Chicago Alton Railroad Company v. Henry Tranbarger

• Decision Date: 01 June 1915
• Docket Number: No. 214,214
• Citation: 238 U.S. 67,35 S.Ct. 678,59 L.Ed. 204
• Parties: CHICAGO & ALTON RAILROAD COMPANY, Plff. in Err., v. HENRY A. TRANBARGER
• Court: U.S. Supreme Court

238 U.S. 67

35 S.Ct. 678

59 L.Ed. 204

CHICAGO & ALTON RAILROAD COMPANY, Plff. in Err.,

v HENRY A. TRANBARGER.

No. 214.

Argued March 19, 1915.

Decided June 1, 1915.

[Argument of Counsel from pages 67-69 intentionally omitted] Messrs. Elliott H. Jones, William C. Scarritt, and Charles M. Miller for plaintiff in error.

Messrs. Charles M. Hay, Thomas T. Fauntleroy, and Patrick H. Cullen for defendant in error.

Mr. Justice Pitney delivered the opinion of the court:

Tranbarger, owner of 60 acres of farming land in Callaway county, Missouri, brought this action against the railroad company in a Missouri state court to recover damages and a penalty under § 1110 of the Missouri Revised Statutes of 1899, as amended by act of March 14, 1907, Sess. Acts, p. 169, of which the portion now pertinent is as follows:

'It shall be the duty of every corporation, company or person owning or operating any railroad or branch thereof in this state, and of any corporation, company or person constructing any railroad in this state, within three months after the completion of the same through any county in this state, to cause to be constructed and maintained suitable openings across and through the right of way and roadbed of such railroad, and suitable ditches and drains along each side of the roadbed of such railroad, to connect with ditches, drains, or water courses, so as to afford sufficient outlet to drain and carry off the water, including surface water, along such railroad whenever the draining of such water has been obstructed or rendered necessary by the construction of such railroad; . . . and any corporation, company or person failing to comply with the provisions of this section shall incur a penalty not to exceed $500, and be liable for all damages done by said neglect of duty.'

A judgment for damages and a penalty of $100 was sustained by the supreme court of the state (250 Mo. 46, 156 S. W. 694), and the case comes here upon questions respecting the validity of the statute, as construed and applied, in view of familiar provisions of the Federal Constitution.

The facts found by the Missouri supreme court to be within the pleadings and proofs, and to be sustained by the verdict of the jury, are these: Plaintiff's lands lie in what are known as the Missouri river bottoms. It is the habit of that river to overflow the bottoms from the west to the east in times of high water. Defendant's railroad extends across the bottoms from southwest to northeast, and along the easterly boundary of plaintiff's land. The roadbed is constructed of a solid earth embankment, varying in height from 4 to 7 feet, and is not provided with transverse culverts, openings, or drains of any kind for the escape of surface water, but constitutes a solid barrier for collecting such waters, and causes them to back over and flood plaintiff's lands, which would not be overflowed except for that obstruction. The road was maintained in this condition for more than three months before a stated day in June, 1908, when the river overflowed its banks and the water ran across the bottoms until it reached the railroad embankment, which repelled it, so that it backed over, upon, and flooded plaintiff's land, causing substantial damage, which was attributable solely to the negligent failure of defendant to construct suitable openings across and through the solid embankment upon which its railroad tracks were laid, and suitable ditches and drains along the side of the roadbed, to connect with an existing ditch which would have afforded an outlet into the river or elsewhere without flooding plaintiff's land. It further appears from undisputed evidence cited in the brief of plaintiff in error that the railroad was constructed about the year 1872, and originally was carried by a trestle for a distance of 20 to 25 feet over a certain low spot in the river bottom, but that this opening was filled in about the year 1895, since which time the railroad bed has been maintained as a solid embankment across the bottom.

The statutory requirement of 'openings across and through the right of way and roadbed' originated in the 1907 amendment of § 1110. Before that, and dating from the year 1874, the statute merely required railroads to construct ditches along each side of the roadbed. Laws 1874, p. 121; Rev. Stat. 1879, § 810; Laws 1883, p. 50; Rev. Stat. 1889, § 2614; Laws 1891, p. 82; Rev. Stat. 1899, § 1110; Collier v. Chicago & A. R. Co. (1892) 48 Mo. App. 398, 402; Kenney v. Kansas City, P. & G. R. Co. (1897) 69 Mo. App. 569, 571. It is upon the clause added in 1907 that the present action is founded, and upon that clause the questions before us are raised. It is attacked as an ex post facto law, as a law impairing the obligation of the contract between the state and the railroad company and as repugnant to the 'due process' and 'equal protection' provisions of the 14th Amendment.

(1) The argument that in respect of its penalty feature the statute is invalid as an ex post facto law is sufficiently answered by pointing out that plaintiff in error is subjected to a penalty not because of the manner in which it originally constructed its railroad embankment, nor for anything else done or omitted before the passage of the act of 1907, but because after that time it maintained the embankment in a manner prohibited by that act. The argument to the contrary is based upon a reading of the section that applies the limiting clause 'within three months after the completion of the same' to railroads already in existence as well as to those to be constructed thereafter. The result is, according to the argument, that as the road of plaintiff in error was constructed upon a solid embankment at least as early as the year 1895, the act was violated as soon as enacted. This construction is so unreasonable that we should not adopt it unless required to do so by a decision of the state court of last resort. The language of the section as it now stands: 'It shall be the duty of every corporation . . . owning or operating any railroad or branch thereof in this state, and of any corporation . . . constructing any railroad in this state, within three months after the completion of the same through any county in this state, to cause to be constructed and maintained suitable openings,' etc., seems to us to be more reasonably construed as prescribing the express limit of three months only with respect to railroads afterwards constructed, and as allowing to railroads already in existence a reasonable time after the passage of the enactment within which to construct the openings. In adopting this meaning, we have regard not merely to the phrases employed, but to the previous course of legislation, which is set forth in the briefs, but need not be here repeated. Whether we are right or wrong about this, the duty to construct transverse outlets having originated with the act of 1907, the statute is of course to be construed as allowing some time—either three months, or a reasonable time more or less than that period—for their construction by railroads already in existence. The law had been upon the statute books for more than a year before the flood that gave rise to this action. Whether three months or a year was a reasonable time, or whether more time would reasonably be required for the construction of the prescribed opening across the railroad of plaintiff in error at the place in question, is a matter that we need not determine, since no such issue was raised in the state courts, plaintiff in error having contented itself with asserting that the legislature had no power to require it at any time after the act of 1907 to construct such an opening.

(2) Upon the question of impairment of contract, it appears that the railroad in question was constructed and afterwards leased to plaintiff in error in perpetuity by virtue of a charter and franchise granted to the Louisiana & Missouri River Railroad Company in the year 1870 (Laws, p. 93, §§ 22, 23, 43), by § 33 of which the company was exempted from the provisions of § 7 of article I. of the general corporation act of 1855 (Rev. Stat. 1855, p. 371), and thereby, it is claimed, relieved from the legislative power of alteration, suspension, and repeal. And while by the Constitution of 1865 (in force at the time the railroad in question was authorized and constructed), railroad corporations could be formed only under general laws subject...