(for the majority). While in accord with the views as expressed in the foregoing opinion of Justice THOMAS as to the constitutional right of municipalities, when the authority is properly delegated by the Legislature, we do not agree with him as to the validity of the ordinances in question. The ordinances require the elevation of the tracks of the railroads over the respective streets dealt with by the construction of bridges over said streets and the removal of the railroad tracks so as to run over the streets, and in effect require what may be termed an elevated railroad through a considerable section of the city. We are of the opinion, and so hold, that said ordinances are not authorized by the statute, and are therefore invalid. Sections 2070, 2071, and 2072 of the Code of 1923, in dealing with the questions and under which the city must derive its authority to require viaducts, tunnels, etc., and which must be considered in pari materia, indicate a legislative intent to authorize viaducts or bridges over and along and tunnels or underground passageways under the tracks, and not the removal of the track so as to make it go under the street or over the same. The statute nowhere contemplates or authorizes the removal of the railroad track in order to accomplish the purpose for which it was enacted. In other words, the statute clearly means that, where the tracks cross a street, the city may require either a bridge or viaduct constructed over the tracks" or a tunnel "under the tracks," and, where the tracks extend along a street, it may require a viaduct "over the tracks" — all to the end of carrying the street over or under the tracks and letting the tracks remain as they were. Nor can the city get any comfort from the Act of 1911, p. 373, which, we may concede, but do not hold, may also apply to the ordinance in question.
While the majority are in accord as to the construction of the statute and the invalidity of the ordinances, the writer does not wish to commit himself to the constitutional question as discussed in the opinion of Justice THOMAS. It may be sound, but I do not think it at all necessary to a decision of this case. In fact, the constitutional question is only raised as against the statute in case it was so construed as to authorize the ordinances, *Page 187 and no constitutional point is made against it as presently construed, and I am opposed to committing this court to the constitutionality vel non of an imaginary statute; that is, one which the Legislature may never pass. "Sufficient unto the day is the evil thereof."
Reversed and remanded.
ANDERSON, C. J., and SAYRE, SOMERVILLE, MILLER, and BOULDIN, JJ., concur.
THOMAS, J., dissents.
GARDNER, J., not sitting.
On Rehearing.