Cincinnati v. Cincinnati & Hamilton Traction Co., 245 U.S. 446 (1918)

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Cincinnati v. Cincinnati & Hamilton Traction Company

No. 10

Argued January 24, 25, 1916
Restored to docket for reargument June 12, 1916
Reargued October 26, 27, 1916
Restored to docket for reargument May 7, 1917
Reargued October 17, 18, 1917
Decided January 7, 1918
245 U.S. 446

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF OHIO

Syllabus

Corporations of Ohio claimed the right to operate a street railway in Cincinnati according to the terms of various grants, etc., under which it had been built in sections or links. A revocable ordinance of the city council, after reciting that, as to portions of the streets so occupied, "alleged grants" had expired, and on others there never had been any grants and the companies had no longer any right to occupy the same, provided that the companies might continue to operate, but only from day to day, and subject to new and material conditions, as to fares, transfers, etc.; that should it be adjudged that they were without continuing right in respect to portions only of the streets occupied, the ordinance should be construed to forbid further operation on such portions except on compliance with all of its terms and conditions; that continued operation "on said streets" should be deemed an acceptance by the companies of the ordinance and all its terms; that in case they refused or failed to comply with it on its effective date, the city solicitor should "take such legal proceedings as may be proper and necessary" to enforce its provisions, or to require them "to abandon the streets covered by this ordinance, and to remove their tracks from said streets." Averring that the ordinance impaired and attempted to impair the obligations of the several grants etc., that its enforcement would deprive them of their property without due process or compensation, and that, under it, the city threatened to, and unless restrained would, interfere with and prevent the maintenance and operation of the railway over the routes described in the grants aforesaid and under authority and in accordance with the terms thereof, thus causing irreparable injury, the companies, by their bill, filed in the district court before the ordinance became effective, prayed that it be decreed void and that the city be perpetually enjoined from such interference, in any way, as to the whole and any part of the railway, and from enforcing, or taking any steps to enforce, the ordinance in whole or in part. The city’s answer denied jurisdiction, that the bill stated a cause of action, that the companies had any right to operate as to certain portions of the line, that the city would interfere with or prevent the maintenance and operation by plaintiffs of the said railway, or cause any damage or injury to plaintiffs, and averred that enforcement of the ordinance was only authorized, and only would be sought, by due court proceedings. After full hearing, the district court upheld the grants, etc., involving complicated questions, under the laws of Ohio, and granted the injunction as prayed. Held (1) that the jurisdiction of the district court was properly invoked, and that it had power to adjudicate the issues presented, but (2) that, as counsel for the city in this Court had plainly conceded what did not sufficiently appear by the answer, viz, that, except as it authorized proceedings in court. the ordinance could have no effect prior to a judicial determination, and that no other steps could be taken under it, or would be attempted, by the city’s officers to enforce it, the decree should be modified so as to exclude any finding upon the validity of the franchises and rights claimed by plaintiffs, and so as to limit affirmative relief to an injunction restraining the city (a) from taking any steps other than necessary court proceedings to enforce the ordinance prior to final adjudication of the controversies involved, and (b) from ever setting up claim that plaintiffs’ continued operation of cars over streets now used, pending such final adjudication, does or will amount to an acceptance of the ordinance or in any way prejudice their rights.

Upon appeal, the cause is subject to review upon both law and facts, and that relief should be granted which is proper upon the case as it develops in this Court.

Modified and affirmed.

The case is stated in the opinion.