Chi., M. & St. P. Ry. Co. v. City of Milwaukee

• Decision Date: 16 November 1897
• Citation: 97 Wis. 418,72 N.W. 1118
• Court: Wisconsin Supreme Court
• Parties: CHICAGO, M. & ST. P. RY. CO. v. CITY OF MILWAUKEE.

97 Wis. 418

72 N.W. 1118

CHICAGO, M. & ST. P. RY. CO.

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

Nov. 16, 1897.

Syllabus by Marshall, J.

1. Corporations are subject to such reasonable police regulations as the legislature may see fit, from time to time, to adopt to promote public health, morals and safety; also to the reserved power under the constitution to alter or amend corporate charters.

2. Compliance with valid police regulations and changes in corporate charters are not subjects for compensation. They are not violations of the inhibitions of the constitution upon the impairment of the obligations of contracts, or the deprivation of property without due process of law, or of the equal protection of the laws.

3. Legislative authority, under the police power of the state, extends to all matters necessary to a safe crossing of a railway track by a highway, and without regard to whether exercised before or after the construction of the railroad, or before or after the construction of the highway, or whether the highway existed at the time of the construction of the railroad, or was thereafter constructed across it.

4. The requirement for the construction and maintenance of cattle guards, warning posts, crossing signs, crossing gates, and the planking of tracks are equally proper subjects for police regulations when the legislature shall see fit to exercise its authority in that regard.

5. The statute of this state (section 1836, Rev. St.), in regard to the restoration of highways crossed by railroads, does not apply to a highway constructed after the construction of the railroad which it crosses.

6. Section 1809, Rev. St., in regard to crossing signs, and section 1810, Rev. St., in regard to the construction and maintenance of cattle guards, apply to all railroads without respect to when constructed.

7. Where a new highway is laid out and opened across a railway track, the railway company is entitled to compensation for the diminished value of its easement in the land, on account of the establishment of the new way, and the cost of making and maintaining such structural changes in its road bed and track as become necessary in order to protect and preserve its track for the old use, notwithstanding the new use, except, however, such changes as are required by law under the police power of the state or the constitutional reservation of power to alter or amend corporate charters.

8. Such structural changes include planking of the track and maintaining the same, but do not include the removal of the planking from time to time to enable the railway company to do the necessary tamping and to remove snow and ice from between the rails, the latter being mere operating expenses and too conjectural to form any basis for compensation. They do not include crossing gates; they are not structural changes in the track, and are not a necessary part of crossing construction.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

In the matter of the extension of a public street in the city of Milwaukee, the Chicago, Milwaukee & St. Paul Railway Company appealed from the assessment of damages to the circuit court, and from the judgment therein rendered appeals. Reversed.

The city of Milwaukee, for the purpose of extending a public street across the defendant's railway track and right of way, commenced proceedings to lay out and establish such street and to have the compensation to which plaintiff was entitled by reason thereof determined. Such proceedings were had that plaintiff's damages were assessed at $150, from which plaintiff appealed to the circuit court. The action was there tried on appeal and resulted in a special verdict as follows:

(1) The fair value, November 14, 1892, of so much of plaintiff's right of way as was taken by the defendant, subject to its use for railway purposes, independent of the item of damages hereinafter found, is $1.

(2) The reasonable and probable expense of planking the crossing is $16.80.

(3) The sum of money sufficient to compensate the railway company for the expense of perpetually maintaining the planking is $70.

(4) It will probably cost the company for labor in removing and relaying the planking, to enable the company to do the necessary tamping, and to remove the snow and ice from between the rails and the planking, $10 per year.

(5) The sum of money necessary to compensate the company for such annual expense is $166.67.

(6) The reasonable and probable expense of the warning post and crossing sign was $7.

(7) The sum sufficient to compensate the company for perpetually maintaining the warning post and sign is $19.45.

(8) The reasonable and probable expense of constructing two cattle guards at the crossing is $30.

(9) The sum of money sufficient to compensate the company for perpetually maintaining the cattle guards is $50.

(10) The reasonable and probable expense of erecting gates at the crossing will be $400.

(11) The sum of money sufficient to compensate the company for the expense of perpetually maintaining such gates is $666.67.

(12) It will probably cost the company annually, to operate the gates, $1,000.

(13) The sum of money reasonably necessary to compensate the company for the expense of perpetually operating the gates is $16,666.67.

Upon the coming in of the special verdict, plaintiff's attorney moved the court thereon for judgment for a sum sufficient to cover all the items of damages mentioned. Defendant also moved the court on the special verdict for a judgment in plaintiff's favor for one dollar, being the damages found in answer to the first question. Defendant's motion was denied. Plaintiff's motion was granted as to the damages found by the 1st, 2d, 3d, 4th, 5th and 6th findings, amounting to $271.47, and was denied as to the other findings. Both parties appealed.

C. H. Van Alstine, for appellant.

Howard Van Wyck and C. H. Hamilton, for respondent.

MARSHALL, J. (after stating the facts).

There is so much conflict in judicial authorities and the works of text writers, respecting the subject here presented, that we must depend more on fundamental principles than on adjudications of the precise questions involved, in order to reach a satisfactory conclusion. We are aided but little by previous decisions of this court, except as to the principles upon which this decision must rest, as the subject does not appear to have been heretofore presented very fully here. In Blair v. Railway Co., 20 Wis. 262, the subject was somewhat involved, but not as relates to crossings of railroads by highways.

It may be laid down as established beyond reasonable controversy that railroad corporations are subject to all such reasonable regulations as may from time to time be prescribed by legislative authority, pursuant to the police power incident to the sovereignty of the state, and are also subject to the power reserved under the constitution, to alter or amend corporate charters. The charter of a corporation in no sense exempts it from police supervision and regulation. Such an exemption could never be implied from a mere grant of power, and would not be valid if expressly conferred. It is frequently and rightly said that sovereign authority cannot devest itself of its ordinary police power over persons, whether natural or artificial, any more than it can of the power to make laws or to punish crime. To accurately define such power is not entirely free from difficulty, and it is not necessary for the purposes of this case. It is sufficient to state some general principles, well established, within which all questions here involved plainly fall.

In Beer Co. v. Massachusetts, 97 U. S. 25, Mr. Justice Bradley said, in effect, that “the police power at least extends to the protection of the lives, health and property of citizens, and the promotion of good order and good morals.” In our judgment that is broad enough to cover the whole ground of police jurisdiction. When we say that, under it, the legislative branch of the government may constitutionally enact all reasonable regulations to promote the health, comfort, morals and peace of society, and the safety of the individual members thereof, there is little more that can be said on the subject. When an enactment goes, clearly, beyond that, judicially considered, it meets the bar of the constitution at some point, and is therefore void. The doctrine once advanced and contended for, that a grant of corporate rights may carry with it an exemption from police supervision, and an exercise of such supervision constitutes an impairment of the contract between the state and the corporation, was long ago set at rest. In a leading case on the subject, Thorpe v. Railroad Co., 27 Vt. 140, Redfield, C. J., said, in effect, that while the state cannot, by police regulations, destroy or essentially modify corporate franchises, it may regulate their mode of doing business to protect the public, the same in all respects as it can natural persons, and nothing in the corporate grants can or does restrict or take away such power. This court in Attorney General v. Chicago & N. W. Ry. Co., 35 Wis. 425, while approving the doctrine thus announced by Judge Redfield, so far as relates to the exercise of mere police power, and generally,as an original proposition, in deference to the established doctrine of the federal court, “by whom all are bound,” criticised it so far as it goes beyond mere police power and impairs the contract relations between the state and the corporation, where there is no reserve power to alter or amend corporate charters. But the criticism does not apply here, even if the doctrine of Judge Redfield's decision goes beyond the proper regulation of corporations under the police power, because power to alter or amend all corporate charters granted since the adoption of our state constitution, was reserved by it. The rule stated by Judge Cooley, as to the true limitation of the police power as relates to...