This is the second appeal. City of Birmingham v. L. N. R. R. Co., 213 Ala. 92, 104 So. 258.
The questions presented arose in the attempt of the city of Birmingham to eliminate grade crossings used by companies operating railroads in a city of more than 35,000 population; and a further question is presented as to the nature and extent of the appeal provided to any court having chancery jurisdiction. Code 1923, §§ 2070-2075. The nature and extent of such trials in equity were touched upon on former appeal as follows:
"It was intended the proceeding should bear some analogy to appeals. Among the common incidents of appeals are these: A fixed right to thus test the legality of the matter assailed; the right, upon execution of a proper bond, to supersede or suspend the execution of the order or decree pending the appeal; and the right, upon a hearing, to vacate or restrain the execution of the order, if found invalid. These are the incidents we think the Legislature had in mind in styling the proceeding to test the validity of a legislative ordinance as 'an appeal.' It provides a cumulative remedy as of right and not of discretion. * * * We have outlined the procedure to perfect the appeal and the order made thereon in the case at bar as an approved precedent in such cases. In the further progress of the cause the petition is to be treated as in lieu of a bill of injunction, subject to the same rules as to amendment, demurrer, and answer." 213 Ala. 92, 94, 104 So. 258,260.
There may be analogy in the construction given other statutes providing for appeals to a court of equity. Alabama Public Service Commission v. Mobile Gas Co., 213 Ala. 50, 104 So. 538, 41 A.L.R. 872.
After the former decision, the pending case in the circuit court in equity proceeded to a decree overruling grounds of demurrer of the city to the bill filed by the railroad company against that municipality, contesting the validity of the ordinances seeking to require the Louisville Nashville Company and the Alabama Great Southern Railroad Company at their expense to eliminate grade crossings at the several streets in said city in the manner specifically indicated — by building trestles, bridges, etc., over the street. The tracks of the Louisville Nashville Company are averred to cross at grade the several public streets in the city of Birmingham; the way of the railroad company long preceding the growth of the city and its present congested traffic.
The demurrer of respondent was directed to the bill as a whole, and grounds thereof limited or directed to certain specified aspects of the bill. The decree overruled the demurrer to the bill as a whole, and sustained certain specific grounds of demurrer, and overruled others. The effect of such a decree on demurrer was discussed in Pollak v. Stout's Mountain Co., 184 Ala. 331, 63 So. 531; s. c., 201 Ala. 700,78 So. 990. This case was followed in Sandlin v. Anders, 210 Ala. 396,400, 98 So. 299, 303, where it was said:
"A decree sustaining a demurrer to a part of a bill has the effect of striking that part. The complainant may thereupon so amend the part stricken as to give the bill equity in that regard, or he may by express amendment, eliminate the portion stricken by demurrer, or, if the bill still contains equity, may proceed thereon without amendment as if the defective feature had been stricken on motion."
It is elementary that, when an attack is made upon an ordinance on the ground that it is unreasonable, arbitrary, and oppressive, the burden is upon the pleader or attacking party. Briggs v. B. R., L. P. Co., 188 Ala. 262, 66 So. 95; Standard Chem. Oil Co., 201 Ala. 89, 77 So. 383, L.R.A. 1918C, 522.
And it should be said that the general rules in respect to review of ordinances for unreasonableness are well stated in Briggs v. B. R., L. P. Co., 188 Ala. 262, 266, 66 So. 95, 96:
"Where an ordinance or by-law, assuming to exercise a power within the municipality's competency, is not void on its face, the legal presumption is that the ordinance or by-law is reasonable and valid until the contrary is shown by proper evidence. Bryan v. Mayor, etc., 154 Ala. 447, 452, 45 So. 922, 129 Am. St. Rep. 63; Marion v. Chandler, 6 Ala. 899, 902; Johnson v. Town of Fayette, 148 Ala. 497, 42 So. 621. When the unreasonableness vel non of an ordinance of by-law is asserted or urged, the question thus made is to be decided by the court, not the jury. Marion v. Chandler, supra; Johnson v. Town of Fayette, supra; 2 McQuillin on Munc. Corp. § 729; 2 Dillon, § 599; Evison v. Chicago R. R. Co., 45 Minn. 370, 48 N.W. 6, 11 L.R.A. 434. A qualification of this doctrine appears to have commended itself to the Supreme Court in A. W. Tel. Co. v. Philadelphia, 190 U.S. 160, 166, 23 S.Ct. 817, 47 L.Ed. 995; but the conclusion, in this respect, of our cases, as well as the texts cited above, seem to us to afford the sounder, more practical rule, and will be adhered to. The court having the question to determine will take relevant evidence to advise its judgment upon the issue of unreasonableness
vel non. 2 Dillon, § 599; Marion v. Chandler, supra; Van Hook v. Selma, 70 Ala. 361, 365, 45 Am. Rep. 85; 2 McQuillin, § 729. In order to justify the court in annulling an ordinance or by-law on the ground that it is unreasonable it must be 'demonstrably shown' that it is unreasonable; 'equipoise of opinion' on the matter will not warrant the setting aside of the ordinance of by-law on the ground of unreasonableness. Marion v. Chandler, 6 Ala. 899, 902."
The rules declared have been adhered to in the later decisions of this court. Standard Chem. Co. v. Troy, 201 Ala. 89,77 So. 383, L.R.A. 1918C, 522; B. R. L. P. Co. v. Kyser, 203 Ala. 121, 82 So. 151; Giglio v. Barrett, 207 Ala. 278,92 So. 668.
The authority of a municipality in the exercise of the police power under the law is ample for the enforcement of the continuous duty resting upon railroad companies and persons in the construction and maintenance of their ways in or across public highways and streets of municipalities. Southern Ry. Co. v. Morris, 143 Ala. 628, 630, 42 So. 17; Sands v. L. N. R. R. Co., 156 Ala. 323, 329, 47 So. 323. The extent of the police power conferred by the charter of cities (article 27, Code 1923, §§ 2070-2075; City of Birmingham v. L. N. Co., 213 Ala. 92,104 So. 258) has been adverted to by this court and the Supreme Court of the United States (N. P. Ry. Co. v. State of Minnesota, 208 U.S. 583, 28 S.Ct. 341, 52 L.Ed. 630; Chicago, M. St. P. R. R. Co. v. City of Minneapolis, 232 U.S. 434,34 S.Ct. 400, 58 L.Ed. 671).
In the last-cited case the authorities are collected, and the opinion, by Mr. Justice Hughes, declared:
"It is well settled that railroad corporations may be required, at their own expense, not only to abolish existing grade crossings but also to build and maintain suitable bridges or viaducts to carry highways, newly laid out, over their tracks or to carry their tracks over such highways."
The decision in State ex rel. Minneapolis v. St. Paul, M.
M. R. Co., 98 Minn. 380, 108 N.W. 261, 28 L.R.A. (N.S.) 298, 120 Am. St. Rep. 581, was quoted with approval by the justice in that case (Chicago, etc., Co. v. City of Minneapolis, supra), saying:
" 'A railroad company receives its charter and franchise subject to the implied right of the state to establish and open such streets and highways over and across its right of way as public convenience and necessity may from time to time require. That right on the part of the state attaches by implication of law to the franchise of the railroad company, and imposes upon it an obligation to construct and maintain at its own expense suitable crossings at new streets and highways to the same extent as required by the rules of the common law at streets and highways in existence when the railroad was constructed.' In that case, it appeared that long after the construction of the railroad, the city of Minneapolis had laid out a street across the railroad right of way, building at its own cost a bridge over the railroad tracks. After the bridge had been maintained for several years by the city it was destroyed by fire, and the city then demanded that the railroad company should build a new one. This demand the state court sustained; and, mandamus having thereupon been awarded (101 Minn. 545
[112 N.W. 1142]), the case was brought to this court, one of the grounds being that the action of the state deprived the company of its property without due process of law. The judgment was affirmed (St. Paul, M. M. R. Co. v. Minnesota, 214 U.S. 497
[53 L.Ed. 1060, 29 S.Ct. 698]), this conclusion being reached upon the authority of Northern P. R. Co. v. Duluth,208 U.S. 583 [28 S.Ct. 341, 52 L.Ed. 630]."
The case of C., I. W. R. Co. v. Connersville, 218 U.S. 336,31 S.Ct. 93, 54 L.Ed. 1060, 20 Ann. Cas. 1206, was likewise referred to as being a case where the city was extended and intersecting streets laid out along an existing railway; and it was held that there was no violation of the Fourteenth Amendment in refusing to allow the company to be reimbursed for the expense for the new and required improvement; and the rights in the premises were said to be "concluded by former decisions" of the Supreme Court of the United States. The subject is concluded by Mr. Justice Hughes as follows:
"* * * It necessarily follows that, if the city of Minneapolis had opened a public road through the embankment of the plaintiff in error, the latter would have had no ground to complain that its constitutional rights had been violated because it was compelled to bridge the gap at its own cost. No different rule could be applied because the highway was laid out in order to increase the advantages of a public park. In this aspect, it would be equally a crossing devoted to the public use (Shoemaker v. United States, 147 U.S. 282, 297
[13 S.Ct. 361, 37 L.Ed. 170, 184]); and we see no basis for a distinction in principle in the case of an intersecting public road opened under competent authority because such a highway might lead to public recreation grounds instead of to places of business, or might connect lakes instead of avenues." Chicago, M. St. P. R. Co. v. City of Minneapolis, 232 U.S. 430, 441,34 S.Ct. 400, 402, 58 L.Ed. 671, 675.
The action of a municipality in deciding the necessity for and ordering that specified grade crossings be eliminated by the reasonable means duly indicated by ordinance under authority of statute is the province and policy of its duly constituted legislative body, and the courts have no voice in the determination of that necessity. That is, the question of the wisdom and public necessity for the same is, under sections 2070, 2072, Code of 1923, for the decision of the legislative body of the city of Birmingham in the exercise of the prerogative of the sovereign and police power. City of Birmingham v. L. N. R. R. Co., 213 Ala. 92, 104 So. 258; Herbert
v. Demopolis, 197 Ala. 617, 73 So. 321; B. I. Tax. Serv. Corp. v. McLendon, 210 Ala. 525, 98 So. 578; McLendon v. Boyles Trans. Co., 210 Ala. 529, 98 So. 581; Cloe v. State, 209, Ala. 544, 96 So. 704; Giglio v. Barrett, 207 Ala. 278, 92 So. 668; Henderson v. Enterprise, 202 Ala. 277, 80 So. 115; B. R. L.
P. Co. v. Kyser, 203 Ala. 121, 82 So. 151; Montgomery v. Orpheum Taxi Co., 203 Ala. 107, 82 So. 117. The foregoing authorities are largely predicated upon Lindsay v. Mayor,104 Ala. 261, 263, 16 So. 545, 546 (27 L.R.A. 436, 53 Am. St. Rep. 44) where the observation is made that an ordinance imposing a license tax and to regulate hacks, etc., was in nature and essence a police regulation, and that its "policy or reasonableness" could not be inquired into. Mr. Chief Justice Brickell there said, of the exercise of such power:
"The power may be, and is often delegated to municipal corporations, to be exercised for the promotion of the public convenience. When the power has been delegated in terms of the character employed in the amended charter, the validity of ordinances, prescribing the times, places and manner in which the employment is to be pursued, has been uniformly sustained. Com. v. Stodder, 2 Cush. 562; s. c., 48 Am. Dec. 679; City of St. Paul v. Smith, 27 Minn. 364 [7 N.W. 734]; s. c., 38 Am.Rep. 296; Veneman v. Jones, 118 Ind. 41 [20 N.E. 644]; s. c., 10 Am. St. Rep. 100. Such ordinances are in their nature and essence police laws or regulations, and when adopted in the exercise of an express legislative grant of power, there can be no inquiry into or discussion of their policy or reasonableness. 'What the Legislature says may be done, cannot be set aside by the courts, because they may deem it unreasonable or against sound policy.' 1 Dillon, Mun. Corp. § 328."
And upon that authority (104 Ala. 261, 16 So. 545), in City of Montgomery v. Orpheum Taxi Co., 203 Ala. 103, 82 So. 117, it was said that, where there is express legislative grant, within constitutional limitation, of power to a municipality to ordain the ordinance expressive of that power, it cannot be inquired into with respect to its policy or reasonableness.
Adverting to the decisions of the Supreme Court of the United States as to certain constitutional objections that have been urged against such statutes or ordinances, it is declared, through Mr. Justice Holmes, in Erie Railroad Co. v. Board of Pub. U. Com., 254 U.S. 394, 410, 41 S.Ct. 169, 171,65 L.Ed. 322, 334, that a state may, without offense to the due process of law, commerce, and contract clauses of the Constitution, require a railway corporation engaged in interstate commerce to abolish, at its own expense, and without regard to financial ability, highway grade crossings, including those at streets laid out after the railway was built, "if it reasonably can be said that safety requires the change it is for them to say whether they insist upon it," and financial outlay or engagement in interstate commerce cannot take away this fundamental right of the sovereign of the soil. Denver R. G. R. Co. v. Denver, 250 U.S. 241, 246, 39 S.Ct. 450,63 L.Ed. 958, 962.
It follows that, since the duty of a railroad company to keep its crossings is continuous (Southern Ry. Co. v. Morris,143 Ala. 628 et seq. 42 So. 17), such operating company or individual may be properly required by the state or its delegated municipalities, without regard to whether the street or highway became such public thoroughfare before or subsequent to the building of the railway, to maintain crossings and approaches, to eliminate grade crossings, etc. Erie R. Co. v. Board of Pub. U. Com., 254 U.S. 394, 41 S.Ct. 169,65 L.Ed. 322, 333; State v. St. P., M., etc., Co., 98 Minn. 380,108 N.W. 261, 28 L.R.A. (N.S.) 298, 120, Am. St. Rep. 581; s. c., 214 U.S. 497, 29 S.Ct. 698, 53 L.Ed. 1060; N. P. R. Co. v. State of Minnesota ex rel. Duluth, 208 U.S. 583, 28 S.Ct. 341,52 L.Ed. 630, 636.
The foregoing result is held not offensive to organic law, as the taking of private property for public use without compensation, or the denial of the equal protection of the law, or that against the impairment of the obligations of a contract. Such are our decisions. Lindsay v. Mayor, 104 Ala. 257,16 So. 545, 27 L.R.A. 436, 53 Am. St. Rep. 44; State, ex rel. City of Gadsden v. Ala. City, G. A. R. Co., 172 Ala. 125,135, 55 So. 176, Ann. Cas. 1913D, 696; Patterson v. S.
N. R. Co., 89 Ala. 318, 7 So. 437; Southern Ry. Co. v. Posey,124 Ala. 486, 26 So. 914; Southern Ry. Co. v. Morris, Adm'r,143 Ala. 628, 42 So. 17; N.C. St. L. R. Co. v. Ragan,167 Ala. 277, 52 So. 522; Southern Ry. Co. v. Flynt, 203 Ala. 65,82 So. 25. The cases of Pratt Co. v. Davis, 79 Ala. 308, S.
N. R. Co. v. McLendon, 63 Ala. 266, by Mr. Chief Justice Stone, and Southern Ry. Co. v. Posey, supra, use the expression that the owner of a railroad operating it across a public. road is under the legal duty of maintaining the crossing in a condition reasonably safe and convenient for use by those traveling the public road. And the duty of maintenance of such crossing in a proper condition is unaffected by whether or not the street or public highway was created or constructed before or after the building of the railroad. This is the declared public policy of the state. Code 1923, §§ 2017, 2020, 2189; State ex rel. Gadsden v. Ala. City, G. A. R. Co., 172 Ala. 125, 135,55 So. 176, Ann. Cas. 1913D, 696.
The authority of the commission as the legislative body of the city of Birmingham in its legislative capacity and in the exercise of the police power to adopt proper ordinances to eliminate dangerous grade crossings is as ample as that of the state; that is to say, the authority sought to be exercised by the instant ordinances, to the end of
the elimination of railroad street crossings, in the populous sections of Birmingham, is ample. The court takes judicial knowledge of the ordinances of said city, and they are considered to the one end in view. Gen. Acts 1915, p. 294, §§ 6, 7; Southern Ry. Co. v. Cates, 211 Ala. 282, 100 So. 356; Barrett v. Riatta, 207 Ala. 651, 93 So. 636; City Cleaning Co. v. Birmingham W. Co., 204 Ala. 51, 85 So. 291. It is provided in article 27 of the Code of 1923, §§ 2070, 2072, that municipalities of the class indicated may require and shall have full power and authority to require railroad companies to construct and maintain, within the city limits, viaducts, bridges, and tunnels, or parts of viaducts, bridges, and tunnels, and their approaches, over, along, or under the tracks, at their own expense; that is, provides by section 2070 that such cities shall have full power and authority to require railroad companies to construct and maintain, within the city limits, "such bridges and their approaches, tunnels, or other conveniences at public crossings, and such viaducts, and their approaches over their tracks where the same cross or extend along public highways or streets." Section 2072 provides as follows:
"Whenever any such governing body shall deem any such improvement necessary, it shall pass an ordinance requiring the construction of such improvement, describing the character and location of such proposed improvement with reasonable certainty, and stating the estimated cost thereof, and fixing a reasonable time for the construction of the same; and where a viaduct, bridge or tunnel crosses over or passes under the tracks of two or more railroad companies, and such railroad companies cannot themselves agree upon the division as between them, of the cost thereof to be borne by them, as provided in section 2070 (1296), the said governing body shall have full power and authority to apportion the cost thereof, equitably, among the different railroads owning the said tracks."
The right of appeal by the railroad from such order or ordinance requiring bridges, tunnels, viaducts, etc., is provided by section 2075 of the Code of 1923, which was considered on former appeal. 213 Ala. 92, 104 So. 258. The legislative power in the premises was sought to be exercised under the statute. The powers contained in the General Acts of 1911, p. 374, are merely cumulative of the powers contained in the general statute (Walker v. Birmingham C. I. Co., 184 Ala. 425,63 So. 1012; Cloverdale Homes v. Town of Cloverdale,182 Ala. 419, 62 So. 712, 47 L.R.A. [N. S.] 607) in cities of the class and matter indicated.
A better understanding of the unanimity of decisions as to the power contained in the several statutes having application will be afforded by the general decisions, state and federal, touching the right of municipalities, by proper ordinances, to require such public service corporations using grade crossings in cities to eliminate the same, collected in 28 L.R.A. (N.S.) 298, note, and 35 A.L.R. p. 1322. In 35 A.L.R. supra, it is stated:
"The power of municipalities to eliminate grade crossings, either through express statutory authority, or by implication from other delegated powers, or the general police power, is recognized in the following cases: United States: Missouri P. R. Co. v. Omaha (1912) 197 F. 516, 117 C.C.A. 12, decree affirmed in (1914) 235 U.S. 121, 35, S.Ct. 82, 59 L.Ed. 157; Chicago v. New York, C. St. L. R. Co. (1914) 216 F. 735, 132 C.C.A. 645; Chicago, M. St. P. R. Co. v. Minneapolis ([D. C.] 1916) 238 F. 384."
The case of Missouri P. R. Co. v. Omaha. 235 U.S. 121,35 S.Ct. 82, 59 L.Ed. 157, held:
"A railway company may, consistently with due process of law, be required by the state, or by a duly authorized municipality acting under its authority, to construct overhead crossings or viaducts at its own expense, the consequent cost to the company being, as a matter of law, damnum absque injuria, or deemed to be compensated by the public benefit which the company is supposed to share.
"Courts cannot interfere with the exercise of the police power by enjoining regulations in the interest of the public safety which the Legislature has duly enacted, provided the means employed have a substantial relation to the purpose to be accomplished and there is no arbitrary interference with private rights.
"The entire cost of constructing a viaduct over the tracks of a railway company at a street crossing may, consistently with due process of law, be imposed upon the railway company by a duly authorized municipality acting under state authority, although the structure ordered by the city, being designed to carry the tracks of a street railway company operating in such street, will cost considerably more than a viaduct sufficient to carry the ordinary street traffic."
The later case of Denver Rio Grande R. Co. v. Denver,250 U.S. 241, 243, 245, 39 S.Ct. 450, 451, 63 L.Ed. 958, 961, declares:
"The track in Wynkoop street has been there since 1871, and we shall assume, as did the supreme court of the state, that it was put there in virtue of some ordinance of that period, and that the ordinance became a contract and the right granted became a vested property right. But, as this court often has held, such contracts and rights are held subject to the fair exercise by the state, or the municipality as its agent, of the power to adopt and enforce such regulations as are reasonably necessary to secure the public safety; for this power 'is inalienable even by express grant,' and its legitimate exertion contravenes neither the contract clause of the Constitution nor the due process clause of the 14th Amendment. Atlantic Coast Line R. Co. v. Goldsboro, 232 U.S. 548, 558, 34 S.Ct. 364,58 L.Ed. 721, 726; Chicago A. R. Co. v. Tranbarger, 238 U.S. 67,76, 35 S.Ct. 678, 59, L.Ed. 1204, 1210. Of course, all regulations of this class are subject to judicial scrutiny, and where they are found to be plainly unreasonable and arbitrary
must be pronounced invalid as transcending that power and falling within the condemnation of one or both, as the case may be, of those constitutional restrictions.
"The scope of the power and instances of its application are shown in the decisions sustaining regulations (a) requiring railroad companies at their own expense to abrogate grade crossings by elevating or depressing their tracks and putting in bridges or viaducts at public crossings (Northern P. R. Co. v. Duluth, 208 U.S. 583, 28 S.Ct. 341, 52 L.Ed. 630; Chicago. M. St. P. R. Co. v. Minneapolis, 232 U.S. 430, 34 S.Ct. 400,58 L.Ed. 671; Missouri P. R. Co. v. Omaha, 235 U.S. 121,35 S.Ct. 82, 59 L.Ed. 157), (b) requiring a railroad company at its own cost to change the location of a track and also to elevate it as a means of making travel on a highway safe (New York N.E. R. Co. v. Bristol, 151 U.S. 556, 14 S.Ct. 437,38 L.Ed. 269), (c) prohibiting a railroad company from laying more than a single track in a narrow, busy street, although its franchise authorized it to lay a double track there (Baltimore v. Baltimore Trust G. Co., 166 U.S. 673, 41 L.Ed. 1160,17 S.Ct. 696), and (d) requiring a gas company whose mains and pipes were laid beneath the surface of a street under an existing franchise to shift them to another location at its own cost to make room for a public drainage system. New Orleans Gaslight Co. v. Drainage Commission, 197 U.S. 453,25 S.Ct. 471, 49 L.Ed. 831."
The field of inquiry, indicated to be for the courts, under the federal decisions, is that pointed out by Mr. Justice Van De Vanter in the Denver Case, supra: Are the ordinances in question "plainly unreasonable and arbitrary?" He illustrates that inquiry of fact in his observations:
"The crossing is practically the gateway to the city. Persons in large numbers pass over it every day — many of them unacquainted with the surroundings. Moving engines and cars to and fro over such a place makes it one of danger. Any one of several forms of corrective regulation might be applied. To illustrate: The city might call on the railroad company to construct and maintain a viaduct over the crossing or a tunnel under it; or might lay on the company the duty of maintaining watchmen or flagmen at the crossing. What it actually does by the ordinance is to call on the company to remove the track from the crossing and avail itself of other accessible and fairly convenient means of getting cars to and from its track east of the crossing. No doubt in this the company will experience some disadvantages, but they will be far less burdensome than would be the construction and maintenance of a viaduct or tunnel, and not much more so than would be the keeping of watchmen or flagmen at the crossing.
"The situation is unusual and the ordinance deals with it in a rather practical way. Giving effect to all that appears, we are unable to say that what is required is plainly unreasonable and arbitrary."
In City of Durham v. Southern Ry. Co., 185 N.C. 240,117 S.E. 17, 35 A.L.R. 1313, the ordinance for the elimination of grade crossings was upheld by the Supreme Court of North Carolina, and affirmed by the Supreme Court of the United States. Southern Ry. Co. v. City of Durham, N.C., 266 U.S. 178,45 S.Ct. 51, 69 L.Ed. 231. It had been declared by the Supreme Court of North Carolina that the city had exclusive control of its streets, and the question of eliminating grade crossings "in the first instance was one for the local authorities"; that is, for the determination by those authorities whether the "public necessity requires a separation of crossing grades" and the method of accomplishing it — "whether by compelling the railroad (1) to depress its tracks and carry the street over," or (2) by raising its tracks and carrying the same over the present grade of the street. In the decisions of these legislative questions the ordinance was held a proper exercise of the police power and authority conferred "in the city's charter and the several statutes applicable." The Supreme Court of the United States stated the issues of fact raised by the pleadings, and treated the questions presented by the appeal in short as follows:
"Having heard the cause upon complaint, answers and argument of counsel the trial court, 'being of the opinion that no issue of fact for trial by jury is raised upon the pleadings,' made findings of fact, declared the ordinance valid and directed compliance therewith. The railroads offered no evidence, but asked continuation of the cause until the next term and that no further proceedings should be taken until the issues of fact raised by the answers could be decided by a jury. This was denied and they appealed. The Supreme Court held refusal to continue the hearing and transfer the cause to the civil docket for trial by jury was not erroneous, and said that 'the judge was ready to hear and determine the action but the railroads failed to offer testimony or evidence of any kind whatever.'
"We are unable to find that plaintiffs in error have been deprived of any federal right. They had full opportunity to present evidence to support their contentions in the trial court, but offered none."
The city, in that case, had filed a petition for mandamus to compel compliance with the ordinance, and the Southern Railway Company answered, attacking "the ordinance as arbitrary, unreasonable and subversive of rights guaranteed by the Fourteenth Amendment; also because it conflicted with the federal act to regulate commerce (U.S. Comp. St. § 8563 et seq.) by imposing undue expense upon them. The facts relied upon to support these claims were specified."
In the case of A. T. Co. v. Mo. P. R. Co., 247 Mo. 374,157 S.W. 502, the expediency or public necessity for the action pursuant to the ordinance was held to be a question exclusively for the legislative department of the municipality; and that action was conclusive upon the public and individuals affected, and beyond the inquiry of the courts
— if not plainly unreasonable and arbitrary in the manner to be executed or the means required to be employed. This is the effect of the due exercise of legislative discretion or express legislative grant of right of use of the public highways. Birmingham Co. v. McLendon, 210 Ala. 525, 98 So. 578; McLendon v. Boyles Co., 210 Ala. 529, 98 So. 581; B. R., L. P. Co. v. Milbrat, 201 Ala. 368, 78 So. 224; B. R., L. P. Co. v. Kyser,203 Ala. 121, 82 So. 151; City of Montgomery v. Orpheum Taxi Co., 203 Ala. 103, 82 So. 117; Henderson v. City of Enterprise,202 Ala. 277, 80 So. 115; Lindsay v. Mayor, 104 Ala. 257,16 So. 545, 27 L.R.A. 436, 53 Am. St. Rep. 44; Herbert v. Demopolis, 197 Ala. 617, 73 So. 321.
This is the effect of the decisions of the Supreme Court of the United States when the action required as to manner and means is not plainly unreasonable and arbitrary. Mo. P. R. Co. v. Omaha, 235 U.S. 121, 35 S.Ct. 82, 59 L.Ed. 157; Denver Rio Grande R. Co. v. Denver, 250 U.S. 241, 39 S.Ct. 450,63 L.Ed. 958, 961.
At the risk of repetition, we will say that the courts have no right to pass upon the question of reasonable necessity for the construction of bridges, viaducts, etc., to eliminate grade crossings within the municipality at the streets indicated; and the provisions of sections 2070, 2072 et seq., of the Code of 1923, are free, as we have seen, from constitutional objection. If the manner and time of the discharge of the required duty by the railroad company — dependent on the facts, requisitions, and materials to be employed and time specified — is found by the courts as having no substantial relation to the purpose to be accomplished, or to be plainly unreasonable and arbitrary, under the ordinance as administered, it will be declared violative of vested private rights. See authorities in State v. Goldstein, 207 Ala. 574, 575;1 City of Mobile v. Orr, 181 Ala. 308,61 So. 920, 45 L.R.A. (N.S.) 575; Yick Wo v. Hopkins,118 U.S. 356, 30 L.Ed. 220.2 On the other hand, if the due administration of the ordinance is not plainly unreasonable and arbitrary, or has a substantial relation to the purpose to be accomplished, in its effect upon the rights and properties of the Company, the sovereign or its duly authorized municipal agent or instrumentality will be upheld in the right exercise and discharge of police power, for the protection of the general public. It is in subordination to this that franchises to public service corporations are granted and upheld. B. R., L. P. Co. v. Littleton, 201 Ala. 141, 145, 146, 77 So. 565. And this department of state government has nothing to do with the wisdom of statutes not offensive to organic law. The question of public policy in regard to statutes is with the legislative department of government. Ex parte Lambert, 52 Ala. 79; Bouchelle v. State High. Com., 211 Ala. 474, 100 So. 884; Ala. Co. v. Mt. Vernon Co., 186 Ala. 622, 65 So. 287; Ex parte City of Birmingham, 199 Ala. 9, 74 So. 51; State ex rel. Woodward v. Skeggs, 154 Ala. 249, 46 So. 268.
The fact that the city has not acquired from abutting property owners the right to change the grade of the street is no reason why a proper ordinance may not be passed by the municipality. Due regard may be had for the provisions of section 2071 of the Code before construction of the proposed improvements may be had, if such be required for the protection of the rights of abutting owners. Section 235 of the Constitution; South. Ry. Co. v. Ables, 153 Ala. 523,45 So. 234. The provisions of sections 7532 and 7533 of the Code confer that right of condemnation for such purposes upon appellees. A reasonable time within which to comply is required by the ordinance, and such fact and necessity of required condemnation would be taken into consideration.
Adverting to the ruling on demurrer to the bill as a whole, and to that challenging specific aspects thereof, it should be said that, of the cases cited by appellant, Hood v. Southern Ry. Co., 133 Ala. 374, 31 So. 937, was to the effect that an appeal does not lie from an interlocutory decree on motion to strike parts of the bill. Such is not the case before us as to ruling on demurrer. And in Truss v. B. La G. M. R. Co.,96 Ala. 316, 11 So. 454, the question was whether appeal would lie from an order setting aside judgment by default; and it was held the order was not appealable. The cases of Pollak v. S. M. C. Co., 184 Ala. 331, 63 So. 531, and Sandlin v. Anders,210 Ala. 396, 98 So. 299, are to the effect that appellants are permitted to assign error as to ruling on demurrer and grounds thereof addressed separately to the facts or aspects of the bill.
The several demurrers or grounds thereof present: (1) The aspect of the petition alleging lack of public necessity. This is legislative, and not for review by the courts. (2) The aspect of the petition alleging unreasonableness and arbitrariness. This is the subject of an inquiry of fact presented by the bill as a whole. The ruling on demurrer or grounds thereof should be made to conform thereto.
We have indicated there was no error in overruling demurrer to the bill as a whole; that there was error in sustaining demurrer to the phases of the bill to the end that the governing body of the city in adopting the ordinance failed to exercise a reasonable or proper discretion in determining that the public necessity required the elimination of the grade crossings in question; and that there was no error in sustaining demurrer
challenging that phase of the bill directed to the ordinance adopted as being unreasonable, arbitrary, and oppressive in the requirements of the time, extent, material, or agencies to be employed in the elimination of said grade crossings.
The cases cited by appellant are addressed to rulings on demurrer challenging the right to maintain the bill as containing equity. Jones v. Barker, 163 Ala. 632, 50 So. 890; Beall v. Lehman-Durr Co., 110 Ala. 446, 18 So. 230; Ship v. Furnis, 69 Ala. 555. The case of Tillman v. Thomas, 87 Ala. 321,6 So. 151, 13 Am. St. Rep. 42, held that a demurrer to a bill on the ground that there was an adequate legal remedy is properly overruled, when the legal remedy is inadequate as to only one of the two aspects in which the bill is filed. These authorities do not reach the instant pleadings and decree thereon overruling demurrer to paragraph G of section 30.
The question of fact whether the ordinances are "plainly unreasonable and arbitrary" in the specifications submitted and required and the means employed, as having or not having a substantial relation to the purposes to be accomplished and the time of execution or compliance therewith, will be determined on the coming in of all the evidence in support or denial of such litigable facts indicated by the federal cases. Erie Co. v. Board, 254 U.S. 394, 41 S.Ct. 169, 65 L.Ed. 322; Denver R. G. R. Co. v. Denver, 250 U.S. 241, 39 S.Ct. 450, 63 L.Ed. 961; Mo. P. R. Co. v. Omaha, 235 U.S. 121, 35 S.Ct. 82,59 L.Ed. 157, and authorities collected in these cases.
In view of the delegation by the Legislature to the municipality of the full power and authority to require railroad companies to construct, etc., viaducts, bridges, and tunnels or parts of "* * * over, along or under the tracks at their own expense," I cannot concur in the construction given the statute by the majority that the power conferred upon the municipality by section 2070 et seq., Code, did not authorize any due change in the grade of the tracks of the railroad companies reasonably necessary to the elimination of grade crossings, for the safeguarding and protecting of those of the general public of the city at and upon said street crossings, having the superior right of the use of same. The statute does not limit the action of the city merely to that of a change of the grade of its streets and sidewalks, as is the expressed view of the majority. The statute is comprehensive, and gave authority to duly affect the whole subject-matter, having a right regard to the end in view — the elimination of unnecessary dangers and hazards at popular street crossings. To this end the municipality may reasonably require, under the statute, the elevation or depression of the grade of the streets and sidewalks, or that of the tracks of the railroad companies, either or both, in whole or in part, at and approaching said crossing and necessary to the elimination of said grade crossing.
The majority, Justices SAYRE, SOMERVILLE, MILLER, and BOULDIN, concurs in my treatment of the constitutional questions presented and argued. However, the majority view as to the effect of the statute and validity of the ordinance thereunder is not in accord with my construction expressed thereof, and it is stated by the CHIEF JUSTICE as follows:
1 93 So. 308.
2 6 S.Ct. 1064.