City of Raleigh v. Norfolk Southern Railway Co. , 4 N.C. App. 1 ( 1969 )

Parker, J.

Decision of the questions presented by this appeal is controlled by the principles announced in Winston-Salem v. R. R., 248 N.C. 637, 105 S.E. 2d 37. In that case the North Carolina Supreme Court held that a city ordinance of Winston-Salem requiring a railroad to bear the entire cost of reconstructing an overpass to accommodate the widening of the street below was unconstitutional as an unreasonable exercise of the police power, under the circumstances of that case. In that case the City had sought mandamus to enforce the challenged ordinance. In the present case, in very similar factual circumstances, the City seeks a declaratory judgment to ascertain its power to impose the entire costs upon the railroad. Pursuant to a written agreement between the parties the new overpass has been constructed by the defendant railway company, the City has reimbursed the railway its costs thereby incurred, and the parties have submitted to the Court for determination the question of which of them must ultimately bear the expense. A bona fide justiciable controversy being presented, the Declaratory Judgment Act, G.S., Chap. 1, Art. 26, offers an appropriate procedure for resolving the conflict. In deciding the extent of the plaintiff City’s power in the case before us we are guided by the same standards and principles as was the Court in the Winston-Salem case, i.e., whether under all existing circumstances the City’s exercise of the police power is reasonably calculated to accomplish a purpose falling within the legitimate scope of the power without burdening unduly the person or corporation affected. 16 Am. Jur. 2d, Constitutional Law, § 277, p. 537. Reasonableness in this context is a matter to be determined by the Court, Durham v. R. R., 185 N.C. 240, 117 S.E. 17, and is said to be based on human judgment, natural justice, and common sense in view of all the facts and circumstances, Bonnett v. Vallier, 136 Wis. 193, 116 N.W. 885; 16 Am. Jur. 2d, Constitutional Law, § 278, p. 539.

As noted in Winston-Salem v. R. R., supra, the standard of reasonableness by which exercise of the police power is tested does not change, but changed conditions as they evolve may bring the subject matter in question within the operation of approved testing principles of reasonableness or remove it therefrom. The effects of exercise of the police power in particular situations may vary as social, economic and political conditions change; therefore, what was once a proper exercise of such power may later become arbitrary and unreasonable as a result of changed conditions and circumstances. In Winston-Salem v. R. R., supra, the Court found that conditions which in earlier years might have brought the attempted exercise of the police power by the City within the testing standard of reasonableness, and which had supported earlier Court decisions so holding, had so changed that exercise of the power had become no longer reasonable and therefore no longer compatible with constitutional requirements of due process. Under the special facts and all the surrounding circumstances of the present case, we reach the same conclusion and for essentially the same reasons emphasized by the Supreme Court in Winston-Salem v. R. R., supra.

In Winston-Salem v. R. R., supra, the Court pointed out that most of the earlier cases which had upheld imposition of financial burdens upon railroads in making crossing improvements had relied upon considerations of public safety and public convenience — the protection of the traveling public from the dangers of grade crossing accidents and the inconveniences caused by traffic interruptions at heavily traveled crossings — with greater emphasis being placed on the factor of public safety. In the present case as in Winston-Salem v. R. R., supra, “the element of public safety usually involved in railroad crossing cases is entirely missing; and the need for promoting the public convenience derives from the necessity for relieving traffic congestion, principally in other areas of the City, not caused in any manner by the location of the railroad tracks.” There is not now, and never has been, any crossing at grade at the point where Peace Street intersects defendant’s tracks.

From the time defendant’s tracks were first constructed into the City of Raleigh continuously until the present time, they have been carried over Peace Street on a bridge. The original bridge did not deteriorate or become in any manner in itself unsafe to the public passing under it. Rather, the need to rebuild the bridge resulted entirely from the City’s street widening project, which in turn was made necessary to accommodate a greatly increased flow of vehicular traffic which was caused by factors totally unrelated to the existence or location of defendant’s railroad tracks or the operation of trains thereon. Furthermore, the facts stipulated by the parties and the evidence submitted by the defendant fully support the trial court’s finding of fact that economic conditions have evolved favorably to the financial position of the City and unfavorably to that of the defendant, and that the construction of the new bridge will result in no benefit to the defendant but solely to the benefit of its principal competitors. Under these circumstances, we agree with the trial court’s conclusion that to require defendant to bear the cost of constructing the new bridge would be so arbitrary and unreasonable as to fail to meet the test for a valid constitutional exercise of the City’s police power.

At the trial plaintiff attempted to introduce evidence in the form of opinion testimony by expert witnesses which would have tended to show that the width of Peace Street, before it was widened, was unsafe for the volume of traffic using the street at that time. Plaintiff assigns as error the court’s action in excluding this proffered testimony. This evidence, however, would not have tended to show that the bridge under existing conditions was itself a safety hazard, but would have shown only that the width of the street was unsafe, thereby justifying the City’s decision to widen it. It is true that the excluded evidence would further have tended to show that if Peace Street had been widened and a new bridge had not been constructed, a traffic bottleneck would possibly have arisen at the bridge, thereby causing a safety hazard to arise. As in Winston-Salem v. R. R., supra, however, this situation would have resulted entirely from the City’s attempt to relieve traffic congestion by widening Peace Street and would not have been caused by the existence or location of defendant’s tracks. In referring to the same situation in Winston-Salem v. R. R., the Court said, 248 N.C. 637, 650, 105 S.E. 2d 37, 46:

“True, the City’s evidence discloses that the present underpass is not wide enough to accommodate the full width of the proposed new street which is to intersect and cross the present street under the trestle at an oblique angle so as to make the proposed X crossing under the trestle. Therefore, unless the opening under the present trestle is widened, the new street will have to be reduced in width at the approaches to the present abutments. This would create on the new street a bottleneck at the approaches to the underpass and make for a hazardous situation for motorists approaching the underpass on the new street. But this situation of possible danger would be entirely of the City’s making in its attempt to eliminate traffic congestion, originating principally in other areas of the City, by establishing a north-south intercity thoroughfare to accommodate traffic to be diverted and rerouted into it from outlying areas. Thus, in the case at hand the need for rebuilding the trestle is to promote the public convenience by providing a new street, and the need for opening the new street is to provide a necessary link in the proposed intercity thoroughfare, designed to relieve traffic congestion brought about by reason of the increase in motor vehicular traffic, and not by any conditions at or along the railroad right of way tending to interrupt or impede the free movement of traffic at the crossing. Hence the need for the new trestle is not brought about by the location of the railway roadbed or by the operation of trains thereon.”

In the present case the railroad is not contesting, and we are not concerned with, the right of the City to widen its streets. We are concerned here only with whether the City may require the railroad to pay the entire cost of rebuilding its bridge to accommodate the increased width of the City street passing below. The testimony which the City offered, and which the court excluded, tended to show the wisdom on the part of the City authorities in deciding to widen Peace Street; it did not tend to show that it would be reasonable for the City to require the defendant railway to pay the cost of a new bridge made necessary by such widening. There was no prejudicial error in excluding such evidence.

Appellant’s brief seeks to distinguish the facts which existed in Winston-Salem v. R. R., supra, from the facts here, by pointing out that in that case the need for widening the trestle arose from the opening of a new street, whereas in the present case the need arises from the widening of an existing street. We do not consider this difference to be a controlling basis for distinguishing the two cases. In both cases the necessity for widening the roadbed under the railroad bridge arose from the need of a growing City to provide wider arteries for carrying greatly increased vehicular traffic from one part of the City to another. Whether the City chose to meet this need by widening an existing traffic artery or creating an entirely new one, is immaterial insofar as bearing upon the only question before us for decision, which is the reasonableness of imposing the resulting cost of widening the bridge upon the defendant railway company. For the reasons which were set forth in the decision of the Supreme Court in Winston-Salem v. R. R., supra, which we deem to be controlling in the present case, the decision of the trial court is

Affirmed.

MallaRD, C.J., and BroCK, J., concur.