1. Where the plaintiff in error claimed and set up a right under
the Constitution of the United States, and the decision of the
supreme court of the state was tantamount to the denial of that
right, there is a federal question, and a motion to dismiss will be
denied.
2. Under the laws of the Michigan, the Commissioner of Railroads
has power to compel a street railroad to install safety appliances
in accordance with law, the cost to be shared between it and a
steam railroad occupying the same street, notwithstanding that the
steam road is the junior occupier of the street.
3. There is a difference between ordinary vehicles and electric
cars which
Page 189 U. S. 384
the state may, in the exercise of its police power, recognize
without denying the company operating the electric cars the equal
protection of the laws.
Where the objection that a statute does not provide for notice
is taken for the first time in this Court, and the record shows
that there actually was notice given, it is not open to the
plaintiff in error to complain that the statute did not provide for
such notice.
This case involves the legality of an order of the Commissioner
of Railroads of the State of Michigan requiring the plaintiff in
error and the Union Terminal Association of Detroit, at their own
cost and expense, to maintain and operate safety gates and
derailing and signaling appliances at Clark Avenue in said city.
The order is inserted in the margin.
*
Page 189 U. S. 385
The order was made and issued under Act 171 of the Public Acts
of the State of 1893, section 5 of which provides as follows:
"The Commissioner of Railroads shall, as soon as possible after
the passage of this act, examine the crossings of the tracks of
railroads and street railroads then existing, and order such
changes made in the manner of such crossings, or such safeguards
for protection against accidents to be provided thereat, as in his
judgment ought to be so made or provided, and shall apportion any
expense incidental thereto between the companies affected as he may
deem just and reasonable."
The statute and order are attacked as depriving the plaintiff in
error of its property without due process of law, because
compliance with the order
"will involve the expenditure of a large sum of money, first, in
the construction of the said safety devices, and, if the same are
constructed, in the maintenance and repair thereof."
The plaintiff in error is a street railroad company incorporated
under the laws of Michigan, and operates a railroad on certain
streets of the City of Detroit, including Clark Avenue. It
succeeded in ownership and operation a company known as the Fort
Street & Elmwood Avenue Railway, which was also a street
railway corporation. The latter company was authorized to construct
its road on Clark Avenue, and under its grant did construct and
operate its road thereon. "At the time the track was constructed"
(we quote from the opinion of the supreme court of the state)
"on Clark Avenue, there was no railroad, or highway, street,
lane, or alley, or crossing of any kind over Clark Avenue between
Fort Street and the River
Page 189 U. S. 386
Road. In 1882 or 1883, the Wabash Railroad constructed a single
track across Clark Avenue and across petitioner's tracks. Up to
that time, there had been no crossing over Clark Avenue, between
Fort Street and the River Road, of any kind -- either that of a
railroad or a public highway, a private way, road, street, or
alley. In the year 1893 or thereabouts, the union station was
opened at the corner of Third and Fort Streets in Detroit, and
since that time, said station has been used jointly by the Wabash,
the Detroit, Lansing & Northern, the Flint & Pere
Marquette, the Detroit & Lima Northern, and the Canadian
Pacific railroads as a terminal point, the tracks over Clark Avenue
at this point having been increased from one to three to
accommodate the increased traffic. These tracks are used as
approaches to the union station, and incoming and outgoing trains
and cars of all the foregoing roads, except the Canadian Pacific
Railroad, pass over said tracks. There are thirty-eight regular
daily passenger trains crossing Clark Avenue upon these tracks.
Besides this, the Canadian Pacific uses the station as an eastern
terminus, connecting with the other roads for purposes of through
east and west traffic."
In 1893, the legislature of the state passed the act
hereinbefore set out, and under its authority the defendant in
error made the order complained of.
The case was submitted upon the petition of relator (plaintiff
in error) and the answer of respondent (defendant in error), and
the mandamus prayed for denied. 127 Mich. 219. This writ of error
was then sued out.
MR. JUSTICE McKENNA delivered the opinion of the Court.
1. A motion is made to dismiss the writ of error on the
Page 189 U. S. 387
ground that the record exhibits no federal question. The motion
is denied. The plaintiff claimed and set up a right under the
Constitution of the United States, and the decision of the supreme
court of the state was tantamount to the denial of that right.
Kaukauna Co. v. Green Bay &c. Canal Co., 142 U.
S. 254.
2. The argument of plaintiff in error on the merits is that it
was the first to occupy Clark Avenue; that at that time there was
no public highway or street crossing at such avenue; that
subsequently the steam railroads laid their tracks, the Wabash
Railway Company being the first to do so, but installed no safety
devices of any kind, "though it were the junior company;" that the
tracks on the other railroads were subsequently constructed and are
controlled by the Union Terminal Company. It is hence asserted that
the plaintiff in error cannot be made liable for any part of the
cost of safety devices, because it is the settled constitutional
law of Michigan that its occupation constituted no additional
burden upon the highway, but is simply a method of using the
highway for the purpose of public travel and
"in direct furtherance of the purpose for which the highway was
established; that the street railroad company, in contemplation of
the law, bears no different relation to the highway than that of
any other person using the highway for the moving of vehicles or
for any other method of public or private travel, and cannot, as
between others using the highway for like purposes, be required
alone to bear the expense of installing and maintaining safety
devices at steam railroad crossings designed for the protection of
all the traveling public."
And further, it is also a well established principle of the
constitutional law of Michigan that a junior road seeking to cross
another cannot shift any portion of the expense of maintaining
safety devices without compensation, though the senior company did
not insist upon the installation of the devices or compensation at
the time the tracks of the junior company were constructed. In
other words, it is asserted that the dangerous condition arose, and
yet arises, from the steam railroads, and on them alone can the
cost of safety devices be legally imposed.
Page 189 U. S. 388
3. It is also insisted that the law is unconstitutional because
it does not provide for notice.
(1) It was conceded by the supreme court of the state that it
was the law of the state that the compensation for the damages
caused by crossing the tracks of a railroad by another railroad or
by a highway included the cost of making the highway safe. But the
court said:
"An examination of these cases will show they were all cases
where it was sought to obtain a right of way either for a railroad
across a highway or for a highway across a railroad, or a crossing
for one railroad over the right of way of another, and none of the
cases relates to the question involved here, as to who shall bear
the expense of additional safeguards ordered upon roads which have
crossed each other for a long period of time."
And besides this element of time, the court said that there were
other elements of damage which were either too remote or depended
upon the relation of the roads to the state. Both elements are
important. The conditions which exist today could not have been
contemplated years ago, or be the measure of the rights and
relations of the respective roads. Those rights and relations were
necessarily determined at the time the crossings were made. What
could not be foreseen could not have been made a ground of action,
and if the growth of business and population can give rights to
either of the bisecting roads, it is not clear how the police power
of the state can be limited in its control over either of them. The
supreme court of the state recognized this, and fortified its views
by Michigan cases.
In
Flint & Pere Marquette R. Co. v. Detroit & Bay
City R. Co., 64 Mich. 350, the court, in an elaborate opinion,
expressed the rules of compensation when the right of one road to
cross the tracks of another was sought by condemnation proceedings.
In that case, compensation was claimed not only for the use of the
crossing, but for the cost of maintaining signals or a cross
system, cost of a watchman, and cost of stopping trains. These
items were rejected. There was some uncertainty in the evidence,
and the items for maintaining signals or the crossing system were
disallowed on that ground,
Page 189 U. S. 389
but the court pointed out the difference between a "structural
change in the property," for which compensation should be given,
and those things which may be required by the legislature in the
exercise of police regulations, as to which the roads "stand upon
an equality before the law, and neither can levy tribute upon the
other as a compensation for obedience to its requirements." And
such regulations, it was observed, "are as binding upon an existing
road as one newly organized." The court cited the case of
Mass.
Cent. R. Co. v. Boston, C. & F. R. Co., 121 Mass. 124,
where MR. JUSTICE GRAY, then Chief Justice of the Supreme Judicial
Court of Massachusetts, expressed the law as follows:
"A railroad corporation across whose road another railroad or
highway is laid out has the like right as all individuals or bodies
politic and corporate owning lands or easements to recover damages
for the injury occasioned to its title or right in the land
occupied by its road, taking into consideration any fences or
structures upon the land or changes in its surface absolutely
required by law or in fact necessary to be made by the corporation
injured in order to accommodate its own land to the new condition.
Commonwealth v. Boston & M. R. Co., 3 Cush. 25, 53;
Old Colony Railroad Co. v. Plymouth County, 14 Gray 155;
Grand Junction Railroad Co. v. Middlesex County, 14 Gray
553. But it is not entitled to damages for the interruption and
inconvenience occasioned to its business, nor for the increased
liability to damages from accidents, nor for increased expense for
ringing the bell, nor for the risk of being ordered by the county
commissioners, when in their judgment the safety and convenience of
the public may require it, to provide additional safeguards for
travelers crossing its railroad.
Proprietors of Locks and
Canals v. Nashua & L.R. Corp., 10 Cush. 385, 392;
Boston & W. Railroad Co. v. Old Colony Railroad Co.,
12 Cush. 605, 611,
s.c., 3 Allen 142, 146;
Old Colony
Railroad Co. v. Plymouth County, 14 Gray 155."
It is, however, contended that a street railway has a different
relation to a street than that which a steam railroad has; that the
former
"acquires a right to use the same in common with
Page 189 U. S. 390
other members of the traveling public, and is not an additional
burden upon the street, but is merely an adaptation of the highway
to a particular means of travel, and does not constitute an
additional servitude. A railroad is, on the other hand, an
additional servitude, and if it is built across a highway, it must
do all things necessary to render the highway, for all its
legitimate uses, as safe as it was before the railroad was built
across it, or would be if such railroad were not built across it at
all."
It may be that this difference is recognized as to abutting
property owners or crossing railroads, but it cannot be recognized
as limiting or affecting the power of the state to regulate the
management of the roads in view of the danger of their operation to
the public. Whether electricity be the motive power, or steam be
the motive power, there is enough danger in the operation of either
to justify regulation. The record in this case shows that there are
thirty-eight daily passenger trains crossing Clark Avenue, and that
the cars of the plaintiff in error pass every few minutes. It is
manifest, as the supreme court of the state observed, that the
crossing "is a place of unusual danger not only to the passengers
in steam cars, but also to the passengers in the electric cars,"
and that the danger is caused by both. In such situation, the city
is surely not powerless to act, nor before acting must it ascertain
the exact quantum of damage caused by each road, and by that
standard assign the cost of protecting the public.
See Railroad
Co. v. Street Ry. Co., 89 Me. 328.
It is also objected to the order that it deprives plaintiff in
error of the equal protection of the laws. The argument to support
this contention is an extension of that which claims that the use
of the street by the plaintiff in error "is merely an adaptation of
the highway to the particular means of travel." And it is deduced
that an electric street railway has an equality of rights with
ordinary vehicles. That we think there is a difference between
ordinary vehicles and cars propelled by electricity, which may be
recognized by the state in the exercise of its police power, we
have sufficiently indicated.
(2) The objection that the statute does not provide for
notice
Page 189 U. S. 391
seems to be made for the first time in this Court. It is not
mentioned in the majority opinion nor in the dissenting opinion. It
is not particularized in the petition for the writ of error nor in
the assignment of errors. In the petition for this writ of error,
it is recited that the plaintiff in error, in its application for
mandamus, claimed that the order of the railroad commissioners was
invalid because it deprived plaintiff in error of its property
without due process of law and denied it the equal protection of
the laws. And also recited that, on the "issue framed therein, said
cause went to a final hearing." The cause was submitted on petition
and answer, and the petition alleged "that notice was given by
respondent to relator and the Union Terminal Association, and the
hearing had at which relator's representative objected to the
making of said order." It is therefore not open to the plaintiff in
error to complain that the statute does not provide for notice.
Judgment affirmed.
*
"
State of Michigan"
"
Office of the Commissioner of Railroads"
"
In re Application of the Common Council of the City of
Detroit for Additional Protection at the Clark Avenue Crossing of
the Tracks of the Union Terminal Association, in the City of
Detroit, County of Wayne, Michigan."
"Application having been received by the Commissioner of
Railroads from the Common Council of the City of Detroit, Wayne
County, Michigan, for additional protection at the Clark Avenue
crossing of the tracks of the Union Terminal Association in said
City of Detroit, Wayne County, Michigan;"
"And after a personal inspection of the premises aforesaid, and
after hearing representations of the city officials of the City of
Detroit, as well as the arguments of the representatives of the
said railroad company above named in relation thereto, and having
decided after due deliberation that the public interests required
said additional protection at the said crossing;"
"Now therefore by authority vested in me by law, it is hereby
ordered:"
"That within sixty days from date hereof, you, the said Union
Terminal Association Railway Company, cause to be constructed and
thereafter operated and maintained safety gates, and derailing and
signaling appliances to be operated day and night by a watchman
from a tower. Said tower to be constructed at the best point of
vision at the said crossing, and so constructed that the said
operator may have plain view of movements of all trains or cars on
both of the respective lines. Derailers shall be provided and
placed in the tracks of the Fort Wayne & Belle Isle Railway not
less than 75 feet from clearance point of crossing, and signals
shall be placed on the tracks of the Union Terminal Association at
a distance of not less than 600 feet from said crossing. Said
derailers and signals to be operated by levers in said tower, and
such levers to be properly interlocked."
"And it is further ordered that cost and expense of the
construction, maintenance, and operation of said gates, tower, and
derailing and signaling appliance shall be borne by the Union
Terminal Association and the Fort Wayne & Belle Isle Railway
Company, equally, share and share alike. This appliance to be
constructed in accordance with plans to be submitted to and
approved by the Commissioner of Railroads within thirty days from
date hereof, and such appliance to be further approved by the
Commissioner of Railroads before being put into use. This order is
subject to modification at any time when, in the opinion of the
Commissioner of Railroads, the public safety will be more
effectually secured."
