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Mr.
Justice Pitney delivered the opinion of the court:
The Atlantic Coast Line Railroad Company,
plaintiff in error, has succeeded to the ownership of the property,
franchises, and rights of the Wilmington & Raleigh Railroad Company,
which was chartered by the general assembly of North Carolina in the
year 1833, and whose name was afterwards changed to Wilmington &
Weldon Railroad Company. Under its charter powers the original company
constructed its railroad from Wilmington to and into Wayne county, North
Carolina, passing through the place which later, and in the year 1847,
became incorporated as the town of Goldsboro, now the city of Goldsboro,
defendant in error.
For the purposes of its railroad, the Wilmington &
Raleigh Company acquired a strip of land 130 feet wide, extending
through Goldsboro from north to south, and constructed its road upon it
before the incorporation of the town. The land was acquired in part
under deeds conveying title in fee simple, in part by condemnation
proceedings which conferred upon the company, as is claimed, the
equivalent of a fee simple. Afterwards, two other companies, designated
respectively as the North Carolina Railroad Company and the Atlantic &
North Carolina Railroad Company, with the consent and permission of the
Wilmington & Raleigh, or Wilmington & Weldon, and under
agreements with that company, constructed their railroad tracks upon the
same 'right of way.'
The town naturally grew along the railroad, and
the right of way, so far as not occupied by the tracks, was and still is
used for the ordinary purposes of a street, without objection by
plaintiff in error or its predecessors in title. In laying out the town,
this right of way was designated as a street 130 feet wide; the portion
lying east of the tracks being designated as East Center street, the
portion on the west of the tracks as West Center street. Cross streets
were laid out, designated successively (commencing at the north) as
Holly, Beech, Vine, Oak, Ash, Mulberry, Walnut, Chestnut, Spruce, Pine,
and Elm streets. East and West Center streets have become the principal
business streets of the town and the portion between Ash and Spruce-four
blocks-is the heart of the city. During the years since the
incorporation of Goldsboro numerous industries have been and are now
located on East and West Center streets, and the track of plaintiff in
error, in addition to its use as a part of the main line, has been and
is used by the company in shifting cars into and out of these
industries, and also for reaching the freight terminals of the other two
railroads, which are in the northerly part of the town; the terminal of
plaintiff in error being in the southerly part. A belt line has been
built around the city, over which through passenger trains and some
freight trains are moved, but the use of the old main line for
connecting with the other terminals, for shifting cars into industries,
and loading tracks along the right of way, and for the passage of
certain of its trains, is claimed by plaintiff in error to be still
essential to its business.
The municipal corporation has for many years
worked and maintained its streets and cross streets, including so much
of the surface of East and West Center streets as lies outside of the
space actually occupied by the railroad tracks. More recently it has
instituted a system of street grades and of drainage extending
throughout the city, and has paved a considerable part of East and West
Center streets in conformity to the grade so established. From Chestnut
street north the railroad tracks are ( or, at least, prior to the
municipal action complained of they were) from 6 to 18 inches above the
established street grade; the tracks south of Chestnut street being in a
cut from 1 to 8 feet deep.
In November, 1909, the board of aldermen passed
an ordinance or ordinances containing the following provisions:
Section 1 rendered it unlawful for any railroad
company to run any freight or passenger train on East or West Center
streets at a rate of speed exceeding 4 miles per hour, and required the
companies to have flagmen proceed 50 feet in front of every train to
warn persons of its approach.
Section 2 provided that the shifting limits on
East and West Center streets should be from Spruce street to the city
limits on the south, and from Ash street to the city limits on the
north; thus excluding the four blocks between Spruce and Ash streets.
Section 3 declared it to be unlawful for any
railroad company to do any shifting within those four blocks at any
other time than between the hours of 6:30 and 8:30 A. M., and between
4:30 and 6:30 P. M.
Section 4 rendered it unlawful for any railroad
company to place any car and allow it to stand for a longer period than
five minutes at any point on East and West Center streets within the
same four blocks. Section 5 required all railroad companies owning
tracks on East and West Center streets between Walnut and Vine (four
blocks) to lower the tracks so as to make them conform to the grade line
of the streets, and to fill in the tracks between the rails; the
required lowering being specified as 6 inches from Walnut to Mulberry,
10 inches between Mulberry and Ash, and 18 inches between Ash and Vine
streets. Substantial penalties were prescribed for violations of these
prohibitions.
Plaintiff in error began this action against the
city of Goldsboro in the superior court of Wayne county, seeking to
restrain the enforcement of the ordinances. A temporary restraining
order was granted. At the hearing, the objection to the enforcement of 1
was abandoned by plaintiff; as to the other sections the court vacated
the restraining order. Upon appeal, the supreme court of North Carolina
affirmed the judgment. 155 N. C. 356, 71 S. E. 514.
The present writ of error under 709, Rev.
Stat., U. S. Comp. Stat. 1901, p. 575 (Judicial Code, 237 [36 Stat. at
L. 1156, chap. 231, U. S. Comp. Stat. Supp. 1911, p. 227]),
is based upon the insistence, made in the state
courts and there overruled, that the ordinances impair the obligation of
the contract contained in the charter of the company, in contravention
of 10 of art. 1, of the Federal Constitution, and deprive the company of
its property without due process of law, in contravention of the 14th
Amendment. The supreme court of the state construed the section
forbidding shifting as having reference to the 'cutting out and putting
in' of cars in the making up of a train before it is despatched upon its
journey, and not as referring to the 'transfer' of a train of cars,
already made up by plaintiff in error, to another railroad company for
transportation. In view of the fact that plaintiff in error has shifting
yards farther from the center of the city, where its trains can be made
up and at least the chief part of the necessary shifting done, the court
held it to be a reasonable exercise of the police power to forbid car
shifting, except within the limited hours specified, on the four blocks
of the plaintiff's track that lie in the heart of the city; declaring
this regulation to be necessary for the convenience and safety of the
public at the crossings.
With reference to the section requiring the lowering of the tracks
between Walnut and Vine streets so as to make them conform to the grade
lines of the streets, the court held that the Company took its charter
subject to the right of the state to lay out new roads and streets, and
to require the company to make such alterations as would prevent the
public passage over its tracks from being impeded; and that there was no
contract exempting the railroad from changing its grade at crossings
when required.
In this court, plaintiff in error abandons its attack upon the right of
the city to require a change of grade at the street crossings. The
controversy, therefore, is now limited to (a) the restrictions imposed
by 2 and 3 upon shifting operations on East and West Center streets
between Spruce and Ash streets; (b) the prohibition of 4 against the
standing of cars for a longer period than five minutes within the same
four blocks; and (c) the requirement under 5 that the tracks from Walnut
to Vine streets shall conform to the grade of East and West Center
streets, and shall be filled in between the rails, elsewhere than at the
crossing streets. Upon the argument, it was stated by counsel
representing the city that plaintiff in error had complied with the
decision of the state court as to 5, at least, to the extent of lowering
its tracks. But there was no clear admission of the fact in behalf of
plaintiff in error, and we shall therefore disregard the supposed
compliance.
It is, among other things, contended by plaintiff
in error that the ordinances are not within the powers conferred by the
legislature of North Carolina upon the municipal corporation. This is a
question of state law, which, for present purposes, is conclusively
settled by the decision of the supreme court of North Carolina in this
case. Merchants' & M. Nat. Bank v. Pennsylvania, 167
U.S. 461, 462 , 42 S. L. ed. 236, 237, 17 Sup. Ct. Rep. 829, and cases
cited; Lombard v. West Chicago Park Comrs., 181 U.S. 33, 43 , 45
S. L. ed. 731, 737, 21 Sup. Ct. Rep. 507.
A municipal by-law or ordinance, enacted by
virtue of power for that purpose delegated by the legislature of the
state, is a state law within the meaning of the Federal Constitution.
New Orleans Waterworks Co. v. Louisiana Sugar Ref. Co., 125 U.S.
18, 31 , 31 S. L. ed. 607, 612, 8 Sup. Ct. Rep. 741; Hamilton
Gaslight & Coke Co. v. Hamilton, 146 U.S. 258, 266 , 36 S. L.
ed. 963, 967, 13 Sup. Ct. Rep. 90; St. Paul Gaslight Co. v. St. Paul,
181 U.S. 142, 148 , 45 S. L. ed. 788, 791, 21 Sup. Ct. Rep. 575; Northern
P. R. Co. v. Minnesota, 208 U.S. 583, 590 , 52 S. L. ed. 630, 633,
28 Sup. Ct. Rep. 341; Grand Trunk Western R. Co. v. Railroad
Commission, 221 U.S. 400, 403 , 55 S. L. ed. 786, 787, 31 Sup. Ct.
Rep. 537; Ross v. Oregon, 227 U.S. 150, 162 , 57 S. L. ed. 458,
463, 33 Sup. Ct. Rep. 220.
And any enactment, from whatever source
originating, to which a state gives the force of law, is a statute of
the state, within the meaning of the pertinent clause of 709, Rev.
Stat., Judicial Code, 237; which confers jurisdiction on this court.
Williams v. Bruffy, 96 U.S. 176, 183 , 24 S. L. ed. 716, 717.
We must therefore treat the ordinances as
legislation enacted by virtue of the lawmaking power of the state. They
are manifestly an exertion of the police power, and the question is
whether, viewed in that light, they run counter to the 'contract' or
'due process' clauses. That a railroad charter may embody a contract,
within the meaning of the Constitution, hardly needs to be stated.
Dartmouth College v. Woodward, 4 Wheat. 518, 4 L. ed.
629. In the present case the supreme court of North Carolina held that
by the Constitution of the state, the charter was subject to alteration
or repeal at the legislative will. If the right of repeal was indeed
thus reserved, the result is obvious. Greenwood v. Union Freight R.
Co. 105 U.S. 13, 21 , 26 S. L. ed. 961, 965; Knoxville Water Co.
v. Knoxville, 189 U.S. 434, 437 , 47 S. L. ed. 887, 891, 23 Sup. Ct.
Rep. 531. But when this court has under review the judgment of a state
court by virtue of 709, Rev-Stat., U. S. Comp. Stat. 1901, p. 575, and
the validity of a state law is challenged on the ground that it impairs
the obligation of a contract, this court must determine for itself the
existence or nonexistence of the asserted contract, and whether its
obligation has been impaired. Douglas v. Kentucky, 168 U.S. 488,
502 , 42 S. L. ed. 553, 557, 18 Sup. Ct. Rep. 199; Stearns v.
Minnesota, 179 U.S. 223, 233 , 45 S. L. ed. 162, 170, 21 Sup. Ct.
Rep. 73. We are not referred to and are unable to find, in the state
Constitution as it existed when the charter now in question was granted,
any reservation of the right of repeal, and will assume for present
purposes that the contract was not thus qualified, and deal only with
the question whether it has been impaired.
Plaintiff in error lays more particular stress upon the insistence that
its property rights in the street will be infringed by the enforcement
of the ordinances. Because its predecessors acquired the strip of land
in fee simple, and because the municipal corporation has never condemned
it or made compensation for its use as a street, the contention is that
the title of the railroad company remains until now, absolute and
unqualified. Reference is made to Rev. Code (N. C.) chap. 65, 23. This
section, it seems, became law in North Carolina in the year 1854, and
has remained upon the statute books continuously until the present time,
appearing now as 388 of the Revisal of 1908; see also Code 1883, 150. It
provides that 'no railroad, plank road, turnpike, or canal company shall
be barred of, or presumed to have conveyed, any real estate, right of
way, easement, leasehold, or other interest in the soil which may have
been condemned, or otherwise obtained for its use, as a right of way,
depot, station house or place of landing, by any statute of limitation,
or by occupation of the same by any person whatever.' Two cases, Seaboard
Air Line R. Co. v. Olive, 142 N. C. 257, 271, 55 S. E. 263, and Muse
v. Seaboard Air Line R. Co., 149 N. C. 443, 446, 19 L.R.A.(N.S.)
453, 63 S. E. 102, are cited as supporting the proposition that under
this statute a permissive user of any portion of the railroad right of
way by others, or even by the public as a street, cannot impair the
title of the company unless at least there be adverse user or possession
for a sufficient period to satisfy the statutes on that subject; and it
is insisted there has been none. But in both cases the question was as
to the effect of the permissive user or possession upon merely private
rights, and in the Muse Case it was expressly conceded (149 N.
C. 446) that the rights of the railroad company in that portion of its
right of way that had been used as a street were subject to the police
power of the town. In the present case, likewise, the state court (155
N. C. 363) treated the question of the ownership of the soil as not
involved in the decision.
And we are not at present particularly concerned with either contract
or property rights, except as they may serve to show the conditions
under which the ordinances were adopted, and may bear upon the question
of the reasonableness of those regulations. These have to do with the
use and control of the property, rather than with its ownership; with
the mode in which the franchise shall be enjoyed, rather than with its
scope. Conceding, for argument's sake only, the
utmost that may be claimed as to the charter and property rights of
plaintiff in error, we still have yielded nothing that may defeat the
exercise of the police power by the state, or by its authorized agency.
Adopting the extreme assumption that the railroad company has still a
complete and unqualified ownership of every portion of the strip of land
that was originally acquired in fee simple, and as proprietor might
lawfully exercise its dominion by excluding the public from it; yet it
does not do this, but permits, and long has permitted, the public to use
material portions of the strip for ordinary street purposes; it
apparently excludes the public from no portion except as the existence
of the tracks and the passage of trains may have such a tendency or
effect. And thus the company, at least for the time, devotes its
property in part to public uses that are more or less inconsistent with
the railroad uses, and under conditions such as to render the railroad
operations necessarily a source of danger to the public while enjoying
the permitted use. Under such circumstances the state, in the exercise
of the police power, may legitimately extend the application of the
principle that underlies the maxim, Sic utere tuo ut alienum non loedas,
so far as may be requisite for the protection of the public.
For it is settled that neither the 'contract'
clause nor the 'due process' clause has the effect of overriding the
power of the state to establish all regulations that are reasonably
necessary to secure the health, safety, good order, comfort, or general
welfare of the community; that this power can neither be abdicated nor
bargained away, and is inalienable even by express grant; and that all
contract and property rights are held subject to its fair exercise.
Slaughter House Cases, 16 Wall. 36, 62, 21 L. ed. 394, 404; Munn
v. Illinois, 94 U.S. 113, 125 , 24 S. L. ed. 77, 84; Boston Beer
Co. v. Massachusetts, 97 U.S. 25, 33 , 24 S. L. ed. 989, 992; Mugler
v. Kansas, 123 U.S. 623, 665 , 31 S. L. ed. 205, 211, 8 Sup. Ct.
Rep. 273; Crowley v. Christensen, 137 U.S. 86, 89 , 34 S. L. ed.
620, 621, 11 Sup. Ct. Rep. 13; New York & N. E. R. Co. v.
Bristol, 151 U.S. 556, 567 , 38 S. L. ed. 269, 272, 14 Sup. Ct. Rep.
437; Texas & N. O. R. Co. v. Miller, 221 U.S. 408, 414 , 415
S., 55 L. ed. 789, 795, 796, 31 Sup. Ct. Rep. 534. And
the enforcement of uncompensated obedience to a regulation established
under this power for the public health or safety is not an
unconstitutional taking of property without compensation or without due
process of law. Chicago, B. & Q. R. Co. v. Chicago,
166 U.S. 226, 255 , 41 S. L. ed. 979, 991, 17 Sup. Ct. Rep. 581; New
Orleans Gaslight Co. v. Drainage Commission, 197 U.S. 453, 462 , 49
S. L. ed. 831, 835, 25 Sup. Ct. Rep. 471; Chicago, B. & Q. R.
Co. v. Illinois, 200 U.S. 561, 591 , 592 S., 50 L. ed. 596, 608,
609, 26 Sup. Ct. Rep. 341, 4 Ann. Cas. 1175
Of course, if it appear that the regulation under
criticism is not in any way designed to promote the health, comfort,
safety, or welfare of the community, or that the means employed have no
real and substantial relation to the avowed or ostensible purpose, or
that there is wanton or arbitrary interference with private rights, the
question arises whether the law-making body has exceeded the legitimate
bounds of the police power.
The ordinances now in question must be considered
in view not only of the charter and property rights of plaintiff in
error, but of the actual situation that has developed and now exists in
Goldsboro, with the consent and long acquiescence of plaintiff in error
and its predecessors in interest. A town of considerable size and
importance has grown up along the line of the railroad. The strip of
land 130 feet in width, so far as it is not occupied by the railroad
tracks, for many years has been and still is used for the ordinary
purposes of a street. The supreme court of North Carolina found, upon
adequate evidence, that it is the main business street of the town,
frequently crowded with pedestrians and vehicles; and that the operation
of trains along it, notwithstanding the utmost care of the railroad
company, tends to obstruct the crossings and is fraught with danger to
life and property. There are, within the blocks covered by the
ordinances, two main lines of railway besides that of plaintiff in
error. These, of course, complicate the situation by narrowing the
spaces available for ordinary travel north and south on East and West
Center streets, and must also enhance the dangers at the crossings.
It is very properly conceded that the company may be required to limit
the speed of its trains, and to have flag- men precede them to warn
persons of their approach; and that the company may be required to
change its grade at the street crossings. In New York & N. E. R.
Co. v. Bristol, 151 U.S. 556, 567 , 38 S. L. ed. 269, 272, 14 Sup.
Ct. Rep. 437, this court sustained a Connecticut statute directed to the
extinction of grade crossings as a menace to public safety, and
compelling this to be done at the expense of the companies, although the
grade crossings had been long before established under legislative
authority. In Chicago, B. & Q. R. Co. v. Chicago, 166 U.S.
226, 251 , 41 S. L. ed. 979, 989, 17 Sup. Ct. Rep. 581, it was held that
when the city opened a new street across the railroad it was not bound
to take and pay for the fee in the land, but only to make compensation
to the extent that the value of the company's right to use the land for
railroad purposes was diminished by opening the street across it; and
that the company was not entitled to have its compensation increased
because of the fact that in order to safeguard the crossing it would
thereafter be obliged to construct gates, and a tower for operating
them, plank the crossing, fill in between the rails, and incur certain
annual expenses for depreciation, maintenance, employment of gatemen,
etc. To the same effect are Wabash R. Co. v. Defiance, 167 U.S.
88, 97 , 42 S. L. ed. 87, 91, 17 Sup. Ct. Rep. 748; Chicago, B. &
Q. R. Co. v. Nebraska, 170 U.S. 57, 75 , 42 S. L. ed. 948, 954, 18
Sup. Ct. Rep. 513; Northern P. R. Co. v. Minnesota, 208 U.S.
583, 597 , 52 S. L. ed. 630, 636, 28 Sup. Ct. Rep. 341; Cincinnati,
I. & W. R. Co. v. Connersville, 218 U.S. 336, 343 , 54 S. L. ed.
1060, 1064, 31 Sup. Ct. Rep. 93, 20 Ann. Cas. 1206; Chicago, M. &
St. P. R. Co. v. Minneapolis, decided this day [ 232 U.S. 430 , 58
L. ed. --, 34 Sup. Ct. Rep. 400]. And see Grand Trunk Western R. Co.
v. South Bend, 227 U.S. 544, 554 , 57 S. L. ed. 633, 639, 44
L.R.A.(N.S.) 405, 33 Sup. Ct. Rep. 303.
But manifestly the tracks cannot be brought to the street grade at the
crossings without being lowered between the crossings as well. And if
this is to be done, it follows that not merely the tracks, but the
surface adjacent to the tracks, must be made to conform to the
established grade of East and West Center streets between the crossing
streets; or else the street will be rendered materially less convenient
for purposes of north- and-south travel, and the drainage will be
materially interfered with; or at least the municipal authorities might
reasonably so determine. The establishment of a proper system of
drainage for the city in the interest of the public health and general
welfare is an object that legitimately invokes the exercise of the
police power. New Orleans Gas Light Co. v. Drainage Commission,
197 U.S. 453, 460 , 49 S. L. ed. 831, 834, 25 Sup. Ct. Rep. 471.
As to filling in between the rails, elsewhere than at the crossing
streets, we have to do not merely with the necessities of drainage, but
with the safety of persons crossing the railroad tracks midway of the
respective street blocks. The power of the state to prescribe
precautions with respect to the running of railroad trains so as to
guard against injuries to the persons or property of others is not
confined to the establishment of such precautions at highway crossings.
State enactments requiring railroad corporations to maintain fences and
cattle guards alongside the railroad have been repeatedly sustained.
Missouri P. R. Co. v. Humes, 115 U.S. 512, 522 , 29 S. L. ed.
463, 466, 6 Sup. Ct. Rep. 110; Minneapolis & St. L. R. Co. v.
Beckwith, 129 U.S. 26, 34 , 32 S. L. ed. 585, 588, 9 Sup. Ct. Rep.
207; Minneapolis & St. L. R. Co. v. Emmons, 149 U.S. 364,
366 , 37 S. L. ed. 769, 771, 13 Sup. Ct. Rep. 870. For the purposes of
the argument it may be conceded that no person has the right, as against
the railroad company, to pass over its tracks except at one of the
street intersections; although this may not be entirely clear. But
unless excluding fences be established adjacent to the railroad tracks
(and this is not proposed nor even suggested as feasible), it is
inevitable that many people, with or without right (children of tender
years, among others ), will cross at places other than the street
intersections; and a police regulation intended to prevent injuries to
persons thus crossing cannot be judicially denounced as arbitrary. Other
grounds for sustaining 5 might be mentioned; but we need not further
particularize.
There remain only the limitation of car shifting and the prohibition of
the standing of cars upon East and West Center streets in the four
blocks that lie between Spruce and Ash streets, in the heart of the
city. As already pointed out, the state court construed 'shifting' as
applying only to the 'cutting out and putting in' of cars in the making
up of trains. This operation is not to be performed within the four
blocks specified except during two hours in the morning and two hours in
the afternoon of each day. The time limits were evidently adopted with
regard to the necessities of the industries that are located along the
railroad, and at the same time with a view to the necessities of general
travel upon the streets. It was complained that the time allowed for
shifting is inadequate; but there is nothing in the proof on this
subject to overthrow the finding of the court that the ordinance is a
reasonable exercise of the police power.
The prohibition against the standing of cars for a longer period than
five minutes within the same four blocks is intended to prevent the
loading and unloading of cars in the street, with the attendant use of
wagons and drays for the purpose. In view of the obstruction to street
travel that is naturally incident to such operations, the prohibition
cannot be deemed wholly unreasonable. In effect it prevents ordinary
travel upon the street from being thus obstructed, and requires that the
loading and unloading of cars shall be done at the regular freight
terminals.
The regulations in question are thus found to be
fairly designed to promote the public health, safety, and welfare; the
measures adopted appear to be reasonably suited to the purposes they are
intended to accomplish; and we are unable to say that there is any
unnecessary interference with the operations of the railroad, or with
the property rights of plaintiff in error. Therefore, no violation of
the 'contract' or 'due process' clauses is shown.
Judgment affirmed. | |