A railway company may be required by the state, or by a
municipality acting under the authority of the state, to construct
overhead crossings or viaducts over its tracks at its own expense;
the consequent expense is
damnum absque injuria or
compensated by the public benefit in which the company shares, and
is not a taking of property without due process of law.
In the exercising of the police power, the means to be employed
to promote the public safety are primarily in the judgment of the
legislature, and the courts will not interfere with duly enacted
legislation which has a substantial relation to the purpose to be
accomplished and does not arbitrarily interfere with private
rights.
If the state court has held that a municipality has power to
pass ordinances requiring railway companies to build viaducts, this
Court can only declare such an ordinance unconstitutional under the
Fourteenth Amendment as an arbitrary abuse of power in a clear and
unmistakable case.
A municipal ordinance requiring a railroad company to construct
a viaduct over crowded streets and which is otherwise valid is not
unconstitutional as depriving the company of its property without
due process of law because it requires the company to construct the
work at its own expense, or because it requires the viaduct to be
erected in a manner involving greater expense than though erected
in a different and possibly adequate manner, or because the viaduct
is only to carry a part of the traffic of the street.
In determining whether a municipal ordinance is or is not an
unconstitutional abuse of power, this Court will not disturb the
conclusions of two courts upon the facts regarding the object and
necessity for the work and the sufficiency of the plans and
specifications.
Where an ordinance requiring work to be done is otherwise valid,
this Court will not, at the instance of a party affected thereby
and in advance of compliance therewith, declare it unconstitutional
as depriving that part,y of its property without due process of law
because
Page 235 U. S. 122
sufficient time is not allowed to commence work. A court of
equity has power to relieve a party from the infliction of
unwarranted penalties for noncompliance with such an ordinance if
compliance within the period fixed is physically impossible. The
ordinance of Omaha, Nebraska, of March, 1910, requiring the
Missouri Pacific Railway Company to construct a viaduct over its
railway at Dodge Street is not unconstitutional as an arbitrary
exercise of power and deprivation of property of the railway
company without due process of law.
197 F. 516 affirmed.
The facts, which involve the constitutionality under the due
process provision of the Fourteenth Amendment of an ordinance of
the City of Omaha requiring the construction of a viaduct by a
railroad company, are stated in the opinion.
Page 235 U. S. 126
MR. JUSTICE DAY delivered the opinion of the Court.
This suit was originally instituted in the Circuit Court of the
United States for the District of Nebraska. Its object was to
enjoin the City of Omaha from requiring the Missouri Pacific
Railway Company, by virtue of a certain ordinance of the city, to
construct a viaduct over and across its line of railway and along
Dodge Street in said city. The circuit court dismissed the bill,
and the decree was affirmed in the circuit court of appeals. 197 F.
516. The ordinance, passed March 29, 1910, ordered the appellant to
erect, construct, and complete the viaduct and approaches on Dodge
Street, of the width, height, strength, and of the material and
manner of construction required by the City Engineer of the City of
Omaha, and according to the plans and specifications prepared by
him. The ordinance required that the company commence the erection
and construction of the viaduct by May 1, 1910, and complete the
same on or before January 1, 1911.
Dodge Street is a well known thoroughfare of the city for the
passage of foot passengers and vehicles of all sorts, and it is
also used by the tracks of a street railway company. There is
testimony in the record tending to show that the viaduct, as
ordered to be constructed, is of a width and strength sufficient to
sustain the street railway system theretofore laid upon Dodge
Street, and crossing thereon the tracks of the railway company. It
is contended,
Page 235 U. S. 127
and there is testimony tending to show, that a viaduct
sufficient to carry the ordinary traffic of the street, other than
that of the street railroad, could be constructed at a cost of
about $30,000, whereas the viaduct ordered to be built would cost
approximately $80,000, the increase being largely due to the
requirements of the street railway traffic. This requirement on the
part of the city is alleged to be a confiscation of the property of
the railroad company to the extent of this increased cost, and a
taking of its property without compensation for the benefit of
another, and therefore without due process of law, contrary to the
Fourteenth Amendment of the Constitution of the United States.
That a railway company may be required by the state, or by a
duly authorized municipality acting under its authority, to
construct overhead crossings or viaducts at its own expense, and
that the consequent cost to the company as a matter of law is
damnum absque injuria, or deemed to be compensated by the
public benefit which the company is supposed to share, is well
settled by prior adjudications of this Court.
Chicago &c.
Railroad v. Nebraska, 170 U. S. 57;
Chicago &c. Railway v. Drainage Commissioners,
200 U. S. 561;
Northern Pacific Railway v. Minnesota, 208 U.
S. 583;
Cincinnati, Indianapolis & Western
Railway v. Connersville, 218 U. S. 336;
Chicago, Mil. & St. Paul Railway v. Minneapolis,
232 U. S. 430,
232 U. S.
438.
This is done in the exercise of the police power, and the means
to be employed to promote the public safety are primarily in the
judgment of the legislative branch of the government, to whose
authority such matters are committed, and so long as the means have
a substantial relation to the purpose to be accomplished, and there
is no arbitrary interference with private rights, the courts cannot
interfere with the exercise of the power by enjoining regulations
made in the interest of public safety which the legislature has
duly enacted.
Chicago, Burlington &
Quincy Railway
Page 235 U. S. 128
v. Drainage Commissioners, 200 U.
S. 561;
McLean v. Arkansas, 211 U.
S. 539;
Atlantic Coast Line v. Goldsboro,
232 U. S. 548.
That the City of Omaha had power to pass an ordinance of this
character in execution of the authority conferred upon it by the
legislature of the state has been determined by the highest court
of the State of Nebraska, considering Chapter 12-a, ยง 128, Compiled
Statutes of Nebraska, 1911.
* State v.
Union Pacific Railroad Company, 94 Neb. 556. In that case, the
state supreme court declares the
"power to require railway companies to construct upon their
tracks at street crossings
Page 235 U. S. 129
such viaducts as may be deemed and declared by the mayor and
council necessary for the safety and protection of the public, is
in direct terms conferred by the legislature upon the City of
Omaha."
As this is a question of state law (
Atlantic Coast Line v.
Goldsboro, 232 U. S. 548), we
need not dwell upon it further. Indeed, such authority seems to be
admitted in the brief of appellant, and the argument is addressed
to an alleged abuse of the power conferred. To maintain this
position, it is first insisted that the construction of the viaduct
in such manner as to carry the tracks of the street railway company
will entail additional expense of about $50,000 over the cost of a
viaduct providing only for the transportation of other kinds of
traffic. It may be that it would be more fair and equitable to
require the street railway company to share in the expense of the
viaduct, and, if the municipality had been authorized so to do by
competent authority, it would have been a constitutional exercise
of the police power to have made such division of expenses.
Detroit &c. Railway Company v. Osborn, 189 U.
S. 383,
189 U. S. 389.
But there is nothing in the statute requiring the municipality to
divide the expense of such improvement among those responsible for
the dangerous condition of the street crossing. Where a number of
railroads have contributed to the condition which necessitates such
improvement in the interest of public safety, it is not an
unconstitutional exercise of authority, as this Court has held, to
require one of the companies interested to perform such work at its
own expense.
Chicago &c. Railroad Company v. Nebraska,
170 U. S. 57,
170 U. S. 76.
The broad authority to require any railroad company to make such
improvement in the interest of public safety is conferred by the
legislature upon the city. The safety of the traveling public is
the primary consideration, and this is accomplished by the
construction of the viaduct, which is used by many people who
travel across the viaduct every day. The public, when being
Page 235 U. S. 130
transported by the street railway company, was exposed to the
dangers of a grade crossing, which it was within the authority of
the state to authorize the municipality to discontinue. Under
competent legislation, the city has undertaken to do this. In
placing the expense entirely upon the railroad company, whose
locomotives and trains are principally responsible for the
resulting danger to the public, we do not find such abuse of the
recognized authority of the state as has justified the courts in
some cases in enjoining the enforcement of state and municipal
legislation. Examples of such arbitrary and oppressive action with
which the courts may interfere are found in such cases as
Yick
Wo v. Hopkins, 118 U. S. 356, and
Dobbins v. Los Angeles, 195 U. S. 223.
The Constitution of the United States, requiring that no state
shall deprive any person of life, liberty, or property without due
process of law, has not undertaken to equalize all the inequalities
which may result from the exercise of recognized state authority.
In the exercise of the police power, it may happen, as it often
does, that inequality results which the law is powerless to
redress. It is only in those clear and unmistakable cases of abuse
of legislative authority that the court is authorized, under
sanction of the federal Constitution, to enjoin the exercise of
legislative power. As we have said, we do not think this case
presents that character of abuse because the street railway company
is not required to share in the expense of the erection of this
viaduct.
It is next urged that there is an abuse of authority shown which
should justify an injunction against the enforcement of this
ordinance because a viaduct about 600 feet long would be sufficient
to carry the traffic of Dodge Street over the railroad crossing,
including the traffic of the street railway company, yet by this
ordinance it is sought to compel the railroad company to construct
a viaduct 810 feet long, the extension being made necessary,
Page 235 U. S. 131
it is said, for the purpose of carrying the Dodge Street
traffic, including that of the street railway company, over a
proposed boulevard which the city might thereafter decide to lay
out and establish across Dodge Street, which boulevard is alleged
to be about 350 feet east of, and parallel to, the line of the
railroad. But there is testimony in the record tending to show that
this extension of the original plan of the viaduct was for the
purpose of making better grades in crossing thereon, and both
courts below have rejected the contention of the railroad company
that it was intended thereby to make a crossing for a proposed
boulevard thereafter to be laid out. We are not prepared to disturb
this conclusion of two courts upon the facts.
It is next insisted that the ordinance in question is
unconstitutional and void because the railroad company is required
to construct a viaduct along the south side of Dodge Street only,
leaving some portion of the street -- that upon the north side --
still open to public traffic; in other words, the argument is that
the viaduct would be made to carry a part of the traffic, still
leaving some portion of the street open. We are unable to find
force in this contention. The necessity of the viaduct and the
manner of its construction were primarily vested in the discretion
of the city authorities, and that they have found cause to leave
some part of the street still open to traffic does not afford any
reason why the principal part of the traffic, including that of the
street railway company, might not, in the interest of the public
safety, be required to be carried by the overhead structure. The
local authorities are presumed to have knowledge of local
conditions, and to have been induced by competent reasons to take
the action which they did. That the city had authority to require a
viaduct to be constructed over tracks without entirely closing the
street was held by the Supreme Court of Nebraska.
State v.
Union Union Pacific Railroad Company, 94 Neb.,
supra.
Page 235 U. S. 132
It is further contended the ordinance is void for uncertainty,
and that the plans are confused and uncertain, and not sufficient
to indicate the width, height, and manner of construction of the
proposed viaduct, and that the plans and specifications existing
are not capable of being followed in such manner as to comply with
the ordinance. This contention was also rejected by the courts
below upon the facts shown, and we are not prepared to disturb the
conclusion that the plans and specifications were sufficient to
enable the railroad company to know what it had to do, and to make
the structure required of it.
The last objection is that the railroad company was required to
begin construction within twenty-six days after the passing of the
ordinance -- a time so short as to render it physically impossible
to comply with the ordinance, and that, upon lack of such
compliance, the ordinance imposes penalties upon the railroad
company, the collection of which penalties it is also sought to
enjoin. It is to be noted that the enforcement of this ordinance
has been entirely prevented by the injunction issued in this case,
and kept in force since, and we have no doubt that, should an
attempt be made hereafter to require compliance with the terms of
the ordinance as to the beginning of construction, they would be
given a reasonable interpretation so as to permit of preparation
before the beginning of the work, and if any oppression should
result in this respect, there is no doubt as to the power of a
court of equity to relieve the railroad company from the infliction
of unwarranted penalties if it should turn out to be physically
impossible, as the company insists, to comply with the ordinance in
this respect.
We find no error in the decree of the circuit court of appeals
affirming the decree of the circuit court, and it is
accordingly
Affirmed.
*
"To require any railway company or companies owning or operating
any railway track or tracks upon or across any public street or
streets of the city, to erect, construct, reconstruct, complete,
and keep in repair any viaduct or viaducts upon or along such
street or streets and over or under such track or tracks, including
the approaches of such viaduct or viaducts as may be deemed and
declared by the mayor and council necessary for the safety and
protection of the public. . . . The width, height, and strength of
any such viaduct and approaches thereto, the material therefor, and
the manner of construction thereof shall be as required by the City
Engineer, and approved by the mayor and council. When two or more
railroad companies own or operate separate lines of track to be
crossed by any such viaduct, the proportion thereof, and the
approaches thereto, to be constructed by each, or the cost to be
borne by each, shall be determined by the mayor and council. It
shall be the duty of any railroad company or companies, upon being
required as herein provided to erect, construct, reconstruct, or
repair any viaduct, to proceed within the time and in the manner
required by the mayor and council to erect, construct, reconstruct,
or repair the same, and it shall be a misdemeanor for any railroad
company or companies to fail, neglect, or refuse to perform such
duty, and upon conviction of any such company or companies shall be
fined $100, and each day such company or companies shall fail,
neglect, or refuse to perform such duty shall be deemed and held to
be a separate and distinct offense, and, in addition to the penalty
herein provided, any such company or companies shall be compelled
by mandamus or other appropriate proceedings to erect, construct,
reconstruct, or repair any viaduct as may be required by ordinance
as herein provided."