Dewey v. Railroad

Hoke, J.,

after stating the case: The Revisal of 1905, sec. 1097, subsec. 3, empowers and directs the Corporation Commission to require, when practicable, and when the necessities of the case, in the judgment of the Commission, demand it, any two or more railroads which now or hereáfter may enter any city or town to bave one common or union passenger depot for tbe security, convenience and accommodation of tbe traveling public, and to unite in tbe joint expense of erecting, constructing and maintaining said union passenger depot, etc., etc.

Another clause of said section confers on tbe railroads so ordered to construct a depot, tbe power to condemn land for tbe purpose, and tbe section closes witb tbe proviso that nothing in the section shall be construed to authorize tbe Commission to require tbe construction of a union depot should tbe railroad companies bave separate depots which, in tbe opinion of tbe Corporation Commission, are adequate and convenient and .offer suitable accommodation for tbe traveling public.

Tbe power of tbe Legislature to enact a statute of this character has been established By numerous and well-considered decisions of this and other courts of supreme jurisdiction and is no longer open to question. Industrial Siding case, 140 N. C., 239; Corporation Commission v. Railroad, 139 N. C., 126, and authorities cited.

Tbe Corporation Commission having taken action under tbe above statute, tbe right of tbe parties to tbe controversy may be made to depend largely upon its true interpretation.

Tbe statute in its principal purpose may be considered as remedial in its nature, and as to that feature will receive a liberal construction. Endlicb on Interpretation of Statutes, secs. 107-108. Lewis’ Southerland Statutory Construction, sec. 336.

In a note to this citation from Endlicb it is said: “In any classification of acts of Parliament, tbe most important is that by which they are divided into remedial and penal statutes; or, rather, into such as are construed liberally and such as are construed strictly.”

Tbe author in tbe text further says:

“Of such statutes, as distinguished from penal statutes, more especially is it said that they are to be construed liberally to carry out tbe purpose of tbe statute to suppress tbe mischief and advance tbe remedy contemplated by tbe Legislature.”

And further:

“Tbe object of this kind of statute being to correct a weakness in tbe old law, to supply an omission, to enforce a right, or redress a wrong, it is but reasonable to suppose that tbe Legislature intended to do so effectually, broadly, and completely, as tbe language used, when understood in its most extensive signification, would indicate.”

Another -accepted rule of construction is that “whenever a power is given by statute, everything necessary to make it effective or requisite to attain tbe end is inferred.” Souther-land Statutory Construction, 508. Endlicb on Construction of Statutes, 418.

Tbe first author, at page' 518, further states: “It is a well-established principle that statutes containing grants of power are to be construed so as to include all things necessary to accomplish the object of the grant. -The grant of an express power carries with it, by necessary interpretation, every other power necessary and proper to the execution of the power expressly granted.”

Applying these principles to the case before us, we think it clear that the statute empowering the Corporation Commission where practicable, and under the limitations contained in the act, to require railroads to construct and maintain a union depot in cities and towns, and giving to the railroads subject to such order the express power to condemn lands, will confer on the roads the incidental right to make such changes in their line and route as are necessary to accomplish the purpose designed and to make the depot available and accessible to the traveling public, as contemplated by the act. The authorities cited by the defendant from 70 Eed. Rep., pp. 748 and 940, are to the effect that the right of eminent domain is never implied and can only be exercised under and by virtue of an express grant. Here, as stated, tbe power of eminent domain is given in express terms to tbe railroads, wbicb act under tbe -statute and pursuant to orders properly made by tbe Corporation Commission. We do not think tbe position of defendant is well taken, that tbe. Corporation Commission can only act when tbe roads can connect on tbe rigbt-of-way as already laid out. Such a construction is altogether too restricted, and if allowed would go far to defeat tbe beneficent purpose of tbe Legislature.

Tbe words of tbe act are general, and tbe remedy was intended to apply to all tbe towns and cities in tbe State where, in tbe legal discretion of tbe Commissioners, tbe move is practicable, tbe convenience of tbe traveling public require it, and the existing facilities, in tbe judgment of tbe Commissioners, are inadequate.

If this be a correct interpretation of tbe statute, then it follows of necessity that tbe plaintiffs must fail in their action. Tbe defendants, having legislative authority to make tbe proposed change, are acting within their right. So far as now appears, they are only doing, or proposing to do, “a lawful thing in a lawful way”; and in such case, if barm comes to a third person, it is not a wrong for wbicb^tbe law. will afford redress. It is damnum absque injuria. Thomason v. Railroad (plaintiff’s appeal), at this term. Broom’s Legal Maxims (8 Ed.), p. 200; Pollock on Torts (7 Ed.), pp. 126-7, 8 A. and E. Ency. (2 Ed.), 697. Tbe doctrine is well stated in this last citation as follows: “It may be stated' as a general rule that if tbe Legislature, acting within its constitutional limitations, directs or authorizes the doing of a particular thing, tbe doing of it in tbe authorized way and without negligence cannot be wrongful. If damage results as a consequence of its being done, it is damnum absque injuria, and no action will lie for it.”

Tbe principal objection urged by plaintiffs against tbe validity of these proceedings is that a railroad company has no right to change its route without legislative authority. That, having once exercised its discretion in locating its line, the power is exhausted, and such location cannot be thereafter changed. The position is sound, as a rule, and the authorities cited in the carefully prepared and learned brief of appellants’ counsel are apt to support it. It is not necessary, however, that the power to change a route should be given in the charter or a direct amendment thereto; but, as stated in, one of the authorities, “It may be given by charter or by special enactment or by the general railroad laws of the State.” Under the construction we have given the statute, there is legislative authority for the proposed change, and the power of eminent domain having been expressly given to the-extent required to carry out the purpose of the statute, this position of plaintiff is now without force and the authorities referred to no longer apply. It is further insisted that by sec. 2513 of the Revisal the contemplated change can only be made when sanctioned by a two-thirds vote of the Aider-men of the City of Goldsboro. It may be that such sanction could be found in the fact that the Board of Aldermen, as such, were the actors who set this proceeding in motion, and, in their .resolutions of 6 July, 1905, and 4 July, 1906, unanimous, so far as the record discloses.

But, without passing on this question, we are of opinion that this requirement of a two-thirds vote only applies where the railroad, of its own volition and for its own convenience, contemplates a change of route.

It is found in the general railroad law as a clause in the section which confers on the directors of a company the power to voluntarily change their route; and does not apply to cases like the present, where the Corporation Commission, acting under express legislative authority and direction, require the railroad to make the change for the convenience of the general public.

Again, it is insisted that the site selected is not within the corporate limits of the city, and that to permit this contemplated action on the part of the roads would be to sidetrack the city of Goldsboro, to the great damage of the city and the citizens owning property therein; and we are referred to decisions where railroad companies have been restrained from a move of this character at the instance of citizens owning property within the limits of the city or town, and which would suffer depreciation in value by reason of the change. But we do not think this position is borne out by the facts, or that it is available in law to sustain the plaintiffs.

The site selected is at the terminus of Walnut Street, an important and much-frequented street of the city, just 210 feet from the corporate line, within four blocks of the former depot on Center Street and within the police jurisdiction of the city.

There is authority for the position that such placing may be considered within the city as a matter of reasonable construction. Old Ladies’ Home v. Hoffman, 117 Iowa, 716; City of Wichita v. Burleigh, 36 Kansas, 34.

But, however this may be, the Corporation Commission, the body authorized and required by law to determine the matter, after full and due inquiry, have fixpd upon this as the proper site, and they give, as it seems to us, good reason for their decision, as follows: “That the location agreed upon is accessible and available for each of the three railway companies; that it is within four blocks of the site used at present by the said railway companies, and the grounds are sufficient and ample for the construction of waiting-sheds and buildings necessary for the convenience, comfort and protection of the traveling public; that there is constant and increasing danger resulting from the operation of the trains on Center Street, and that, to a great extent, will be removed. by adopting the proposed site.”

We do not tbink, therefore, that tbe facts support tbe claim of plaintiffs, that tbe city of Goldsboro is being sidetracked. And, on tbe authorities ■ cited to tbe effect that a citizen of tbe town, owning property therein, may, under given circumstances, interfere by action to prevent a railroad from removing its tracks from the town limits, they all rest on tbe basic position that tbe contemplated move on tbe part off tbe railroad is without warrant of law.

Where, as in this case, tbe railroads are proceeding to an authorized act, and in a lawful manner, there is no legal wrong done tbe plaintiffs, and tbe Judge below was right in denying relief. There is no error, and tbe judgment below is affirmed.

Affirmed.