Railroad Co. v. Richmond

after stating the case, delivered the opinion of the court.

The questions for determination in' this case are: —

1.. Does the municipal legislation complained of impair the vested rights of the company under its charter ?

In answering this question, it becomes necessary to determine at the outset what the rights of the company, secured by its .charter and affected by the ordinance in dispute, actually are. The right is granted the company to construct a railroad “ from some point within the corporation of Richmond, to be approved by the common council.” No definite point is fixed by the-charter. That is left to the discretion of the company, subject only to the approval of thé city. The power to approve certainly .implies the power to reject one location and accept an- ■ other; and this necessarily carries with it the further power to 'reserve such governmental control over the company in respect to the -road, when built within the city'to the point approved, as may seem, to be necessary. The absolute grant of the charter is satisfied if the road is built within the city, for any distance, by any route, or to any point. The company, however, desired, to pass through Broad Street, and, for the present, to terminate the road úpon the lots purchased for shops and warehouses, and requested the city to approve that location. This the city was willing to do, upon- condition that it should not be considered as 'thereby parting with, any power or chartered privilege- not necessary to the company for constructing its road ' or connecting it with the depot. These terms were proposed to. thó company, and accepted. At that time -the city was invested with all the powers “necessary for the good ordering and government” of -persons and property within its jurisdiction. By the conditions imposed, these powers were all reserved, ■ except to the extent of permitting the company to construct its road upon the roufe designated,- and connect it .with the depot. All the usual and ordinary powers of city governments over the road when constructed, and over the company in respect to its *528 use, were expressly retained. The company, therefore, occupied Broad Street upon the same terms and conditions .it would. if the charter had located the route of the road within the city, hut, in terms, subjected the company to the government of the city in respect to thé use of the road when constructed.

Nothing has been done since to change the rights of the parties. It is true that'an attempt was.made by the residents on Shockhoe Hill to induce the council to prohibit the use of locomotives within the city, and. to require the company to so construct the road within Broad Street as- to facilitate the crossing of the track; but all parties seemed to be satisfied then with the proposition of the company to run its engines, slowly- and with care. in. the city, and its liberal contribution tpwards the expense of paving the street. There is nowhere in ■ the proceedings an indication., of a relinquishment by the city of its governmental control over the company or its property. ■ The compromise of interests ” proposed related alone to the plan, of the pavement. ■

It remains only to consider whethfer the ordinance complained of is a legitimate exercise of the power of a-city government. It certainly comes within "the express authority conferred by. the amendment to the city charter adopted'in 18T0; and that, in our opinion, is no more than existed by implication before. - The power to govern implies the power to- ordain and establish suitable police regulations-; and that, it has often been decided, authorizes municipal corporations to prohibit the use of locomotives in the public streets, when such action does not interfere with vested rights. Donnaher v. The State, 8 Smed. & M. (Miss.) 649; Whitson v. The City of Franklin, 34 Ind. 392.

Such prohibitions clearly rest upon the maxim sic utere tw 'ut alienum honlcedas, which lies at the foundation of the police - power; and it was not seriously contended upon the argument ■ that they did not c.ome within the legitimate scope o'f municipal government, in the absence of legislative restriction upon the powers of the municipality to 'that .effect. • It is not for us to determine in this'case whether the power has been judiciously exercised. Gur duty is at an end if'we find that it exists. The' judgment of-the court below is final as', to the reasonableness of. the action'of the council.

*529 We conclude, therefore, that the ordinance does not-impair any vest.ed right conferred tipon the companyby its charter.

2. Does it deprive the company of its property without due process of law?

This question is substantially disposed.of by what has already been said, as the claim of the company is based entirely upon the assumption of a vested right, under its charter, to operate its road by steam,, both within and without the city, which we have endeavored to show is not true. ' All property within the city is subject to the legitimate control of the government, unless protected by “ contract rights,” which is not the case' here. Appropriate regulation of- the use of property is not u taking”property, within the meaning of the constitutional prohibition.

• 8. Does it deny the company the equal protection of the laws ?

The claim is, that, as .this company is alone named in the .ordinance, the operation of the ordinance is special only, and, therefore, invalid.- No other person or corporation has the right to run locomotives in Broad Street. Consequently, no other person or corporation is ór can be in like situation, except with the consent of thé city. On this account, the ordinance, while apparently limited in its operation, is in effect general, as it applies to. all who can do what is prohibited. Other railroad companies, may occupy other-streets and use locomotives there; but other streets may not be situated like Broad Street, neither may there be the same reasons why steam transportation should be excluded from them. All-laws should be. general in their-operation, but all places within the same city do not necessarily require the same local regulation. While locomotives may with very great propriety be excluded from one street, or even from one part of a street, it would be sometimes unreasonable to exclude them from all. It is the special duty.of the city authorities to make the necessary discrimin iti&ns in this particular.

On the whole, we see no error in the record, and the judgment is

Affirmed.