearly and unequivocally expressed in the charter or conferred by statute, a municipal corporation cannot authorize a use of its public higliAvays by persons or córporations in a manner that Avill interfere Avith the uses thereof by the general public; a fortiori, may not such corporation authorize the total obstruction of its streets by the erection of buildings therein, or the enclosure of the same. It seems to be a cardinal rule of construction of legislative grants of franchises or poAvers to persons or corporations, to construe the grant strictly in favor of the sovereign and against the grantee. “Grants of poAver to corporations, nnlike the grants of individuals, are to be strictly construed in favor of the government and against the grantee. Corporations can claim nothing that is not clearly given. Ambiguities operate against them. ‘In the construction of every charter, -to be in doubt is to be resolved; and every resolution which springs from doubt is against the corporation.’ — Grand Lodge of Ala. v. Waddill, 36 Ala. 318; Penn. R. R. Co. v. Canal Com’rs, 21 Penn. 9; Richmond R. R. Co. v. Louisa R. R. Co., 18 Howard 81; Sedgwick on Stat. Const. Law, 338-342.

But it is unnecessary to pursue further this line of argument. It was decided by this court in the case of the Port of Mobile v. L. & N. R. R. Co., supra, that the city of Mobile had no power or authority under its charter to grant aright or franchise of-its streets for railroad purposes. 'And the charter passed on in that case was the existing charter at the time of the adoption of the city ordinances set up in the defendant’s pleas. The right of the defendant, then, to continue the obstructions'complained of in the bill must rest upon the authority granted under the ordinances set forth in the pleas, and these ordinances adopted by the municipal government of the city of Mobile must#in turn rest their validity upon the grant of power to the city contained in section five of the amendatory act of Feb. 12th, 1867, entitled “An act to amend sections 16 and 22 of an act entitled ‘an act to incorporate the New Orleans, Mobile'and Chattanooga Railroad Co.,’ approved November 24th, 18(56, and to add additional sections thereto.” The caption of this act reads as follows: “To amend sections sixteen and-twenty-two of an act entitled an act ‘to incorporate the New Orleans, Mobile and Chattanooga .Railroad Company,’ approved November 24th, 1866, and add additional sections-thereto.” Section five is one of the additional sections that is added, and reads as follows: Section 5. Be it further enacted that the said company is hereby authorized and empowered to obtain by grant or otherwise from' any incorporated city or- village within this State that may be situated upon or at the intersection or termini of any of its railroads,- any rights, privileges or franchises that any of said incorporated cities or villages may choose to grant, in reference to the -construction, maintenance and management of the railroad of said company, its depots, cars, locomotives, and its business, within the limits of such or any of such incorporated cities or. villages, and any such incorporated city or village as hereinbefore named is hereby authorized and empoivered to grant to said company any - such rights, privileges and franchises as it may deem proper and advisable; and such rights, privileges and franchises, . AAbem granted to and accepted by said company from any such incorporated city or Adllage, shall be deemed and taken as rights, privileges and franchises Arested and confirmed in said company, and not liable thereafter to be revoked, changed, injured or impaired, except AA'ith the consent of said company.”

It is now insisted by the appellant that this section- is unconstitutional, as being olfensiAre to and violative of section tAvo, article four, of the constitution of 1865, the constitution of force at the date of the passage of the act, and Avhich provides: “Each Iuav shall embrace but one subject, AAbich shall be described in the title,” etc. If this contention be Avell founded, it must folloAV that the ordinances adopted by the-city pursuant to this act, granting the rights, privileges and franchises claimed by the defendant, are null and void, and the sufficiency of the plea setting up the same must be determined ad-Arersely to the defendant.

While the provision of the constitution under consideration is mandatory, still the courts should be certain that the státute is Adolative of the provision, before proceeding to adjudge a solemn enactment of the laAv-making poAver of the látate unconstitutional, but aaLcu the subject is relieved of doubt, then there should be no hesitancy on the paid of the judiciary to exercise the function and duty of declaring a giAum Iuav unconstitutional, hoAArwer'injurious may be the consequences to the individual litigant.

The present case bears a striking analogy to the case of The State v. Southern Railway Co., 115 Ala. 250. There the caption of the act construed Avas, “to amend sections 8 and 10 of an act to create the Board of Education of the City of Birmingham, and to prescribe the poAvers and duties of the same.” Here the caption is: “t,o amend sections 16 and 22 of an act entitled ‘an act to incorporate tlie New Orleans, Mobile and Chattanooga Railroad Company;’ approved November 24th, 18G6, and add additional sections thereto.” In the former case, as stated by the court, “the only purpose of the amendatory act as stated in its title was to amend two sections named of the former enactment. They were amended so as to be made to read in the words and figures set out in the amendatory act, each amendment being round and complete within itself * * * * After this, by independent legislation, the act proceeds to levy a tax * * * * for purposes of the promotion of public education within its limits — a subject not referable and cognate to the subject expressed in the title, and which would never be suggested to the legislative mind from reading or hearing the caption read.” So, in the ease at bar, the only purpose of the act under consideration, as expressed in its caption, was to amend certain sections of the original act incorporating the New Orleans, Mobile and Chattanooga Railroad Co., and having accomplished this, the act proceeds, by way of independent legislation, in section five-, above set out, to confer upon the incorporated cities and towns along the proposed line of railroad named in the act .the power and authority to grant to said company rights, privileges and franchises of the public streets and highways of such incorporated cities and towns; or, in other words, and in effect, to so radically amend the charter of the city of Mobile as to authorize said city to grant to defendant corporation the right, to exclusively occupy its streets — a subject not only not cognate and germane to the subject expressed in the caption to the act, but wholly foreign to it. If it he conceded that the subject contained in the title to the amendatory act, is the subject of the original act, which is sought to be amended, that is, the incorporation of the New Orleans, Mobile & Chattanooga Railroad Co., even then the matter expressed in section five, conferring grants of power on incorporated towns and cities, could not be referable and cognate to the subject expressed in the caption, so as to relieve it of its offensiveness to the constitutional provision. To the legislative mind, or to the public, upon reading the title of the act in question there is not the slightest hint or suggestion to be had of an intention or purpose to amend, alter or change the chartered powers of the cities and villages along the line or at the termini of the railroad of the company incorporated by the act. What was said by this court in the case of the State v. Southern Railway Co., supra, is so opposite that xve here repeat it: “The provision is so Anulativo of section 2, article IV, of the Constitution, requiring that each Iuav shall contain .but one subject, Avliieh gliail be clearly expressed in the title, Ave need' indulge no argument to sIioav it. Adjudications are abundant and pointed in condemnation of such legislation. We content oui'selves with reference to cases on. the subject in Axdiich others Avill also be found cited.” Ballentyne v. Wichersham, 75 Ala. 533; Ex parte Reynolds, 87 Ala. 138; Ex parte Cowart, 92 Ala. 94; Wolff v. Taylor, 98 Ala. 254; Ex parte Gayles, 108 Ala. 514.

When the ordinances and the act incorporating the NeAV Orleans, Mobile and Chattanooga Railroad Co., which we have been considering, Avere under consideration in the case of the Port of Mobile v. L. & N. R. R. Co., supra, this question Avas not then raised, presented to or considered by the court.

Section 33 of the act approved Feb. 24th, 1881, which said act is pleaded by the defendant against the complainant to maintain its bill for the removal of obstructions from the river end of certain streets named in the bill, contains the only reference in said act to the AAhaiwes of the city. The charter of the city of Mobile in force and effect Avhen the bill in this case Avas filed (Session Acts 1896-7, pp. 542-581, § 21), makes it the duty of the general council, “to cause to be remoAred all nuisances that may exist, or things likely to become such, from the streets, roads, sideAvalks, alleys, or places, in the aforesaid limits.” The limits of said city as shown in section one of said charter embrace all of Mobile river opposite the city. Suppose the wharves were in the possession of a trusfee under the act of Feb. 24th, 1881, for the purpose of leasing same for the benefit of the bondholders named in the statute, Iioav could this, prevent the city, under the above charter, authority and duty, from filing its bill to remove obstructions from the street doAvn to the Avharf line, if no further? We fail to see that there is any merit in the defense set up in this plea.

In the foregoing opinion we have assumed the power of the legislature to authorize the obstruction of the pub lie streets of an incorporated city or town, without deciding that question.

Our conclusion is that the chancery court erred in adjudging the pleas sufficient.

Our attention has been called by counsel for the appellee to a recent act of the legislature passed at the last session (Session of 1898-9), entitled, “An act to validate the grants, rights, privileges and franchises granted to railroads by the cit3r of Mobile and its predecessors.” This act is local and private, and in order to be considered by the court for any purpose must be brought before the court by proper pleading. It is not an act that the court can take judicial notice of.

As-the decree of the chancery court must be reversed for the error pointed out, in accordance with the suggestion of counsel on both sides, uo decree will be rendered l>y this court, but the cause will be remanded.  