Erie Co v. Board of Public Utility Com Rs Passaic Water Co v. Same Western Union Telegraph Co v. Same Fullerton Co v. Same Morris Co v. Same Meyer v. Same Public Service Ry Co v. Same
| Decision Date | 03 January 1921 |
| Docket Number | No. 38,No. 36,No. 37,No. 40,Nos. 33 and 34,No. 35,No. 39,s. 33 and 34,35,36,37,38,39,40 |
| Parties | ERIE R. CO. v. BOARD OF PUBLIC UTILITY COM'RS et al. PASSAIC WATER CO. v. SAME. WESTERN UNION TELEGRAPH CO. v. SAME. D. FULLERTON & CO. v. SAME. MORRIS & CO. v. SAME. MEYER et al. v. SAME. PUBLIC SERVICE RY. CO. v. SAME |
| Court | U.S. Supreme Court |
[Syllabus from pages 394-396 intentionally omitted] Messrs. Geo. S. Hobart, of Newark, N. J., Gilbert Collins, of Jersey City, N. J., and Charles E. Hughes, of New York City, for plaintiffs in error in Nos. 33-39.
[Argument of Counsel from pages 396-407 intentionally omitted]
Mr. Frank Bergen, of Newark, N. J., for plaintiff in error in No. 40.
Messrs. L. Edward Hermann, of Jersey City, N. J., Frank H. Sommer, of Newark, N. J., and William I. Lewis, of Paterson, N. J., for defendant in error.
These are writs of error brought by parties interested in an order of the Board of Public Utility Commissioners of New Jersey, dated April 20, 1915, directing a change in fifteen places in the City of Paterson, where the Erie Railroad now crosses that number of streets at grade. The order was reviewed on writs of certiorari and affirmed by the Supreme Court, and on appeal by the Court of Errors and Appeals. 89 N. J. Law, 57, 24, 98 Atl. 13, 28; 90 N. J. Law, 672, 673, 714, 729, 677, 694, 103 Atl. 1052, 1053, 1055, 1051. The Erie Railroad Company made two applications to the Supreme Court, the second being based upon a refusal by the Board to grant a rehearing of its order. Accordingly it has two writs of error here.
But the second adds nothing to the first as we could not say that the Board unreasonably refused further delay. Those of the other parties are to the judgments affirming the original order of the Board. The Erie Railroad was ordered to make the change by carrying fourteen of the crossings under, and one, at Madison Avenue, over the railroad. It will also have to bear the cost, subject to a charge to the Public Service Railway Company of ten per centum of the cost of changing three crossings used by its road. The most important questions arise in the Erie Railroad Company's case and we take that up first.
The order was made under an Act of March 12, 1913, c. 57, P. L. 1913, p. 91, which is construed by the State courts to authorize it, subject to the constitutional questions to be dealt with here. The Erie Railroad's line in Paterson is over tracks originally belonging to the President and Directors of the Paterson and Hudson River Railroad Company and the Paterson and Ramapo Railroad Company, but now held by the Erie Railroad, by assignment of perpetual leases upon the terms that if in any unforeseen way the leases terminate the value of erections and improvements must be repaid by the lessors. They however are small corporations having no assets except their roads and the rentals received from the Erie Company. The leases were ratified by an Act of March 14, 1853 (P. L. 480), providing that they should not be held to confer any privilege or right not granted to the lessors by their charters. It is admitted that the statute must be taken to impose the duty of making the changes upon the company operating the road, the plaintiff in error, which is an interstate road. It put in evidence that it did not have assets sufficient to make the changes, at least without interfering with the proper development of its interstate commerce, and also contended that the whole evidence did not justify the finding of the Board that the crossings were dangerous to public safety but at most showed that
the change would be a public convenience. It is said that the order must be reasonable to be upheld and that it is not reasonable to require an expenditure for such a purpose of over two million dollars from a company that has not more than $100,000 available, and that the order and the statute when construed to justify it not only interfere unwarrantably with interstate commerce and impair the obligation of contracts but take the Erie Company's property without due process of law.
Most of the streets concerned were laid out later than the railroads and this fact is relied upon, so far as it goes, as an additional reason for denying the power of the State to throw the burden of this improvement upon the railroad. That is the fundamental question in the case. It might seem to be answered by the summary of the decisions given in Chicago, Milwaukee & St. Paul Ry. Co. v. Minneapolis, 232 U. S. 430, 438, 34 Sup. Ct. 400, 401 (58 L. Ed. 671). 'It is well settled that railroad corporations may be required, at their own expense, not only to abolish existing grade crossings but also to build and maintain suitable bridges or viaducts to carry highways, newly laid out, over their tracks or to carry their tracks over such highways.' Missouri Pacific Ry. Co. v. Omaha, 235 U. S. 121, 35 Sup. Ct. 82, 59 L. Ed. 157; Northern Pacific Ry. Co. v. Puget Sound & Willapa Harbor Ry. Co., 250 U. S. 332, 39 Sup. Ct. 474, 63 L. Ed. 1013. For although the statement is said to be explained as a matter of state law by the previous decisions in Minnesota, it is made without reference to those decisions or to any local rule, and moreover the intimation of the judgment in the present case is that whatever may have been the eariler rulings the law of New Jersey now adopts the same view.
But it is argued that the order is unreasonable in the circumstances to which we have adverted, the principle applied to the regulation of public service corporations being invoked. Mississippi R. R. Commission v. Mobile & Ohio R. R. Co., 244 U. S. 388, 391, 37 Sup. Ct. 602, 61 L. Ed. 1216; Chicago,
Burlington & Quincy R. R. Co. v. Railroad Commissioners of Wisconsin, 237 U. S. 220, 35 Sup. Ct. 560, 59 L. Ed. 926. But the extent of the States' power varies in different cases from absolute to qualified, somewhat as the privilege in respect of inflicting pecuniary damage varies. The power of the State over grade crossings derives little light from cases on the power to regulate trains.
Grade crossings call for a necessary adjustment of two conflicting interests—that of the public using the streets and that of the railroads and the public using them. Generically the streets represent the more important interest of the two. There can be no doubt that they did when these railroads were laid out, or that the advent of automobiles has given them an additional claim to consideration. They always are the necessity of the whole public, which the railroads, vital as they are, hardly can be called to the same extent. Being places to which the public is invited and that it necessarily frequents, the State, in the care of which this interest is and from which, ultimately, the railroads derive their right to occupy the land, has a constitutional right to insist that they shall not be made dangerous to the public, whatever may be the cost to the parties introducing the danger. That is one of the most obvious cases of the police power, or to put the same proposition in another form, the authority of the railroads to project their moving masses across thoroughfares must be taken to be subject to the implied limitation that it may be cut down whenever and so far as the safety of the public requires. It is said that if the same requirement were made for the other grade crossings of the road it would soon be bankrupt. That the States might be so foolish as to kill a goose that lays golden eggs for them, has no bearing on their constitutional rights. If it reasonably can be said that safety requires the change it is for them to say whether they will insist upon it, and neither prospective bankruptcy
nor engagement in interstate commerce can take away this fundamental right of the sovereign of the soil. Denver & Rio Grande R. R. Co. v. Denver, 250 U. S. 241, 246, 39 Sup. Ct. 450, 63 L. Ed. 958. To engage in interstate commerce the railroad must get on...
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