Illinois Cent. R. Co. v. Copiah County

• Decision Date: 23 February 1903
• Citation: 33 So. 502,81 Miss. 685
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY v. COPIAH COUNTY

33 So. 502

81 Miss. 685

ILLINOIS CENTRAL RAILROAD COMPANY v. COPIAH COUNTY

Supreme Court of Mississippi

February 23, 1903

FROM the circuit court of Copiah county. HON. ROBERT POWELL Judge.

Copiah county, appellee, was plaintiff in the court below; the railroad company, appellant, the lessee of the New Orleans Jackson & Great Northern Railroad Company, was defendant there. From a judgment in plaintiff's favor, defendant appealed to the supreme court.

The board of supervisors of Copiah county passed an order in the following words: "Ordered by the board that the Illinois Central Railroad Company proceed at once to build a bridge over its track about one mile north of Crystal Springs for the benefit of the traveling public on Frink McPherson Road No. 126, leading from Road No. 1 to Hennington Camp Ground."

The suit was predicated of § 3555 of the code of 1892, which section is an follows:

3555 (1053). Highway crossings and bridges.--Where a railroad is constructed so as to cross a highway, and it be necessary to raise or lower the highway, it shall be the duty of the railroad company to make proper and easy grades in the highway, so that the railroad may be conveniently crossed and to keep such crossing in good order; and it shall be the duty of the company to erect and keep in order all bridges on any highway, at such points as bridges may be necessary to cross the railroad; and any company which shall fail to comply with these provisions shall forfeit the sum of one hundred dollars, to be recovered by action in the name of the county in which the crossing or bridge is situated."

The action was a demand for $ 100, because of the failure by the railroad company to comply with the order of the board of supervisors and the statute. The facts were agreed upon, and the statement thereof is contained in the opinion of the court.

Affirmed.

Mayes &amp Harris, for appellant.

Is a railroad company which has been located and constructed for years required by § 3555 of the code to erect a bridge in a case where a new highway, laid out and established long after the railroad itself has been established and put in operation, across the railroad at a point where there is a cut, so that a bridge across the railway track and bed is necessary to maintain the continuity of the highway? We maintain that such is not the law. We do not care to deny the proposition that the obligation laid upon a railroad to keep in order highways which it intersects, where that liability once attaches, is a continuing liability. Neither do we care to controvert or discuss the proposition that where a new highway crosses an established railway on the same grade it is a legitimate exercise of the police power of the state to require the railway to plank its approaches and tracks, and keep the highway at its point of intersection with the railroad bed in good order, so that parties using the common point in their wheeled vehicles may quickly go across the railroad, or being once on it may quickly and easily get off of it. Such authority of the legislature has been upheld in some states as a legitimate exercise of the police power, looking to the safety of the traveling public, who are traveling under such conditions as must necessarily lead them to cross the railway track.

It is true that a number of states hold that even this cannot be required of a railway once established, where the highway is laid off across the railway is of a later date, without previous compensation paid to the railroad company for the additional burden laid upon it in the use of its track. But this question does not control the case at bar. We come to the specific case. Here is an instance where a new road is laid out, and the board of supervisors in laying it out make their election to cross the railroad, not on grade, but to run the new road along the top of a ridge and cross the railroad at a place where there is a cut, so that the erection and maintenance of an expensive and more or less dangerous bridge is required, Under these conditions the railroad company cannot be required to erect the bridge or to maintain the same. This statute is penal, and it must be narrowly construed. Mr. Sexton, in his brief, admits that the first portion of the statute applies in cases where the highway is already established, but he contends that the special clause now under consideration applies to a highway, whether established before or after the railroad is built. We say not. Analyzing the statute itself, we see no reason to suppose that the intention of the legislature was to establish two different rules.

On this general subject, we cite the following authorities: Township v. Railroad Co., 43 Kan. 543; Commissioners v. Railroad Co., 46 Kan. 104; Canal Co. v. State, 4 Zabriskie, 62; Railroad Co. v. County, 14 Gray (Mass.), 155; Railroad Co. v. Railroad Co., 121 Mass. 124; Railroad Co. v. Bloomington, 76 Ill. 447; Railroad Co. v. Baltimore, 46 Md. 425, The City v. Railway Co., 102 Mo. 633; Grand Rapids v Railroad Co., 58 Mich. 641, 648; Railway Co. v. Hough, 61 Mich. 507; Traction Co. v. Railway Co., 119 Ala. 129.

Again, if this statute should be held to mean what the county contends that it does not mean, so that it is made applicable to a case like this, it is, we submit, unconstitutional, because it is a deprivation of the railroad property without due process of law.

The charter of the New Orleans, Jackson & Great Northern Railroad Company, under which appellant operates the road, sec. 11, provides as follows:

"Sec. 11. Be it further enacted, that whenever in the construction of said road it shall be necessary to cross or intersect any established road or way, it shall be the duty of the president and directors of said company so to construct said road as not to impede the passage of persons or property along the said highway," etc., etc.

So it will be seen that by the express provision of the charter the obligation of the company in this particular is provided for, and it is limited to crossing highways by the railroad in the course of its construction. (See Laws 1850, p. 74; also Laws 1878, p. 223, also Laws 1882, p. 1023.) Of this charter the court will take judicial notice.

Therefore, the imposition by this statute of the obligation to erect a bridge, under the condition existing in this case, would be a violation of the rights of the company, and would violate the clause of the constitution of the United States which forbids the impairment of the obligation of a contract by subsequent legislation; and also a violation of the fourteenth amendment, since it would be a deprivation of property without due process of law. Detroit v. Railway Co., 43 Mich. 140; Railway Co. v. Me. 96 U.S. 499; Sinking Fund Cases, 99 U.S. 700.

J. S. Sexton, for appellee.

By reference to the code of 1892, § 3555, it will be seen that there are two duties imposed thereby upon the railroads traversing the state of Mississippi. The first duty is found in the first paragraph of the section which provides that "where a railroad is constructed so as to cross a highway (probably meaning a previously constructed highway) and it be necessary to raise or lower the highway, it shall be the duty of the railroad company to make proper and easy grades in the highway, so that the railroad may be conveniently crossed and keep such crossing in good order."

The next duty imposed is found in the second paragraph of the section in these words "and it shall be the duty of the company to erect and keep in order all bridges on any highway, at such points as bridges may be necessary to cross the railroad."

It will be seen by reference to the statute that there is no distinction made in the duty of the railroad company to erect and keep in order bridges at such points as may be necessary, whether these bridges are required to be erected on highways built anterior or subsequent to the construction of the railroad. It is the necessity for the bridge and not the age of the highway which determines the duty of the railroad. The idea underlying the statute is that the railroads traversing the state have the right of eminent domain and may cross any highway already in existence or may run where highways will become a necessity, and they have the facilities and the ability to construct bridges, and that it is not unreasonable to impose upon them the burden of erecting bridges which, but for the construction of their roads would not be rendered necessary.

The first paragraph perhaps only contemplates the crossing of a previously constructed highway, and in such case, if it is necessary to raise or lower the highway, this must be done by the railroad company. If there is an omission in the statute to require the railroad companies to raise and...