Louisville & Nashville R. R. v. City of Bessemer , 108 Ala. 238 ( 1895 )

HEAD, J.

The charter of the city of Bessemer authorizes the city conncil to compel railroad companies to light their tracks, in such manner, and at such points, as it may consider necessary for the convenience and safety of the city. It is contended on the part of the city that this confers an unqualified, arbitrary power to require such character of lights, at such places, within the city, as the city council may desire, without regard •to whether the requirement is reasonable or unreasonable. There is no practical difference between this charter power and any other legislative authority to municipal corporations to pass ordinances. As in all such cases, the meaning is that the authority must be exercised in a reasonable manner. Unless the charter defines the extent, and manner and means of executing a particular power, leaving no discretion in the municipal body as to how it shall be done, the reasonableness of the ordinance is always open to inquiry. Here the manner of lighting the tracks and the places to be lighted are expressly left to the discretion of the city council, which discretion they must exercise in a just and reasonable way.

■The question of more difficulty is, whether the bill, when considered even on a motion to dissolve the injunction, is sufficient to show, that the ordinance therein set out, is unreasonable. We cannot consider the answer, in passing upon the motion, for the reason that it is not sworn to. Rule Ch. Pr. 35, Code p. 817. The ■'first fact alleged in the bill, touching the reasonableness of the ordinance, is, “that comparatively few trains pass over its said railroad at said part of said city required to'be lighted up by said ordinance, and the said Third Avenue, between 20th and 21st Streets, (the place? required to be lighted) is not so much travelled that it has become such a thoroughfare as to require lighting ih order that people and'Vehicles can cross said railroad at said point'with ease, dispatch/and safety, for they ■can'do so now.” 'The-..■second, is, that “a .compliance •with-sáid'Ordinance, on thevpart Of. complainant;'-would • necessitate a-greatexpen'diture of.money-by complainant. “'The third.-is-,• “that ’said --ordinance - is - unreasonable,' ' in that it requires .complainant to put. place, keep and maintain any light at all at such point.” The fourth, that it is “unreasonable, in that it requires complainant to put, place, keep and maintain an electric arc light of sufficient power and brilliancy to be determined by said city at said point.” There are other conclusions stated, as proper constructions of the ordinance, which appellant’s counsel very properly concede, in argument, are not well taken.

The dissolution of an injunction will be allowed only upon the want of equity in the bill, or the denials of a verified answer. Upon motion. to dissolve, technical errors or inaccuracies are not available. All amendable defects are regarded as amended. 3 Brick. Dig. 352, §§ 298, 299, 300. Whilst the statements of the present bill, which we have above set out, are little more than conclusions, and confessedly insufficient on demurrer, yet it was competent for the respondent to accept them, as averments of fact;- and in the absence of objection, by demurrer, they will support the equity of the bill, and justify the admission, in evidence, of such facts as will show the ordinance to be unreasonable, -without offending the rule that the allegata and probata must correspond. Ashurst v. Peck, 101 Ala. 499, 3rd and 4th. head notes.

Reversed, temporary injuction reinstated and cause remanded.