concurring in part. The following ordinances of the city of Goldsboro are attacked by the plaintiff upon the ground that they are an unlawful interference with the chartered property rights of t'he plaintiff, as well as an impediment in the discharge of its duty to the public, viz.:
Sec. 2. That the shifting limits on East and West Center streets shall be on the south from Spruce Street to the city limits, and north from Ash Street to city limits.
Sec. 3. That it shall be unlawful for any railroad or railway company to do any shifting on East and West Center streets, between Spruce and Ash streets, at any other time than from the hours of 6 :30 to 8 :30 A. M., and from 4:30 to 6 :30 P. M. Any railroad or railway company violating this ordinance shall be subject to a fine of $50 for each offense.
*366Sec. 4. That it shall be unlawful for any railroad or railway company to place any car and allow said car to stand for a longer period of time than five minutes at any point on East and West Center streets, between Spruce and Ash streets. Any railroad or railway company violating this ordinance shall be subject to a fine of $50 for each offense.
Sec. 5. That all railroad and railway companies owning tracks on East and West Center streets between Walnut and Tine streets in said city of Goldsboro are hereby required to lower said tracks so- as to make the same conform to the grade line of said streets, and said tracks to be filled in between the rails; the grade line of said street being as follows: Beginning at the present grade line, corner of Walnut and East and West Center streets, to be lowered 6 inches to corner of Mulberry and East and West Center streets, 10 inches to corner of Ash and East and West Center streets, and 18 inches to corner of Tine and East and West Center streets.
I concur fully in the opinion of the Chief Justice in so far as it refers to Ordinance No. 5, requiring the railways entering the city to lower their tracks at street crossings so as to conform to grade line of the streets.
This requirement does not interfere with the traffic of the railways or impede them in the performance of their obligations as common carriers, and evidently will add materially to the safe and convenient use of the streets. This ordinance seems to be supported by the weight of authority. But I find no authority to support the ordinance fixing shifting limits and undertaking to prohibit the use of portions of plaintiff’s tracks for shifting purposes during the large part of both the day and night; and none has been cited to us.
I take it to be settled now by abundant authority that when it is shown that a municipal ordinance unlawfully interferes with the chartered rights, duties, as well as business, of a common carrier, and will seriously obstruct the carrier in the discharge of its duties to the public, the enforcement of such ordinance will be enjoined.
In Dobbins v. Los Angeles, 195 U. S., 223, the Supreme Court of the United States says: “It is well settled that where prop*367erty rights would be destroyed, unlawful interference „ by criminal proceedings under a void law or ordinance may be reached and controlled by. a decree of a court of equity.” Smith v. Ames, 169 U. S., 466; Prentiss v. A. C. L. R. R., 124 U. S., 228; Waterworks v. Vicksburg, 185 U. S., 82; Milwaukee E. R. and L. Co. v. Bradley, 84 N. W., 875.
In Schlitz Brewing Co. v. City of Superior, 93 N. W., 112, 1, the Supreme Court of Wisconsin says: “This Court has recently had the general subject under discussion, and, after full consideration, has laid down the rule that equity may enjoin such prosecutions where they are resorted to or threatened as a means of preventing the enjoyment of property rights and there is not any way to adequately remedy the mischief.”
The principle upon which injunctive relief may be given in cases of this character is stated by this Court in R. R. v. Olive, 142 N. C., 265: “Injunctive relief against interference with the use of the right of way of a railroad company is not given because of any special consideration for these corporations, but because they are public agencies chartered, organized, and given the right of eminent domain in the contemplation of law to serve the public; they are a part of the system of highways of the State.” The Federal courts take the same ground, and for a similar reason. “It is settled,” said the Court, in Southern Exp. Co. v. Ensley, 116 Fed., 756, “that a court of equity should enjoin the enforcement of a municipal ordinance, though violations of it are punished criminally, when its enforcement will effect the illegal destruction of, or a grave interference with, a eorp orate franchise, in the operation of which the public have an interest.”
If this were not time, any municipal corporation by repeated arrests of the carrier’s servants, for violation of some ordinances, might bring its trains to a standstill, paralyze its business, and seriously injure the interests of the public, who are dependent upon the carrier’s service.
The defendant’s counsel based the right to enact the switching ordinances upon the police power of the city, contending that it is per se a nuisance to conduct such operations in a public *368street, because dangerous to persons crossing the street and disagreeable and annoying to those doing business and residing on both sides of the plaintiff’s track.
In the first place, the plaintiff’s track is not a public street, although there is a public street partly on the right of way on both sides of the track. The plaintiff was chartered by the General Assembly before the defendant, and acquired its right of way and built its road some years before the defendant became a municipality.
In the second place, operating a railroad, whether1 in moving its trains or in switching its cars, is a lawful business; and a business properly conducted under the sanction of law cannot be a nuisance per se, as is held by the Supreme Court in Transfer Co. v. Chicago, 99 U. S., 640. It is said in that case: “A Legislature may and often does authorize and even direct acts to be done which are harmful to' individuals, and which, without authority, would be nuisances; but in such a case, if the statute be such as the Legislature has power to pass, the acts are lawful, and are not nuisances unless the power has been exceeded.”
In the case of Atchison, T. and S. F. Ry. Co. v. Armstrong (Kan.), 80 Pac., 978, the Court says that an authorized business properly conducted at an authorized place is not a nuisance, for whatever is lawful cannot be wrongful. To same effect is Cooley on Torts, p. 67.
It was held in Drake v. R. R., 7 Barb., 508, that a railroad passing through streets in New York City when the cars were drawn by steam power, into a crowded part of the city, was not per se a nuisance. Similar decisions are R. R. v. Applegate, 8 Dana, 289; Moses v. R. R., 21 Ill., 516; Murphy v. R. R., 21 Ill., 516.
In Yates v. Milwaukee, 77 U. S., 498, the Supreme Court of the United States holds that "The question of nuisance or obstruction must be determined by general and fixed laws, and it is not to’ be tolerated that the local municipal authorities of a city declare any particular business or structure a nuisance, in such a summary mode, and enforce its decision at its own pleasure.” In that case, Mr. Justice Miller says: "This would *369place every bouse, every business, and all tbe property of a city at tbe uncontrolled will of temporary local authorities.”
In commenting on tbe powers of municipal corporations to declare wliat is a nuisance, Smith in bis Modem Law of Municipal Corporations, vol. 2, sec. 1106, says that “the city council may not, by a mere resolution or motion, declare any particular thing a nuisance which has not theretofore been pronounced to be such by law, or so adjudged by judicial determination.”
In a note to the above is the following: “In Chicago, etc., R. Co. v. City of Joliet, 79 Ill., 25, an action .by the city to enjoin the railroad company from running its trains through the public streets and over certain public grounds of the city, which the city council by ordinance has declared to be a nuisance, the Supreme Court of Illinois reversed the court below, which had granted the injunction, and remanded the case with directions to dismiss the bill, declaring that they would regard the ordinance as without effect upon the case, although the charter conferred upon the common council the power to abate and remove nuisances, and to punish the authors thereof, and to define and declare what shall be deemed nuisances, upon the authority of Yates v. Milwaukee, 10 Wall., 497, and S. v. Mayor, etc., 29 N. J. Law, 170.
This is not only the universal doctrine in this country, but is so held in England: Ry. Co. v. Brand, 4 Eng. and Ir. App., 171-196, in which case it is said that “No court can treat that as a wrong which the Legislature has authorized.”
In the case of New Orleans v. Lenfant, 126 La., No. 17995, 52 So. Rep., 575, it is held that “An ordinance which absolutely prohibits the doing of things, upon property which appears to be the subject of private ownership, which are harmless in themselves, and may or may not become nuisances, according to the manner in which they are done, is unconstitutional, because it seeks unduly to regulate and trammel the use of such property; and where it imposes arbitrary and unreasonable obligations, it is illegal, for that reason.” . In that case the city of New Orleans by ordinance undertook to prohibit the railway *370company from parking its cars on its own tracks on Elysian Fields Street, and tbe ordinance, was held to be an infraction of tlie company’s chartered rights.
This principle is clearly recognized and enforced by this Court in Thomason v. R. R., 142 N. C., 318, wherein it is held: “When a railroad company acquires ■ a xdght of way, in the absence of any restrictions either in the charter or the grant, if one was made, it becomes invested with the power to use it, not only to the extent necessary to meet the present needs, but such further demands as may arise from the increase of its business and the proper discharge of its duty to the public.
A railroad company may, if necessary to meet the demands of its enlarged growth, cover its right of way with tracks and, in the absence of negligence, operate trains upon them without incurring, in that respect, additional liability either to the owner of the land condemned or others.
In Taylor v. R. R., 145 N. C., 400, it is held that ihe lawful operation of a railway on its own right of way and premises cannot be an actionable nuisance, the Court saying that “the several acts charged against the defendant are well within its chartered powers, provided they are performed with reasonable care.”
In Morgan v. R. R., 98 N. C., 247, this Court recognized the right of a railroad company to move its engines and cars at will, when necessary, on its tracks along the streets of an incorporated town, Mr. Justice- Merrimon saying: “The defendant certainly had the right on its roadway to move its locomotive with or without cars attached to it, in the orderly course of such work, to and fro in making up its trains, detaching cars from one already formed and shifting them from one train or place to another.”
There is nothing in the R. R. v. Baptist Church case, 108 U. S., 317, which contravenes this principle, as is pointed out in Taylor v. R. R., supra, and in R. R. v. Armstrong, 80 N. W., 980. The railroad company had built a roundhouse and shops for storing, cleaning and repairing its engines, up against a church, and the Supreme Court sustained a recovery upon the *371ground that the right given by Congress to enter the city of Washington did not authorize it to purchase a lot and build roundhouses and shops at any place it should select, the Court saying: “As well might it be contended that the act permitted it to place them immediately in front of the President’s house or of the Capitol.”
In commenting upon that case the Supreme Court of Kansas says: “The plaintiff was permitted to recover, but it was because the company had no authority to build its engine-house at the place where it did.” R. R. v. Armstrong, supra.
In our ease the plaintiff has the right to use its tracks, granted by the Legislature in 1845, for all purposes incident to its business as a common carrier. The movement of detached cars and shifting engines-is as necessary to enable the plaintiff to discharge its public duties as is the running of its freight and passenger trains.
The plaintiff’s freight depot is at the southern end of Golds-boro, and those of two other railroad companies are at the north end, and the tracks over which shifting is prohibited for twenty 'hours out of twenty-four connects the respective freight stations.
There must be a frequent shifting and transfer of cars from one carrier to the other, absolutely essential in the transportation of freight. To restrict the use of this track to four hours per day and to undertake to fix shifting limits is practical confiscation of plaintiff’s chartered rights.
It is suggested that the railways can run their shifting engines and cars around the city of Goldsboro on a track constructed in recent years. This track runs through a passenger station and is used for the passage of the numerous trains of the three railways that enter Goldsboro.
It may be impracticable and dangerous to have such track used hourly by switching engines. That is a matter that must of necessity be left to the officials of the railways when they are acting within the powers conferred by the General Assembly. They are the persons to whom the law must look for the proper conduct of the business of the company and upon whom rests the burden of responsibility.
*372Whatever power the Legislature may have in the premises, it has not, in my opinion, conferred it upon the defendant; and therefore those ordinances are void.
In this age common carriers are held to the strictest rules and regulations, especially in the movement of. Height. Heavy penalties are denounced against them for unreasonable delay. If the railroad companies are to be hampered and restricted in the legitimate exercise of their chartered rights by all sorts of regulations enacted by the municipalities through which their roads are laid, it will be impossible for them to discharge the public functions for the performance of which they were chartered.
Me. Justice Walkee concurs in this opinion. Mb. Justice AlleN did not sit.