WILLIAMS, Associate Justice.
Section 54 of the charter of the city of Dallas gave to the city council control and power over the streets, alleys, crossings and highways of the city and power to abate or remove
all encroachments or obstructions thereon; to open, widen, extend, regelate, grade, pave the streets and to protect same from encroachments ' and injury of any kind whatsoever.
Section 59 conferred power to regulate, establish and change the grade of all sidewalks, streets and premises, and to require and compel the filling up and raising same.
Section 113 gave authority “to direct and control the laying and construction of railroad tracks, turnouts and switches, and to require that they be constructed and laid so as to interfere as little as possible with the ordinary travel and use of the streets, and to require that they be kept in repair. To regulate the use of locomotive engines, to direct and control the location of cable and other street and railroad tracks, and all steam railroad tracks, and to require railway companies of all kinds to construct at their own expense such bridges, turnouts, culverts, crossings and other things, as the city council may deem necessary. To regulate the speed of all railroad trains within the-city, limits, and their stops at street crossings, and. to require said companies to keep the streets through which they run in repair, and to light the same whenever deemed necessary, and to prescribe the kind of light to be used, and to levy special taxes or assessments against such roads for street improvements, the same as against property owners.”
Section 158 provided a method by which the city council was empowered to “grade, fill, raise, repair, macadamize, remacadamize, pave, repave or otherwise improve” its avenues, streets and alleys, and provided that all such improvements should be entirely at the cost of the city, except that the owners of railroads operated “on such street, avenue or alley” were required to pay for improving the part of the streets between the rails and between the tracks and for two feet on each side of-the rails, etc., to secure and enforce which payment a procedure is prescribed.
On the 23d day of November, 1901, this action was begun by the city for a mandamus to compel the plaintiff in error, as respondent, to reduce its tracks in the city to the level of certain streets at crossings mentioned in the petition. The allegations are, in substance, that the respondent operates its road through the city approximately north and south; that the part of the track extending from Pacific Avenue, on the south, to the corporate line, on the north, a distance of about a mile and two-thirds, is upon an embankment ranging from nine-tenths of a foot to four and seven-tenths feet high, causing the track to stand at a considerable elevation above the adjacent land; that numerous streets, including twelve which are named, .cross the embankment and track, all of which arejnuch used by the public; that at the crossing of each street the embankment is an obstacle and impediment to the free and convenient and safe and satisfactory use and enjoyment of the streets by the public for ordinary travel. The petition then gives the elevation of the track above the streets at each crossing and proceeds to allege that it is
essential to the public convenience and safety that at the crossing of such streets the track should be reduced to the grade of the street; that in pursuance of power granted in its charter the city council, on the 9th day of October, 1901, adopted the following ordinance:
“ ‘Be it ordained by the city council of the city of Dallas:
“ ‘Sec. 1. That all railroad tracks in the city of Dallas shall be laid and constructed and so kept and maintained as to interfere as little as possible with the ordinary travel and use of the streets crossed by such railroad track, or tracks, by the owners of such tracks, and at their expense.
“ ‘See. 2. That whenever and wherever any railroad track or tracks cross or intersect any street of the city of Dallas, the person, association or corporation owning said track or tracks shall keep and maintain the same at a grade with the street on either side of the crossing, and whenever at any crossing with any street of the city of Dallas any railway track is either above or below the grade of the street crossed, such track or tracks shall by the owner thereof be reduced or elevated, as the case may be, to conform with the grade of the street intersected, and such crossing shall be made to conform to the grade of such intersected street entirely at the expense of the person, association or corporation owning the track or tracks crossing the street.
“ ‘See. 3. That after the track or tracks have been reduced or elevated to 'grade of' the intersected street, as above provided, it shall be the ’duty of the owner of the track or tracks to place and maintain the crossing in such a condition as to interfere as little as possible with the ordinary travel and use of the street/”
That the respondent in disobedience and violation of said ordinance continues to maintain its embankment and track as stated, and that the plaintiff has no other adequate remedy than a mandamus to compel a reduction of the grade, etc. The prayer was for a writ to compel the respondent to reduce its track to conform to the grade of the streets as required by the ordinance.
In its answer the respondent by general demurrer and special exceptions raised the following objections to the petition:
1. The ordinance set up is void for want of power in the city council to pass it, the provisions of the charter relied on as a grant of such power applying only to the laying and construction of railroad tracks after the passage of the charter, and there being no allegation that this track was of this class.
2. The ordinance itself was not intended to apply to tracks already laid, but only to such as should be laid after its adoption.
3. The plaintiff sought to require respondent to reduce its grade, not only at street crossings, but between them, when the charter only applied to crossings.
4. That the change proposed by the city in the grade of the crossings is in reality an attempt on its part to regrade its streets, ¡which is con
trolled by section 158 of the charter requiring the city to pay its proportion of the expense thereof, whereas the city seeks to have the respondent make the change and pay the entire expense.
5. That such action would be a taking and damaging of respondent’s property for no public use and without compensation.
6. That the petition does not allege the respective grades of the streets with reference to each other or with reference to any other grade, nor show that plaintiff has ever furnished to respondent information of such grades so as to enable it to comply with plaintiff’s demand.
The answer charged that the ordinance relied on by plaintiff was unreasonable and oppressive and was an effort to take respondent’s proport) without compensation and without due process of law, and contained, in support of this charge, a statement of facts, which may be condensed as follows:
1. That the embankment is not a menace or danger to public travel, but the crossings over it are safer and more advantageous to the public than they would be if flush with the street.
2.
That it owns its right of way and has' operated its road, as now constructed upon the embankment, for twenty-nine years; that the greater portion of the grade complained of was made and used at a time when the limits of the city did not embrace it and when there were no streets across it; that afterwards the corporate limits had been so enlarged as to include it and streets then extended across it as it now stands, since which time it has used its track as constructed with the knowledge, acquiescence, direction and consent of the city.
3. That a compliance with plaintiff’s demand would require an expenditure of more than fifty thousand dollars for the actual work, and, in addition, respondent’s traffic over its road would be suspended or seriously embarrassed and delayed, causing much more loss, the right of way being too narrow to enable respondent to so reduce its grade without suspending entirely all traffic over its track.
4. That compliance with the ordinance is impracticable, if not impossible, because (a) the grades of the streets are so different from each other (the difference being specified in the answer) that the track, if reduced to the grade of each crossing, instead of being reasonably safe and level, would form a series of undulations or alternating sags and elevations, rendering the operation of trains over it dangerous, if not impossible; (b) the proper construction of the crossing and grading of the street thereat would, in a manner specified, throw the surface water collecting in the streets, and heretofore passing along the gutters in other directions, upon the roadbed making it a channel or sluiceway for' the rain and storm waters and rendering it unstable, insecure and dangerous to life and property, the only means of preventing which would be the construction by respondent of a sewer, of the character designated in the answer, two miles in length, at a cost of sixty thousand dollars.
5. That defendant owns its right of way, fenced from adjoining-property and abutting upon each side of the several streets, and that the proposed action of the city.. is an attempt to regrade its streets, the consequence of which would be to take and damage respondent’s said abutting property without compensation.
6. That the ordinance denies to respondent the equal protection of the law, in that other named railroad companies are permitted, without hindrance or molestation by the city, to operate their trains upon embankments intersecting streets, which embankments are as high and higher than that of respondent, and the city has singled out defendant to compel it to lower its grade when it allows every other railroad in the city to maintain tracks across public traveled streets where the embankment is higher than that of respondent.
7. That respondent’s road south of that part involved in this action is also upon an embankment, crossed by public streets, and that, should it be required to lower its grade at the crossings now in controversy, the city would hereafter require it to take like action at the other crossings, and in such event the grade north of the Texas & Pacific Railroad, to be established in this suit, would not correspond with the new grade which the city will require to be established south thereof.
8. That the city has an adequate remedy for the evil complained of under another ordinance, which is set forth, and which provides, in substance, that railroad companies having tracks in the city of Dallas shall raise or lower the grade of same when required by the city council, and imposes penalties for a failure to comply after a prescribed notice, and also authorizes the city to make the change and maintain suits against the companies for the expense thereof.
The plaintiff excepted generally and specially to this answer, the special exceptions numbers 1 to 10 inclusive applying respectively to parts of the answer- as constituting no obstacle to the exercise of the police power by the city as follows: The first, second, third and fourth exceptions, to the allegations as to the establishment and operation of the road before the city limits included it and the subsequent extension of such limits and of the streets across the road, and the existence of the present crossings with the knowledge and acquiescence of the city; fifth, to the averments of inconvenience and expense to defendant in complying with the ordinance; sixth, to the charge of unreasonableness against an ordinance passed in the exercise of express and specific power from the Legislature; seventh, to the averments of damage to respondent’s abutting property; eighth, to the allegations of a denial of the equal protection of the law, for failure to show wherein there was such denial; ninth, to the allegation as to the embankment south of the Texas & Pacific Railroad and as to plaintiff’s future action with respect thereto; tenth, to the allegations setting up the penal ordinance as an adequate remedy.
At the trial in the District Court the respondent’s exceptions to the petition were overruled and plaintiff’s special exceptions to the answer
were presented seriatim and sustained, and the general demurrer was presented and sustained, and, as respondent declined to amend, the entire-answer was stricken out and judgment was entered upon the allegations in the petition awarding the mandamus as prayed foy.
1. Do provisions of the charter and of the ordinance, on which the suit is founded, apply to railroad crossings existing before their adoption? Section 113 of the charter is the one specially relied on as supplying authority and we may confine our attention to it. The most natural application of the language of its opening sentence: “To direct and control the
laying and construction
of railroad tracks,” etc., is to the original laying and construction, and power to require changes in the position of tracks already existing is not here clearly expressed. The further language of this sentence pursues the same thought, and if the question, whether or not power is conferred on the city council to require a change in the location of tracks previously laid, depended on this sentence alone, there would be difficulty in answering it affirmatively. But the second sentence removes the difficulty by conferring power “to require railway companies of all kinds to construct at their own expense-such bridges, turnouts, culverts, crossings and other things, as the city council may deem necessary.” This provision is clearly designed to grant to the council that police power usually conferred upon such bodies over crossings and like subjects. A street and a railroad track may cross each other upon the same surface, or one may pass above or below the other by means of a bridge, or viaduct, or tunnel. The crossing in contact at the same surface may be upon an embankment, or the street and the track may occupy the same level. The charter, in conferring power to require the construction of such “bridges, crossings, and other things, as the city council may deem necessary,” expressly commits to that body authority and discretion to determine the character and construction of crossings and other things incident thereto, so far as this involves only a legitimate and proper exercise of the ordinary police power over such subjects. The adoption of the ordinance was a plain attempt to exercise the police power and no other; and to so apply it as to remedy what was thought to be an evil existing in the condition of the street crossings. The rule that legislative acts are not to be construed as acting retrospectively unless the intention that they should do so clearly appears, has no application. The proper operation of such legislation as this is wholly prospective, in that-it seeks to remedy, for the future, evils requiring correction which have already grown up. It is merely the exercise of the power subject to which all persons use the public highways for their own purposes, to so regulate such use as to secure the rights therein of the people generally and protect them in the safe and convenient enjoyment thereof. The power exists at all times-in the Legislature and in those inferior governmental bodies to whom it may be properly committed, and its proper exercise is unrestricted by the mere previous existence of property rights. Therefore the construe
tion of the language of such a measure is not controlled by the principle of construction invoked by respondent. Chicago B. & Q. Ry. Co. v. Chicago, 166 U. S., 252-4. The language of the charter applies to railroads of all kinds, and there is nothing either in it or in the nature of the power to restrict its operation to railroads to be thereafter constructed. The ordinance is equally plain.
2. To the contention that it appears from the petition (a) that the work of reducing the track at the crossings to ■ the level of the streets should be controlled by section 158 of the charter and the expense thereof shared by the city and respondent, as provided by that section; and (b) that the reduction of its embankment, at the expense of respondent, would be a taking or damaging of its property without compensation, the same answer may be made, which is, that the suit of the. city is not an attempt to assert' either the power of taxation by local assessment, as given in section 158, nor the power of eminent domain, but is an assertion of the police power over crossings the validity of which must be tested by the principles applicable to that power. Section 158 was intended to confer upon the city the power to improve its streets by the species of special taxation for local improvements defined therein. It does not limit nor detract from the police power vested in the city council to regulate, in any way in which that power may be legitimately exercised, the use of the streets by railways at crossings. Lentz v. City of Dallas, 96 Texas, 265, and authorities cited. Nor does the limitation upon the power of eminent domain, that' property shall not be taken or damaged for public use without adequate compensation, of itself, impose any restriction upon the proper employment of the police power upon any subject lying within its sphere of operation. The question in all such eases is not merely whether or not property is damaged ór loss inflicted through the exercise of the power of the government to safeguard the lives and limbs of its citizens, but whether or not the action taken or attempted falls within the legitimate scope, and is a lawful exercise of that power, which question will be discussed later. It can not be seen from the allegations of the petition alone that the action taken by the city council exceeds its power over such subjects.
3. The complaint that the plaintiff seeks to compel the removal of the embankments, not only at the crossings, but between them, is not sustained by the prayer in the petition. The plaintiff concerns itself only with the condition of the track at crossings, leaving to respondent to make such adjustment of the remainder of its roadbed as may be made necessary by a compliance with the demand made upon it. The court can, however, see from the facts stated in the petition that, if the track should be reduced at the crossings, as demanded, it would become necessary to the preservation and practical operation of the road that the rest of the embankment be correspondingly reduced, and that this would in all probability result, practically, in a complete change in the grade of respondent’s roadbed throughout the distance mentioned in the petition.
If this fact alone would constitute a bar to the proposed action, it would, we think, follow that the general demurrer is good. But we do not think such is necessarily the case. This is only one fact, to be considered in connection with others, in determining whether or not reasonable and just occasion exists to sustain the demand of the city for the change of crossings. If that question be determined in its favor, it has a right to require the change, which would not be defeated by the necessity for other incidental alterations thereby made necessary in respondent’s roadbed.
4. The petition alleges the height of the embankment above the street at each crossing, and this, with the demand that the crossings be made level, gave the defendant sufficient information as to the action required of it.
We thus reach the conclusion that the propositions urged by respondent in support of its general and special exceptions should not be sustained, and this brings us to the rulings of the court upon exceptions-to its answer.
5. The contention is renewed in connection with the allegations of the answer that the facts stated therein show that the action sought by the city would constitute a taking and damaging of its property without compensation and without due process of law. That compensation is not required to be made for such loss as is occasioned by a proper exercise of the police power has already been stated. It is equally true that the infliction of such loss is not a taking without due process of law. The exercise of the police power upon subjects lying within its scope, in a proper and lawful manner, is due process of law. The distinction between these powers may now be elaborated by reference to a few of the authorities. In Railway Co. v. Chicago, supra, this language is used by Justice Harlan :
“The plaintiff in error took its charter subject to the power of the State to provide for the safety of the public, in so far as the safety of the lives and persons of the people were involved in the operation of the railroad. The company- laid its tracks subject to the condition necessarily implied that their use could be so regulated by competent authority as to insure •the public safety. And as all property, whether owned by private persons or by corporations, is held subject to the authority of .the State to regulate its use in such manner as not to unnecessarily endanger the lives and the personal safety of the people, it is not a condition of the exercise of that authority that the State shall indemnify the owners of property for the damage or injury resulting from its exercise. Property thus damaged or injured is not, within the meaning of the Constitution, taken for public use, nor is the owner deprived of it without due process of law. The requirement that compensation be made for private property taken for public use imposes no restriction upon the inherent power of the State by reasonable regulations to protect the lives and secure the safety of the people.”
In New York & N. E. Railroad Co. v. Bristol, 151 U. S., 556, it was
held that a railroad
company
could by the proper proceedings be required, at great expense to itself, to take up its track where it crossed a highway at grade and construct another crossing not at grade when the public safety demanded the change. This doctrine is sustained by many other authorities. Elliott on Railroads, sec. 1109, and authorities cited. .
There is some conflict among the authorities as to what a railroad com-, pany
may
be required
to
do at its own expense in the construction of crossings, but the weight of authority sustains the views expressed by Mr. Justice Harlan, and such is the position of this court. Gulf C.
&
S. F. Ry. Co. v. Milam County, 90 Texas, 357; Gulf C. & S. F. Ry. Co. v. Rowland, 70 Texas, 303.
The conflicting cases have arisen when new streets or other highways were being opened across existing railroads,
and
the question was as to the extent to which compensation must be made to the railway companies: All of the courts agree that the companies are not entitled to be paid • the expense of doing those things which may properly be required of them by virtue of the police power to secure the safety of persons using the crossings, but differ as to what things are within that category. In this case the streets are already established, properly we must assume, across the railroad, and there is no effort to apply the power of eminent domain. The existing crossings, as the city contends, are so dangerous to life and so inconvenient to travel as to require that the proposed changes be made. In the cases relied on by respondent no such condition had arisen and they are therefore not authority upon the question under consideration, which is as to the competency of the police power to require the correction of an evil demanded by the public welfare.
Another case (City of Seattle v. Columbia & P. S. Ry. Co., 33 Pac. Rep., 1048), so much relied on by respondent, may be distinguished in the same way. The railway had lawfully acquired the right to construct and had constructed its track along a street of the city of Seattle, and its property, including its track, had been destroyed by fire, its franchise to occupy the street remaining. It began rebuilding its track when it encountered a raised cross street which had been elevated by the city in regrading its streets, so that the track could not be built across it upon the grade which it had formerly occupied, and the controversy arose over the right of the railway company to cut through the regraded streets. The court held that the action of the city amounted to a destruction of the company’s franchise to occupy the street as formerly and that this could not be done without compensation. The right of the city to grade its streets was admitted, but it was said that the right "was not an absolute one, to be exercised at its option, regardless of its effect upon others, but its power must be reasonably exercised with reference to the rights of parties interested.” This doctrine has its application, as will presently be seen, to the question as to the validity of the attempted exercise of if.« police power by the city in this case, but the decision is not authority for the broad proposition, that, although the situation be such that the de
mand of the city is, under all thefacts and circumstances, a necessary or a just and reasonable requirement to promote the safety of the public, the fact that the enforcement of it will inflict pecuniary loss on the respondent is a complete bar. There was no contention in that case thai the railroad company was maintaining a crossing dangerous to persons using it, and the opinion had no reference to the question before us
The power of the Legislature to regulate the use of property and the-■carrying on of business so. as to protect the health, safety and comfort of citizens is recognized by all of the authorities, and its use is not to be defeated by the mere fact that loss or expense may be imposed upon the owners of the property or business. Fertilizing Company v. Hyde Park, 97 U. S., 659. The numerous cases on the subject of nuisances in this court and elsewhere are but instances of the use of this power. So the decisive question, as we have said before, is whether or not the action of the city is sustained by the existence of facts affecting the public welfare sufficient to justify such an apjffieation of the police power, and the answer to this question determines the one made by respondent as to whether or not the action of the city constitutes due process of law.
6. The power is not an arbitrary one, but has its limitations. It is commensurate with, but does not exceed the duty to provide for the real needs of the people in their health, safety, comfort and convenience, as consistently as may be ivith private property rights. As those needs are extensive, various and indefinite, the power to deal with them is likewise broad, indefinite and impracticable of precise definition or limitation. But, as the citizen can not be deprived of his property without due process of law, and as a privation by force of the police power fulfills this requirement only when the power is exercised for the purpose of accomplishing and in a manner appropriate to the accomplishment of the purpose for which it exists, it may often become necessary for courts, having proper regard to the constitutional safeguard referred to in favor of the citizen, to inquire as to the existence of the facts upon which a given exercise of the power rests, and into the manner of its exercise; and if there has been an invasion of property rights, under the guise of this power, without justifying occasion, or in an unreasonable, arbitrary and oppressive way, to give to the injured party that protection which the Constitution secures. It is therefore not true, as urged by plaintiff, that the judgment of the legislative body concludes all inquiry as to the existence of facts essential to support the assertion of such a power as that now in question. If this were true, if would always be within legislative-power to disregard the constitutional provisions giving protection to the individual. The authorities are practically in accord upon the subject, A few quotations will indicate the scope of the inquiry as far as it can be abstractly defined. In Dobbins v. Los Angeles, 195 U. S., 223, 25 Sup. Ct. Rep., 20, the law is thus stated by the Supreme Court of the Hnited States:
“It may be admitted that every intendment is to be made in favor of
the lawfulness of the exercise of municipal power, making regulations to promote the public health and safety, and that it is not the province of courts, except in clear cases, to interfere with the exercise of the power-reposed by law in municipal corporations for the protection of local rights and the health and welfare of the people in the community. But notwithstanding this general rule of the lav;, it is now thoroughly well settled by decisions of this court that municipal by-laws and ordinances, and even legislative enactments undertaking to regulate useful business enterprises, are subject to investigation in the courts with a view to determining whether the law or ordinance is a lawful exercise of the police power, or whether, under the guise of enforcing police regulations, there has been an unwarranted and arbitrary interference with the constitutional rights to carry on a lawful business, to make contracts, or-to use and enjoy property.” In Lawton v. Stelle, 152 U. S., 133-137, 38 L. Ed., 385-388, 14 Sup. Ct. Rep., 499-501, Mr. Justice Brown, speaking for the court, said upon this subject:' “To justify the State in thus interposing its authority in behalf of the public it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The Legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business or impose unusual and unnecessary restrictions-upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts.”
again, in Holden v. Hardy, 169 U. S., 366, 42 L. Ed., 780, 18 Sup. Ct. Rep., 383, the same justice, again speaking for the court, said: “The qufestion in each case is whether the Legislature had adopted the statute in exercise of a reasonable discretion, or whether its action be a mere excuse for an unjust discrimination, or the oppression or spoliation of a particular class.” After quoting other authorities to the same effect, the court uses this language: “But the exercise of the police power is-subject to judicial review, and property fights can not be wrongfully destroyed by arbitrary enactment. It was averred that the works would be so constructed as not to interfere with the health or safety of the people. No reasonable explanation for the arbitrary exercise of power in the case is suggested.”
In the case before us we have only a municipal ordinance to deal with, and it is the well'established doctrine in this and other courts that the question as to the. reasonableness or unreasonableness of such ordinances is open to inquiry in the courts. Milliken v. City Council, 54 Texas, 388; Mills v. Railway, 94 Texas, 247. An exception to this rule is that the reasonableness vel non of an ordinance can not be thus questioned if it be expressly authorized by the Legislature, and be a regulation which the Legislature itself has power to adopt and enforce. But aside from the
fact that there are limitations upon the power of the Legislature itself ®ver such subjects as that before us, this ordinance is not, in our opinion, within the exception. As we have already pointed out, the crossings of streets and railroads may be variously arranged, and the kinds of crossings to be adopted in particular situations is, in Dallas, committed to the discretion of the city council. The Legislature has not, itself, determined the character of any one to be adopted at any place. The full police power over the subject is granted to the city council, but to be used in subordination to the limitations upon such a power when vested in such a body, one of which is that its exercise must be reasonable. Even if the power claimed by the city should be derived from the first sentence of section 113 of the charter, the result would not be different, because the Legislature has not said what manner of “laying and construction will interfere as little as possible with the ordinary travel and use of the streets,” but has left that, also, to the discretion of the city council; and it is the judgment of that body alone that the character of crossing defined by the ordinance should be required, which leaves the ordinance as open as others to examination on a charge of unreasonableness.
The position is taken that the question as to reasonableness is one of law for the court and not of fact to be decided on a hearing of evidence, from which the conclusion is urged that the trial court, when hearing exceptions, properly held the ordinance to be valid. It is doubtless true that the question is one of law. The reasonableness or unreasonableness -of many ordinances will appear on their faces, and the court may, upon mere inspection, pronounce them to be valid or invalid.” In others the question may depend upon their operation upon particular person or conditions of fact which can not be known to the court until made to appear by evidence. Their effect may be just and reasonable in general but, in particular instances, maj be arbitrary and oppressive to the extent of invading fundamental rights. Evison v. Chicago St. P. M. & O. Ry. Co., 11 Law. Rep. Ann., 436; State of New Jersey v. Trenton Horse R. Co., 11 Law. Rep. Ann., 412. In such cases the court can only determine as to the validity or invalidity of the ordinance when the facts upon which the question depends are established; and, if they are in dispute, they are to be determined like other matters of fact, the question of validity still being one of law for the court to decide. When the case is tried by a jury the court is of course to instruct as to the law applicable to the differing states of fact which the evidence may tend to establish as in other cases. The court in this case, looking at the ordinance alone, could not say that it is void. As was said by the Supreme Court of Minnesota, in the Evison case, supra: “Much must be left to the judgment and discretion of the city council, and when they have exercised their judgment and discretion in passing an ordinance "it is prima facie valid, and, to justify a court in setting aside their action, its unreasonableness, and the want of necessity for it as a measure for the protection of life and próp
erty, must be clear, manifest and undoubted, so as to amount, not to a fair exercise, but an abuse of discretion, or a mere arbitrary exercise of. the power of the council. Citing Knobloch v. Chicago M. & St. P. R. Co., 31 Minn., 402. But, where it clearly and manifestly appears that the ordinance is unnecessary and unreasonable, the courts have the undoubted right to declare it void.”
The ordinance being prima facie a valid one, it was incumbent upon the respondent to show the contrary by facts stated in its pleading. This it undertook to do, and the question upon demurrer to the answer was whether or not the ordinance in its operation upon respondent when judged by the facts pleaded was unreasonable and arbitrary, and we are of the opinion that it was decided incorrectly. The court doubtless acted upon the opinion that the respondent could not thus question the action of the city council, and the Court of Civil Appeals took the same view; which we have held to be an‘erroneous one. The authorities relied on do not sustain the position. In the eases in which such exercise of the police jiower has been sustained, the parties were heard by the courts when they alleged facts to show that the measures taken against them were unreasonable, arbitrary and oppressive, and the actions brought in question have been upheld only when the parties attacking them failed to sustain them charges by the evidence. Thus in the Bristol case, supra, while the action of the authorities in requiring an abolition of the grade crossing was sustained, this significant language was used: “The objection is not that a hearing was not required and accorded, which it could not well be in view of the protracted proceedings before the commissioners and the Superior Court and the review in the Supreme Court, but that the scope of inquiry was not as broad as the statute should have allowed.” The opinion then carefully examines this contention and finds that the issues which had been tried were broad enough to embrace every fact essential to sustain the assertion of power in question, among which issues were these: “Whether or not the grade crossing ordered by the commissioners to be removed was in fact a dangerous one; and whether or not the company’s financial condition was such as to warrant the order.” So in the Fertilizing Company case, a hearing was given to it, by the court upon its application for an injunction to restrain the action being taken against it by the municipal authorities and the facts sustaining the propriety of such action ascertained before it was adjudged to be a lawful exercise of power. A like hearing was ordered in Dobbins v. Los Angeles, supra, and in Chicago M. & St. P. Ry. Co. v. Minnesota, 134 U. S., 418; and in all of the other eases cited in which the attempted exercise of the police power was challenged by allegations of facts showing unjust and arbitrary action a hearing upon the facts was either had or ordered by the appellate court,
7. Coming to the case made by the answer, we see that it puts in issue the very fact the existence of which is assumed in the effort to abolish these crossings, which is the existence of danger to the public caused by them and to be remedied by the proposed change. Some of its
allegations are general, but not more so than those of the petition to which they are a reply. It is said in argument that the court may know that there is danger to travelers in the use of the present crossings, and so we may; but, without knowing the facts of the situation, we can not know the extent of the danger, nor that the crossings are more dangerous than those to be substituted for them. This is the precise issue the answer makes. Much less can we know that the difference in the advantages of the two characters of crossings will be so great in favor of those contended for by plaintiff as to justify the imposition of such a burden upon respondent as the allegations show will result from the making of the change. If it be true that there is to be no benefit to the public from the proposed change, or a benefit which is inconsiderable when compared with the detriment to be suffered by the respondent, who will say that it is just and reasonable to subject respondent to such expense and loss as is averred? The petition itself so couples together its allegations pf danger with those of mere convenience as to leave it doubtful how far the consideration of each has weighed in determining the city's action. While the convenience of the public in the use of the streets is generally to be considered and promoted, it may well be that, in particular instances, it should not be allowed to outweigh, in the adoption of such measures as that under consideration, a great and disproportionate injury to be inflicted on private interests in advancing it. When it is found that a proposed action is to be fraught with such consequences as those averred in the answer, a public exigency corresponding^ great and urgent should be required in its support. In considering this phase of the case, at present, we can only treat all of the relevant facts well pleaded as true, and announce our opinion that they are sufficient to show the ordinance relied on to be unreasonable and arbitrary in its operation against respondent, and to entitle it to a hearing on the evidence.
8. There is another feature of the answer which, in our opinion, contains a good defense,-and it consists in the showing of the impracticability of complying with the ordinance. The ordinance is not intended to destroy the road nor to render impracticable its efficient operation. The rule declared by it as to-crossings is general, and if obedience to it is, in any instance, not reasonabfy practicable, not only should it be held to be unreasonable in such operation, but the intention that it should so operate ought not to be imputed to the city council. If it be true, as urged by counsel, that upon sufficient! y urgent public necessity the owner of a railroad track may be required to entirely remove it, the answer is that no such requirement has been made, the ordinance contemplating that the road shall remain where it is and be operated efficiently. Hence the action of the ciiy should not be regarded as intended to cripple respondent so that its duties can not be properly performed. Besides, a court will hardly grant a mandamus to require the doing of tliat which is shown to be impracticable.
9. From what has been said it follows that we are of the opinion that
the general demurrer and special exceptions 1,
2,
3, 4, 5, 6 and.9 should have been overruled. The facts to which these special exceptions relate were property stated as affecting in greater or less degree the question as to the unreasonableness of the ordinance.
10. The seventh, eighth and tenth special exceptions were property sustained for reasons which we will briefly state. (1) The allegations concerning the damage to respondent’s abutting right of way are wholly irrelevant to the inquiry. Respondent holds its estate in its right of way subject to sudh effects as maj follow from proper requirements as to crossings and its existence has no influence on the validity of the ordinance.
(2)
It is the ordinance alone which the answer alleges denies to respondent the equal protection of the law. It applies to all railroads and. on its face, shows no discrimination. No facts are stated showing that it is so enforced as to produce the result complained of, the allegations as to the singling out of respondent being too indefinite to show any rea l discrimination and probably having no support beyond the fact that respondent was first sued. (3) The ordinance of 1898 relied on as giving another adequate remedy can not be regarded as having that effect.' The duty sought to be enforced is that sought to be imposed by the last ordinance, that is, that respondent shall itself construct the crossings. The former ordinance only authorizing prosecutions or the doing of the work by the city. It furnishes no specific remedy to enforce the duty prescribed by the last ordinance, which, if valid, is property enforcible by mandamus. Besides, the validity of the former ordinance is open to the same attacks as that made upon the latter, and to others, viz., that it seeks to give power to the city to tear up and disturb railroad tracks whenever the city council may require a lowering or elevating thereof. It is unnecessary to pursue this subject further, as it is apparent that there is not a plain, adequate, certain and speedy remedy given by the ordinance.
For the error in sustaining exceptions to the answer, the judgment is reversed and the cause remanded.
Reversed and remanded.