McInnis v. New Orleans & N.E.R. Co.

• Decision Date: 31 May 1915
• Docket Number: 16687
• Citation: 109 Miss. 482,68 So. 481
• Parties: MCINNIS ET AL. v. NEW ORLEANS & N.E. R. CO
• Court: Mississippi Supreme Court

68 So. 481

109 Miss. 482

MCINNIS ET AL. v. NEW ORLEANS & N.E. R. CO

No. 16687

Supreme Court of Mississippi

May 31, 1915

APPEAL from the circuit court of Forest county. HON. P. B. JOHNSON Judge.

Suit by A. K. McInnis and another against the New Orleans & North Eastern Railroad Company. From a judgment for defendant plaintiff appeals.

Chapter 88, Laws 1908, is as follows: That upon application to it for that purpose the railroad commission may order side tracks spur tracks, loop or switch tracks to be constructed by railroad companies so as to connect their main line with manufacturing or other industrial plants, if they can be constructed without causing undue hazard to the property or trains of the railroad company; but all expenses for the right of way, grading, crossties, rails, spikes, fastenings and switches required shall be defrayed, unless otherwise agreed on, by the person, company, or corporation applying for their construction.

If the applicant shall comply with such rules and regulations as are uniformly in force by the railroad company for the safe operation of similar tracks, spur tracks, loop or switch tracks situated on its lines, they shall not, after having been constructed, be removed, abandoned, or destroyed without the consent of the commission, given after ten days' notice of the application to it for such consent to the party or parties or their assigns upon whose application they were required to be constructed.

Affirmed.

Currie & Currie, for appellant.

We contend that chapter 88 of the Acts of 1908, is based upon the police power of the state to control and regulate the operations of railroads in the state, and that it is a reasonable exercise of that power, and is not violative of the fourteenth amendment to the Constitution.

Mr. Sedgwick, in his work on constitutional law says that: "The clause prohibiting the taking of private property without compensation is not intended as a limitation of the exercise of those police powers which are necessary to the tranquility of every well ordered community, nor of that general power over private property which is necessary for the orderly existence of all orderly governments. It has always been held that the legislature may make police regulations, although they may interfere with the full enjoyment of private property and though no compensation is given." Sedgwick's Statutes and Constitutional Law, 435.

A recent writer on the limitations of police powers says that: "Where the letter of the Constitution would prohibit police regulations, which by all the principles of Constitutional government have been recognized as beneficent and permissible restrictions upon the individual liberty of action, such regulations will be upheld by the courts on the ground that the framers of the Constitution could not possibly have intended to deprive the government of so salutary a power, hence the spirit of the Constitution permits such legislation, although a strict construction of the letter prohibits." Tiedeman, Police Powers, 12.

Judge DILLON, in his work on Municipal Corporations, volume 1, page 212, says that: "Every citizen holds his property subject to the proper exercise of this (police) power, either by the state legislature directly, or by public or municipal corporations to which the legislature may delegate it.--It is well settled that laws and regulations of this character, though they may disturb the enjoyment of individual rights are not unconstitutional, though no provision is made for compensation for such disturbances. . . . If one suffers injury, it is either damnum absque injuria, or, in the theory of the law he is compensated for it by sharing in the general benefits which the regulations are intended and calculated to secure."

Compensation has never been a condition of its exercise, even, when attended with inconvenience or pecuniary loss, as each member of a community is presumed to be benefited by that which promotes the general welfare. All authorities agree that the Constitution presupposes the existence of the police power, and is to be construed with reference to that fact. 2 Hare, Am. Const. Law., 776; Anderson's Law Dic., Title, Police.

The courts have been equally emphatic in their declarations upon this subject. In Thorpe v. Rutland & Bur. R. R. Co., 27 Vt. 140, the court said: "There is also the general police power of the state, by which persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health and prosperity, of the perfect right in the legislature to do which no question ever was, or, upon acknowledged general principles, ever can be, made."

In the case of People v. Gillson, 109, N.Y. 389-398, the court said: "All property is held subject to the general police power of the state to so regulate and control its use in a proper case as to secure the general safety and the public welfare." Village of Carthage v. Carlos L. Frederick, N.Y. Ct. App. (2 Div.), 10 L. R. A. 178; 122 N.Y. 268, 25 N.E. 480.

The fourteenth amendment does not limit the subjects with reference to which the police power may be exercised. Minneapolis and St. Louis R. R. Co. v. Beckwith, 129 U.S. 29, 9 S.Ct. 207, 33 L.Ed. 585; Cantini v. Tillman, 54 F. 969.

If the act, and the Constitution can be construed together so as to let both stand, and each can be given a proper and legitimate purpose, it is the duty of the court to adopt that construction. People v. Rosenberg, 138 N.Y. 415.

In the lower court counsel for the demurrant urged with great zeal and with telling effect the point that the act is unconstitutional because it provides no compensation for a railroad required to use its money in constructing such tracks. If we are correct in our contention that the act is a police regulation, and it undoubtly is, the authorities cited settle the point against the demurrer. "Due compensation" "Full compensation" nor indeed any compensation has ever been recognized by textbook writers nor the courts to be a condition either precedent or subsequent to the exercise of this power.

R. H. & J. H. Tompson, for appellee.

The application of the Southern Cement etc. Company to the railroad commission was based upon the statute. Laws Mississippi 1908, chapter 88, page 72, and there can be no merit in this appeal, even were the declaration well drawn, if the statute be invalid, since plaintiff's case is wholly dependent upon it.

We submit, and such was the judgment of the trial court, that the statute is absolutely and utterly void, because violative of the fourteenth amendment of the Constitution of the United States, providing that no state shall deprive any person of property without process of law, and, as well, of section 14 of the Constitution of Mississippi, 1890, providing that no person shall be deprived of property without due process of law.

An examination of the statute shows, that it undertakes by its first section to empower the commission, if the applicant for an order thereunder provides the right of way, grading, crossties, rails, spikes, fastenings and ditches required, to order the railroad company, at its own expense, to construct side tracks, spur tracks, etc., "so as to connect their main lines with manufacturing or other industrial plants," and by its second section to prohibit the removal, abandonment or destruction of such tracks without the consent of the commission.

It will be observed: First, that there is no limit to the length of the spur tracks mentioned in the statute and consequently no limit to the cost of their construction, and there is nothing in the declaration or in the order of the commission exhibited with the pleading or elsewhere in the record showing the distance of the plaintiff's gravel pit from the defendant's railroad tracks. Second, that the statute does not purport to require railroad companies to maintain the tracks to which it relates, and the second count in the declaration finds no support in the statute should it be adjudged valid. Third, that the expenditures sought to be imposed upon the railroad company, are not for the benefit of the public, but purely for the advantage, gain, and benefit of a private company or private individuals. This removes from the case all consideration touching the taking of private property for public use, and the taking of money and the compelling of its expenditure is the taking of property. Fourth, the order of the railroad commission in no way provides for compensation to the railroad company for the expenditure it is directed to make. Fifth, the statute only contemplates spur tracks to "manufacturing or other industrial plants," and a gravel pit is neither a manufactory nor an industrial plant of any kind. It is nothing more than a hole in the ground from which gravel may be taken; it is no more a manufacturing or an industrial plant, or other sort of plant, than a pit from which clay or earth of any kind can be taken. Sixth, the statute does not regard the interest of the railroad in any way; if it be valid, a spur track, of fifteen miles or more in length can be ordered by the commission to be constructed by the railroad company at great costs, many thousands of dollars, to a pit from which only an insignificant amount of gravel can be taken.

If this suit shall be maintained, the practical result will be that the railroad company will be deprived, against...