On Petition for Rehearing.
Myers, J.18. The learned counsel for appellant have presented an able and exhaustive brief upon petition for a rehearing. They urge that the court overlooked their insistence upon the allegation of the complaint, that the repealing ordinance is void, as violative of article 1, §10, of the federal Constitution, and article 1, §24, of the state Constitution, prohibiting the impairment of the obligation of contracts. They were not overlooked. On the contrary, they furnished the subject of the court’s careful consideration, and the opinion seemed to be sufficiently explicit in itself, in covering such question, without pointing out the sections to indicate the basis for it. "We may here add however, as pertinent to the question, the proposition that the prohibition as .to impairment of contract obligations does not extend to subjects affecting the health, safety or general welfare of the public. Chicago, etc., R. Co. v. Nebraska, ex rel. (1898), 170 U. S. 57, 18 Sup. Ct. 513, 42 L. Ed. 948; Budd v. New York (1892), 143 U. S. 517, 12 Sup. Ct. 468, 36 L. Ed. 247; Powell v. Pennsyl*223vania (1888), 127 U. S. 678, 8 Sup. Ct. 992, 1257, 32 L. Ed. 253; Barbier v. Connolly (1885), 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923; Butchers Union, etc., Co. v. Crescent City, etc., Co. (1884), 111 U. S. 746, 4 Sup. Ct. 652, 28 L. Ed. 585; Stone v. Mississippi (1879), 101 U. S. 814, 25 L. Ed. 1079; Slaughter-House Cases (1872), 16 Wall. 36, 21 L. Ed. 394.
10. It is urged “that the court misapprehended the force of the averments of the complaint, and that the fact that a double track had been laid, and for nearly thirty years had been used, in a portion of Division street without complaint or inconvenience, is sufficient to show that ordinance No. 62 was not only authorized by statute, but that it was reasonable, and the public interests and public travel were fully and adequately protected, and that the repealing ordinance was not only unreasonable, but was wholly unnecessary.” This insistence is made for the reason that the ordinance provides quite fully for the manner of operating trains, keeping up repairs on the tracks, keeping street crossings in repair, etc. This, however, as we view it, is no answer to the proposition that all such grants, as are here claimed, are subject to the exercise of the police power, which would operate irrespective of the contract, and two tracks may have long been maintained on some portion of Division street, without inconvenience to, or complaint from, the public. That establishes nothing as to the right or power of the city to determine for itself whether another portion should be obstructed, or the public inconvenienced. It may furnish an argument, but it presents no controlling fact.
17. It is next urged that we were in error in holding that there would necessarily be more obstruction with two tracks than with one, the argument being “that it necessarily requires twice as long to pass a given number of ears over a given portion of a single track than it does if the same volume of traffic is divided, and one-half *224passes over one track, and one-half over another parallel track at the same time.” If that were the whole of the proposition, there would seem to be force .in it, but let us put a case: Suppose there are two tracks, and both are necessary to accommodate 'the present volume of traffic, then we might have the street occupied practically all the time by opposite moving trains, increasing both the occupancy of the street longitudinally and the crossings, and it is quite well known that safe clearance of two trains upon a double track requires from twenty to twenty-two feet, to say nothing of the danger from teams or vehicles moving longitudinally, in close proximity to moving trains. Granting that it is possible that two tracks may be laid within eighteen feet, so that trains will pass over them, that still leaves the projection of cars on each side of at least eighteen inches, or three additional feet, which is more of an obstruction in a moving train than the two tracks would be in the width occupied by them, because of the danger from projecting or falling matter, control of teams and the like. Looking to the question of practicability, as appellant insists, ive cannot say, as a matter of laAv, that íavo tracks would not be an obstruction of the primary use to which the street was dedicated, which is a legislative question. Wabash R. Co. v. City of Defiance (1897), 167 U. S. 88, 17 Sup. Ct. 748, 42 L. Ed. 87; Mayor, etc., v. Baltimore Trust, etc., Co. (1897), 166 U. S. 673, 17 Sup. Ct. 696, 41 L. Ed. 1160; Chicago, etc., R. Co. v. Whiting, etc., St. R. Co. (1894), 139 Ind. 297, 26 L. R. A. 337, 47 Am. St. 264.
16. We still think that the allegation of the complaint that there will be less obstruction with two tracks than with one, cannot be regarded as an allegation of a fact. Appellant’s trains can be so scheduled that passing points can be arranged beyond the limits of a single track. This arrangement may require a different handling of trains from that AAdiich could be accomplished Avith Iaa-o tracks, but we cannot be guided or controlled by considera-. *225tions of convenience or inconvenience, when brought face to face with the conditions here disclosed.
It is claimed that the court has ignored the rule in White v. Chicago, etc., R. Co. (1890), 122 Ind. 317, 7 L. R. A. 257. That case presented the one question of damages to an abutting' owner, and no questions as to the police or legislative power of the city, as to the width of the street, the degree of interference with its use, or the sufficiency of the unoccupied portion for the usual purposes of a street were presented or decided.
19. It is next urged that the ordinance attempts “to take away the right of plaintiff to use even the portion of the street already occupied by it under the consent given by the ordinance for double tracks,” and “that the opinion seems to go upon the theory that this ordinance repeals only the privilege to lay a double track on that part of the street for which the privilege was given, on which the track was already laid.” The brief on petition for rehearing is the first intimation of any claim that the ordinance seeks to take away the right to use the portion of the street now occupied by a double track. We do not mean to hold that there might not be such a right, but no such claim of right is asserted or intimated prior to the filing of the brief on petition for rehearing. We recur to the complaint, in which it is alleged that on January 1, 1881, a double track was laid on Division street between the St. Joseph river and Michigan street, and has ever since been used by appellant; that the ordinance of October 14, 1901, attempted to repeal so much of ordinance No. 62 as gives the right to lay a second track in said street, and that when an attempt was made by appellant on October 6, 1902, to lay a track west on Division street to General Taylor street, it was prevented, and there is no pretense of an attempt to interfere with or a claim of right to interfere with the double track now laid, and the prayer of the *226complaint is that appellees be “enjoined from in any way hindering or preventing plaintiff from laying said additional track, as aforesaid.” We were clearly correct in onr theory that only the question of laying the additional track was involved.
20. “The public necessity of the exercise of the police power in any case is a matter addressed to the discretion of the legislature; but whether a given regulation is a reasonable restriction upon personal rights is a judicial question.” 2 Tiedeman, State and Fed. Control §214. See, also, Ladd v. Southern, etc., Mfg. Co. (1880), 53 Tex. 172; Chicago, etc., R. Co. v. People, ex rel. (1873), 67 Ill. 11, 16 Am. Rep. 599; Toledo, etc., R. Co. v. City of Jacksonville (1873), 67 Ill. 37, 16 Am. Rep. 611; City of Erie v. Erie Canal (1868), 59 Pa. St. 174; State, etc., R. Co. v. East Orange (1879), 41 N. J. L. 127. “What are reasonable regulations, and what are the subjects of police powers, must necessarily be judicial questions. The lawmaking power is the sole judge when the necessity exists, and when, if at all, it will exercise the right to enact such laws.” Toledo, etc., R. Co. v. City of Jacksonville, supra. Referring to the act requiring the sounding of whistles at highway crossings, it was said in the case of Pittsburgh, etc., R. Co. v. Brown (1879), 67 Ind. 45, 33 Am. Rep. 73, that “the necessity and propriety of the enactment in question were exclusively for the legislature, and not for the courts, to pass upon.” In 2 Redfield, Railways (5th ed.) 461, in speaking of the same requirement, it is said: “Of the importance or necessity of which the legislature must be the judge.”
It is urged that our opinion is not supported by the cases of Lake Roland, etc., R. Co. v. Mayor, etc. (1893), 77 Md. 352, 26 Atl. 510, 20 L. R. A. 126, and Mayor, etc., v. Baltimore Trust, etc., Co. (1897), 166 U. S. 673, 17 Sup. Ct. 696, 41 L. Ed. 1160, for the reason that both eases arose under the same ordinance, and “the state court found and held that *227the power of the city council to amend or modify or repeal its ordinance ivas expressly written in the statute of the state authoi’izing the passage of such ordinance.” This insistence ivas made when the case was originally before us, and we are unable to discover any authority for it. We have gone over the matter again in an attempt to discover whether we were in error in our understanding of those cases. The legislative act was a curative and ratifying act, ratifying the ordinance after its passage, and concluding with the declaration: ! ‘ The said mayor and city council to have the same power and control hereafter in reference to the enforcement, amendment, or repeal of said ordinance as it has or would have in respect to any ordinance passed under its general powers” (Acts 1892 [Md.] Chap. 112.) There was no general statute authorizing amendment or repeal, and there was no right of repeal reserved in the ordinance itself, and this clause was no more than the statement of the common law, so far as the police power was involved. It was not urged by counsel that there was any reserve right of repeal in the ordinance or under any statute, and the case is not'predicated upon any reserve right of repeal. The court said: “The repealing ordinance was passed because, as stated in the preamble, the city council thought that it was required by ‘the public safety and convenience, and proper regulation of the use of the streets.’ These considerations for the repeal were within their legislative judgment and discretion, and the evidence shows that the ordinance has ‘a real and substantial relation’ to the objects proposed. It is therefore not subject to supervision or review by the courts.” Lake Roland, etc., R. Co. v. Mayor, etc. (1893), 77 Md. 352, 380. “It has been well said in reference to such general grants of power that as to the degree of necessity for municipal legislation on subjects committed to their charge, the mayor and city council are the exclusive judges, while the selection of the means and manner (contributory to the end) *228of exercising the powers which they may deem requisite to the accomplishment of the objects of which they are made the guardians, is committed to their sound discretion." Mayor, etc., v. Radecke (1878), 49 Md. 217, 33 Am. Rep. 239.
11. In the case of Gloucester Ferry Co. v. Pennsylvania (1885), 114 U. S. 196, 5 Sup. Ct. 826, 29 L. Ed. 158, it is said: “The power to regulate commerce * * * is the power to prescribe the rules by which it shall be governed, that is, the conditions upon which it shall be conducted.” In the case of Mayor, etc., v. Baltimore Trust, etc., Co., supra, it is said: “If it be said in this case that the city had already regulated the use by prescribing that there should be-two tracks, the answer is that this power of regulation is a continuing power; it is not exhausted by being once exercised, and so long as the object is plainly one of regulation, the power may be exercised as often as and whenever the common council may think proper; the use of the street may be subjected to one condition to-day, and to another and additional one tomorrow, provided the power is exercised in good faith and the condition imposed is appropriate as a reasonable regulation, and is not imposed arbitrarily or capriciously.”
21. There is here no charge of bad faith, or arbitrary or capricious imposition, nor any allegation disclosing the reason for the action of the council, and we must assume that there was some reason for it. The presumption is in favor of the reasonableness of the council’s action, unless the contrary appears on the face of the ordinance, or is disclosed by the complaint. Schmidt v. City of Indianapolis (1907), 168 Ind. 631, 14 L. R. A. (N. S.) 787, 120 Am. St. 385; City of Indianapolis v. Bieler (1894), 138 Ind. 30; State, ex rel, v. White (1882), 82 Ind. 278, 42 Am. Rep. 496; Trenton Horse R. Co. v. Trenton (1890), 53 N. J. L. 132, 20 Atl. 1076, 11 L. R. A. 410; Mayor, etc., v. Clunet (1865), 23 Md. 467; Van Hook v. City of Selma *229(1881), 70 Ala. 361, 45 Am. Rep. 85; Mayor, etc., v. Alabama, etc., R. Co. (1892), 98 Ala. 134, 13 South. 141, 46 Am. and Eng. Corp. Cas. 631; People v. Detroit United Railway (1903), 134 Mich 682, 97 N. W. 36, 104 Am. St. 616, 63 L. R. A. 746; City of St. Louis v. Western Union Tel. Co. (1894), 63 Fed. 68; Illinois Cent. R. Co. v. City of Chicago (1897), 169 Ill. 329, 48 N. E. 492; Larkin v. Burlington, etc., R. Co. (1892), 85 Iowa 492, 52 N. W. 480; Stafford v. Chippewa, etc., R. Co. (1901), 110 Wis. 331, 85 N. W. 1036.
22. We cannot say that an ordinance is unreasonable which would restrict to one track the number of railroad tracks on a street, for a distance of three or four squares, when more than one might tend to interfere with the free use of the street by the general public, or affect the security of life or property in its use. People, ex rel., v. Fort Wayne, etc., R. Co. (1892), 92 Mich. 522, 52 N. W. 1010, 16 L. R. A. 752; Detroit City Railway v. Mills (1891), 85 Mich. 634, 48 N. W. 1007; Street R. Co., etc., v. West Side St. R. Co., etc. (1882), 48 Mich. 433, 12 N. W. 643; Dubach v. Hannibal, etc., R. Co. (1886), 89 Mo. 483, 1 S. W. 86; Commonwealth v. City of Frankfort (1891), 92 Ky. 149, 17 S. W. 287.
5. Reduced to its last analysis, the proposition is this: Does a complaint, which alleges that a street is eighty-two and one-half feet in width, without any allegation as to the width of the roadway, that the obstruction of such street will be much less with two tracks than with one, and that there is ample room for general travel, without any showing as to the conditions or requirements of travel on such street, or any improper motive in the council’s action, and which is predicated upon the necessities (¡f the railway from the increased volume of traffic upon an extensive main line of railway which is being double-tracked, and which it is sought to double-track through a portion of the street, make such a case that the court can *230say, as a matter of law, that to restrict the line to a single track for a distance of three or four squares is an unreasonable regulation, under a statute which provides that “the common council shall have exclusive power over the streets, highways, alleys and bridges, within such city” (Acts 1867 p. 33, §61, 3 Davis Supp. p. 94), and another section thereof which provides that the common council shall have power “to provide by ordinance [or the security of citizens and others from the running of trains through any city, and to require railroad corporations to observe the same” (Acts 1867 p. 33, §53, subd. 42, 3 Davis Supp. p. 88), or which overcomes the presumption of the actions being reasonable, and based upon sufficient grounds, and within the discretion of the city authorities? Suppose the city should see fit to prohibit the propelling of ears over the street by steam? It would result in quite as serious inconvenience, we may well suppose, to appellant, even if it had two tracks, as the restriction to one track; yet such power is undeniable, and we could not set up our judgment as to its being unreasonable. Washington, etc., R. Co. v. City Council, etc. (1900), 98 Va. 344, 36 S. E. 385; State v. Mayor, etc. (1861), 29 N. J. L. 170; Great Western R. Co. v. City of Decatur (1864), 33 Ill. 381; Philadelphia v. Lombard, etc., R. Co. (1863), 3 Grant’s Cas. (Pa.) 403; State v. Mayo (1909), 75 Atl. (Me.) 295; State v. Tupper (1838), Dud. L. (S. C.) 135; Inhabitants, etc., v. Mayo (1858), 45 Me. 560; 2 Redfield, Railways (5th ed.) *564; 3 Elliott, Railroads (2d ed.) §1096n and notes. Renewed attention to and reconsideration of the subject fails to lead us to any other conclusion than that previously announced.
The petition for a rehearing is overruled.