Summary
In Providence v. Union R. Co., 12 R. I. 473, an action was brought to recover moneys due for the use of streets by a railway under an ordinance providing for compensation for such use which was conditioned upon the assent of the city and upon such terms and conditions as the city council might impose.
Summary of this case from Hartford v. Connecticut Co.Opinion
December 9, 1879.
A general statute or ordinance without negative words, will not repeal the particular provisions of a former statute or ordinance, unless the two are clearly inconsistent. Six ordinances of the city of Providence allowed six horse railroad companies to use the streets of the city, two of the ordinances requiring payments therefore from two of the companies. The six companies afterwards consolidated. Three ordinances allowed three steam railroad companies to use the streets of the city, one of the ordinances requiring payments therefor from one of the companies. Subsequently the ordinances of the city were revised and in the revision the chapter on railroads contained general rules and regulations, continued the permission to use the streets, and prescribed certain conditions, mostly taken from the original ordinances, but said nothing about any payments. The revising ordinance contained a list of ordinances repealed, among which those requiring payments were not placed. Held, that the special ordinances requiring payments were not repealed by the revising ordinance. The charter of a horse railroad company subjected the construction and use of its track to the "assent of the city council, upon such terms and conditions . . . . as said city council may impose. Held, that this provision was sufficient authority for the imposition by the city of a money payment for the use of the streets.
ASSUMPSIT. Heard by the court, jury trial being waived.
Nicholas Van Slyck Stephen A. Cooke, Jr., City Solicitors, for plaintiff.
Charles Hart, James Tillinghast Francis W. Miner, for defendant.
This is an action by the city of Providence against the Union Railroad Company, a horse railroad company having its rails laid in the streets of the city, to recover moneys alleged to be due for the use of the streets, under two ordinances of the city, severally adopted September 14, 1863, and August 8, 1864. The claim is for the use of certain streets during a period of about two years next prior to July 1, 1877.
The railroad company claims that it has been released from any liability to pay for the use of the streets under the two ordinances, by a repeal of them. The two ordinances have never been expressly repealed; but in November, 1874, an ordinance was passed, to go into effect on the first Monday of January, 1875, entitled, "An Ordinance comprising the ordinances of the city of Providence," which was in effect a general revision, and which contained a chapter relating to railroads, embodying many provisions contained in previous ordinances relating to railroads, and among them certain provisions contained in the two ordinances above mentioned; and the railroad company contends that in consequence thereof the two ordinances have been repealed by implication. The company relies on a doctrine which has been applied by the courts to statute revisions. The doctrine is this: that a subsequent statute, revising, the whole subject matter of a former one, and evidently intended as a substitute for it, will operate as a repeal of it, though it contains no express words of repeal. Bartlett v. King, 12 Mass. 537, 545; Goodenough v. Buttrick, 7 Mass. 140, 143; Commonwealth v. Cooley, 10 Pick. 37, 39; Ellis v. Page, 1 Pick. 43, 45; Wakefield v. Phelps, 37 N.H. 295; Farr v. Brackett, 30 Vt. 344. The doctrine is without doubt as applicable to ordinances as to statutes. If, therefore, the chapter relating to railroads, in the revising ordinance, revises the whole subject matter of the two ordinances under which the city sues, and if it is evidently intended as a substitute for them, the two ordinances must be treated as ordinances which have been repealed by implication.
The two ordinances relate to two horse railroad companies, each ordinance to a different company. After their passage, the two companies were consolidated, with four other horse railroad companies, in the defendant corporation. The four other companies were severally subject to different ordinances, but neither of them was required to pay any money for the privilege of using the streets. Besides the horse railroad companies, there were three steam railroad companies which were permitted to use the streets under different ordinances, only one of which was required to pay money for the privilege.
The chapter of the revising ordinance relating to railroads in the first place prescribes certain rules and regulations for horse railroads, and, in the second place, provides for a continuance of the permission, granted by previous ordinances, to both horse and steam railroad companies, to use the streets, the permission being continued to them under the powers and obligations created by their several acts of incorporation, and subject to the provisions and upon the express terms and conditions of the chapter. The chapter then provides certain terms and conditions which are to be accepted by both horse and steam railroad companies, being for the most part terms and conditions which were contained in the original ordinances. There is, however, no provision in the chapter that any pecuniary compensation for the use of the streets shall be required of any company or companies, nor is there any condition enacted from any company or companies which is not enacted from all of them.
It thus appears that the provision for pecuniary compensation was exceptional, only three companies out of nine being required to pay it. The ordinances do not disclose any principle, on which the compensation was required, which could be expressed by a general rule. It also appears that the revising ordinance contained a code of rules and regulations which are binding on all horse railroad companies alike, without distinction, and a digest of terms and conditions which both horse and steam railroad companies are all equally required to accept and perform. Now, this being so, the question is, whether the provision for pecuniary compensation — which is contained in only three of the previous ordinances, there being nine of them, and which applies to only three of the companies, there being nine of them — can be treated as repealed by implication, because it is not reenacted in the revising ordinance. We think not. It could only have been reenacted an an addendum of terms required, not generally of all the companies, but only of certain companies by specification, and therefore the omission to reenact it can be readily accounted for without concluding that it was intended to be annulled. It is a matter which was not only not revised but which, moreover, did not belong among matters which were revised in the ordinance.
It may be said that the title of the revising ordinance imports that it comprises all the ordinances, and that it is thence inferable that it was meant to supersede all prior ordinances. This argument would have more force if the revising ordinance did not, in its final chapter, recite a long list of ordinances which are expressly repealed, and at the same time omit to include in the list, not only all ordinances relating to railroads, but also many other ordinances which, beyond question, still remain in full force.
It has been laid down as law that a general statute, without negative words, will not repeal the particular provisions of a former statute, unless the two are plainly inconsistent. Conley v. Supervisors of Calhoun County, 2 W. Va. 416; Brown v. County Commissioners, 21 Pa. St. 37; Bank of Louisiana v. Farrar, 1 La. An. 49, 54. We are therefore of opinion that the defence which we have been considering cannot be sustained.
The defendant corporation also contends that it is not liable, because the city had no power to exact a pecuniary compensation for the use of the streets. We do not think this defence is tenable. The charters of the horse railroad companies contain a provision that nothing in the charters shall be construed to allow the companies to construct, use, or continue their roads into, over, or through any street or highway of the city, "unless with the assent of the city council of said city, and upon such terms and conditions, and under such rules and regulations as said city council may impose." The language, unless limited by construction, is certainly broad enough to authorize the provision in question. The defendant cites certain cases which hold that a municipal corporation has no right, under a simple authority to license, to demand money for the licenses beyond a small fee for incidental expenses. The ground of decision in those cases is that the power to license is a mere police power, and therefore cannot be exercised with a view to revenue, unless conferred in terms which plainly authorize it. But the power here conferred is not a mere police power. Evidently it was conferred not only for the general good, but also to enable the city to protect itself as the body charged with the maintenance and repair of the streets, and it is to be construed fairly in view of its purpose. Rails in streets are a serious annoyance; they divert travel to other streets, and so necessitate an increase of care and expense, not only where they are laid, but also in such other streets. It is therefore not unreasonable to require the companies to pay something for their privilege. The city, in giving its assent, has required it; and the companies, in accepting the assent, have agreed to comply with the requirement. We think the agreement binds them. We give the plaintiff judgment.
Judgment for plaintiff for $5,589.18 and costs.