Opinion
July 3, 1951.
Petition from the Circuit Court for Dade County, Stanley Milledge, J.
Loftin, Anderson, Scott, McCarthy Preston, Miami, Russell L. Frink and John B. L'Engle, Jacksonville, for Scott M. Loftin et al., petitioners and respondent.
J.W. Watson, Jr., and John D. Marsh, Miami, for City of Miami, respondent and petitioner.
The orders which we here review were entered in a suit filed in the lower court by the Trustees of the Florida East Coast Railway Company against the City of Miami, in which the Trustees sought to obtain a declaratory decree and also to enjoin the City from enforcing certain provisions of its Ordinance No. 4061, regulating the operation of railroads within the corporate limits of the city. Affidavits were submitted by both parties on the question of the issuance of a temporary injunction; and, upon consideration thereof, the temporary injunction was granted except as to Subsection A of Section 11. The City then passed and adopted an amendatory ordinance, No. 4091, and subsequently filed its Answer in the cause, attaching thereto a copy of the amendatory ordinance. The answer alleged that Ordinance No. 4061, as amended by Ordinance No. 4091, was a reasonable regulation of the operations of railroads within its corporate limits, and prayed that the temporary injunction be dissolved. The Trustees thereupon filed a motion for a decree on the pleadings and a motion for summary final decree. The City also filed a motion for a dissolution of the temporary restraining order. Each of these motions was denied by the lower court; and both parties, by petition for writ of certiorari, have requested a review of the orders denying their respective motions and that such orders be quashed.
The provisions of the ordinance here under consideration appear to have been adopted (1) as a safety measure (a) by limiting the speed of trains within the corporate limits to 15 miles per hour, (b) by requiring trains to come to a complete stop at certain designated crossings, and (c) by prohibiting so-called "double crossings" (that is, where two trains enter upon or occupy a crossing simultaneously) except where the crossing is protected by manually or automatically operated gates; and (2) as a "general welfare" measure to relieve the inconvenience and delay to motorists and the traffic congestion caused by the blocking of crossings by trains during their various operations.
As to the safety-measure features of the ordinance, being Sections 2A, B and C; Sections 3A, and 3B; and Sections 4A and 4B, cases may be found on either side of the question of whether such measures are reasonable, and thus within the regulatory power of the city. We do not think, however, that under the circumstances here present, it can be reasonably said that the safety of the people of Miami requires the measures sought to be imposed on the railroads by the city.
The record shows that at the more than twenty crossings on the main line of the Florida East Coast Railway between Flagler Street on the south and 79th Street on the north, there has been erected, at a cost to the company of more than a quarter of a million dollars, some form of automatic or manually operated protective device including automatic and manually operated gates, manually operated street traffic lights, and automatic flashing lights. It is also shown that, for the first eight months of the year 1950, there were only twelve railroad crossing accidents in Miami involving trains operated by the Trustees. This is certainly a negligible amount, considering the many thousands of automobiles which pass over the railroad crossings in the City of Miami every day of the year, and reflects credit on the safety measures now in use by the railroads.
It was established by affidavits placed in the record by Trustees that the additional restrictions sought to be imposed would disrupt the company's interstate passenger train schedules and would seriously impede the interstate movement of freight cargo, thereby constituting a direct burden on interstate commerce. While the Trustees could avoid the restriction as to stopping by erecting gates or providing manually operated and controlled traffic signal lights, and likewise could avoid the "double crossing" restriction by erecting gates, this would require the expenditure of thousands of dollars on the part of Trustees. And, while such an expenditure could not be avoided by the Trustees in a case where the safety of motorists clearly required it, see Erie Railroad Co. v. Board of Public Utility Commissioners, 254 U.S. 394, 41 S.Ct. 169, 65 L.Ed. 322, we have no such case here. The question here is whether it reasonably can be said that safety requires the additional measures, and "the matter of expense is `an important criteria to be taken into view in determining the reasonableness of the order'." Atchison, T. S.F.R. Co. v. Railroad Commission, 283 U.S. 380, 51 S.Ct. 553, 557, 75 L.Ed. 1128, citing Washington ex rel. Oregon R. Nav. Co. v. Fairchild, 224 U.S. 510, 32 S.Ct. 535, 56 L.Ed. 863.
In this case, we think that the exceedingly low accident rate in the City of Miami is sufficient, without more, to show that the safety measures presently in use are entirely adequate; and that it is unreasonable to require the Trustees to suffer an impairment of their interstate passenger and freight schedules or, in the alternative, to spend thousands of dollars on additional safety devices. The lower court having had all these facts before it, and it being conceded by counsel for the respective parties that a formal trial would produce no additional facts, it must be held that summary judgment should have been entered as requested by Trustees, insofar as the provisions of Sections 2, 3 and 4 which we are here considering, are concerned.
As to that portion of the ordinance designed to relieve the traffic problem engendered by the operations of Trustees' trains, being Section 11 of the ordinance, we do not feel justified in holding the lower court in error for denying summary judgment in this respect.
The provisions of Section 11, as incorporated in its Subsections A, B and C, are contradictory and confusing. It is provided in Subsection A that crossings shall not be blocked for more than five minutes; but in Subsection C, the ordinance prohibits the blocking of a crossing at all times, except in an emergency. In Subsection B, it is provided that crossings shall not be blocked "for any period of time greater than five minutes out of any ten consecutive minutes." This provision is nullified, however, by a parenthetical provision immediately thereafter which states that "Crossings must be clear to street traffic fifteen minutes, consecutively, after being blocked for five minutes, consecutively." By an amendment to Section 11B, it is provided that a locomotive, engine, etc., "may re-enter the intersection prior to the expiration of such fifteen-minute interval" if the intersection is "clear of awaiting motor traffic." To "re-enter" means to "enter again." Does the amendatory provision, then, apply only to single trains which have previously blocked the crossing for five minutes, and are seeking to "re-enter" the same crossing? Since no good purpose would be served by prohibiting any train from entering a crossing if there was no awaiting traffic, this provision would probably be construed by the city as applying to all trains entering upon a crossing, rather than to a single train reentering the same after having previously blocked it. But the record and the briefs are not clear on this point.
Again, in Subsection C of Section 11, after prohibiting blocking of crossings at all times "except in cases of emergency," the ordinance provides that an emergency "shall at no time include the switching, loading or unloading of persons or property from locomotives, trains or cars." According to its plain terms, this particular portion of the ordinance prohibits absolutely the blocking of a crossing "in switching, loading or unloading" at any time, regardless of emergency requirements and regardless of whether anyone will be inconvenienced thereby, and is clearly arbitrary and unreasonable for those reasons alone, and without regard to the serious impediment to Trustees' operations which such prohibitions would entail. The City states in its brief, however, that "section 11C of the ordinance should be read in conjunction with other provisions of the ordinance and given a reasonable construction. If this is done, this section will prohibit the railway from parking its trains and cars in such a way as to obstruct crossings, certainly a reasonable requirement under the circumstances." (The emphasis is supplied.) In another portion of its brief, however, the City states that "Under such circumstances it is unreasonable for the people of the City of Miami to require the railroad to permit them to pass over the tracks from one section of the City to another without hindrance 15 out of each 20 minutes? We contend that it is not, and on the contrary, suggest that it is unreasonable for the railroad to demand the right to use the ways over its track as switching areas, regardless of the inconvenience such operations occasion the inhabitants of the City." (The emphasis is again supplied.) Does, then, Section 11C prohibit "parking" only, or does it also prohibit "switching"? How does the City define "parking"? These questions are not answered in the record, nor in the briefs.
Under such circumstances, we cannot hold the lower court in error in refusing to declare Section 11 unreasonable, on the basis of the facts now appearing of record, and when the manner in which it will be construed and enforced by the City is not clear. Nor can we, for the same reasons, hold that it was error to deny the City's motion for a dissolution of the temporary injunction.
It might be here mentioned — and it is immediately apparent — that the engineer of a single train which had not previously blocked a crossing would find it impossible to comply with the provisions of Subsection B of Section 11 (which, as heretofore noted, requires that a crossing be clear of railroad traffic fifteen minutes consecutively after it has been blocked for five minutes consecutively) unless he had outside assistance of some kind. Neither the City nor the Trustees have suggested how this could be done; and it occurs to us that in order to comply with this provision, and thereby avoid the penalty of a fine or imprisonment, or both, consequent upon a violation thereof, the Trustees might have to maintain a 24-hour watch at each of its railroad crossings within the City of Miami, solely for the purpose of directing the railroad traffic at such points. When it is considered that there are some 65 crossings in use by Trustees' freight trains and some 20 crossings used by their passenger trains within the city limits of Miami, the cost of such a traffic-control system would seem to be enormous. There is, however, nothing in the record on this point; and, under the rule above cited in another connection, it would appear that "the matter of expense" would be relevant to the question of the reasonableness of this particular section of the ordinance. Further testimony appears to be necessary, also, on the effect of such provision on the interstate operations of Trustees' freight and passenger trains.
While we do not wish to lengthen this opinion unduly, we do not feel it amiss to state that we are fully cognizant of the difficulties confronting the City in working out a solution to its traffic problem which will strike a proper balance between the right of the carrier to enjoy the use of its road at the crossing, on the one hand, and the right of the travelling public to use the street, on the other hand. It must be remembered, however, that the phenomenal growth of Greater Miami — which is a matter of such general knowledge that this court can well take judicial notice of it — has made enormous demands upon the railroads in the movement of passengers, foodstuffs, building materials, and other freight cargoes into and out of the city, and that it is the effort on the part of the railroads to fulfill these demands which has resulted in the traffic problem sought to be alleviated by Section 11 of the ordinance. Having created a continuing demand for such facilities, the operation of which has created the traffic problem here involved, it would appear that, in all fairness, the people of the City of Miami should adjust themselves, with such equanimity as is possible, to the fact that they must inevitably suffer some inconvenience until such time as the Trustees obtain authorization to construct a new station at another location which, admittedly, will relieve the situation.
For the reasons stated, the "safety measure" provisions of the ordinance, being Sections 2A, B and C; Sections 3A and B; and Sections 4A and B, must be held to be unreasonable and arbitrary; and as to such provisions the petition of the City is denied and that of the Trustees is granted. The writ will issue as prayed for by Trustees, and the order of the lower court denying the Trustees' motion for summary judgment is quashed, insofar as the above mentioned sections are concerned.
As to Section 11, the petitions of both parties are denied, so that the position of the City as to the interpretation of such section may be clarified, either by testimony or by an amendatory ordinance, and so that further testimony may be taken as to the reasonableness of the ordinance, as intended to be enforced by the City.
As to the City, writ denied.
As to the Trustees, the writ is granted in part and denied in part.
SEBRING, C.J., and TERRELL, CHAPMAN, THOMAS, ADAMS, and HOBSON, JJ., concur.