1. A state may require a railroad company to do away with grade
crossings of public streets, whether laid out before or after the
construction of the railroad, and may place upon the company the
expense of executing the state's plan to accomplish this by running
the streets over or beneath the tracks. P.
254 U. S.
409.
2. Of the two conflicting interests in such cases -- that of the
public using the streets and that of the railroad and the public
using it -- the former is paramount, and the state may
constitutionally insist that the streets be kept free of danger
whatever the cost to the parties introducing it. P.
254 U. S. 410.
Distinguishing cases involving the power to regulate trains.
3. The authority so exercised is an obvious case of the police
power, or it may be regarded as an authority impliedly reserved
when the state granted to the railroad the right to occupy the
land.
Id.
Page 254 U. S. 395
4. The order requiring the changes should be regarded as stating
a condition that must be complied with if the railroad continues to
use the soil of the state, but the railroad cannot be compelled to
serve at a loss. P.
254 U. S.
410.
5. There being reason to believe that safety requires the
change, the facts that the execution of the plan will interfere
with prior contracts and involve expenditures so heavy as to impair
the efficiency of the railroad as an agency of interstate commerce,
or even lead to bankruptcy, do not bring the state's order into
conflict with the contract or commerce clauses of the Constitution
or the due process clause of the Fourteenth Amendment. P.
254 U. S.
411.
6. The rights of the railroad company in respect of private
sidings are no greater than those in respect of the main line.
Id.
7. The burden of paying for the required changes may be laid
upon an operating lessee railroad company without regard to the
financial ability of the lessors to compensate it for the required
improvements if the leases should be terminated.
Id.
8. As the railroad company might be charged the entire expense,
it cannot complain that only 10 percent of it is cast upon a street
railway company as to streets used by the latter. P.
254 U. S.
412.
9. While it may be that an order of a state board directing such
changes at heavy expense to a railroad company would be so
unreasonable as to be void if the evidence plainly did not warrant
a finding that the particular crossings were dangerous, yet such
crossings are generally dangerous, and the conclusion reached by
the board and confirmed by the state courts is entitled to much
weight, and, if reasonably warranted, must stand.
Id.
10. As a state may delegate legislative or
quasi-legislative power to a board, subject to review in
the courts (
Hall v. Geiger-Jones Co., 242 U.
S. 539), the constitutional aspect of changes ordered at
grade crossings, as regards the railroad company affected, is the
same whether the board ordering them was obliged to do so upon
finding danger or had a discretion in the matter under the state
law. P.
254 U. S.
413.
11. A street railway crossing the tracks of a steam road at
grade increases the danger, and may be obliged to bear part of the
expense of removing it.
Id.
12. And where changes are lawfully ordered, a water company is
not deprived of property without due process by being obliged to
adjust the pipes to the new conditions at its own expense.
Id.
13. In being so required, a water company is not denied equal
protection of the laws as compared with a street railroad company
required to pay 10 percent of the total expense of the crossing
and
Page 254 U. S. 396
presumably more than the expense of merely readjusting it
tracks. P.
254 U. S.
413.
14.
Held that change ordered at railroad grade
crossings involving expense to a telegraph company in adjusting it
line did not infringe its right under the Fourteenth Amendment or
violate the commerce clause. P.
254 U. S.
414.
15. An order and plan for abolishing grade crossings of a
railroad and public streets, if otherwise valid, is not
unconstitutional because it will dislocate private sidings
connected with the railroad and put their owners to expense.
Id.
89 N.L.J. 57, 24; 90 N.J.L. 672, 673, 714, 729, 677, 694, 715,
affirmed.
The cases are stated in the opinion.
Page 254 U. S. 407
MR. JUSTICE HOLMES delivered the opinion of the Court.
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.L. 57, 24; 90 N.J.L. 672, 673, 714, 729,
677, 694. 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.
Page 254 U. S. 408
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 percentum 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,
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
Page 254 U. S. 409
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,
232 U. S.
438.
"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;
Northern Pacific Ry. Co. v. Puget Sound
& Willapa Harbor Ry. Co., 250 U.
S. 332. 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 earlier
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. Co. Commission v. Mobile & Ohio R. Co.,
244 U. S. 388,
244 U. S. 391;
Chicago,
Page 254 U. S. 410
Burlington & Quincy R. Co. v. Railroad Commissioners of
Wisconsin, 237 U. S. 220. 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
Page 254 U. S. 411
nor engagement in interstate commerce can take away this
fundamental right of the sovereign of the soil.
Denver &
Rio Grande R. Co. v. Denver, 250 U. S. 241,
250 U. S. 246. To
engage in interstate commerce, the railroad must get onto the land,
and to get onto it, must comply with the conditions imposed by the
state for the safety of its citizens. Contracts made by the road
are made subject to the possible exercise of the sovereign right.
Denver & Rio. Grande R. Co. v. Denver, 250 U.
S. 241,
250 U. S. 244;
Union Dry Goods Co. v. Georgia Public Service Co.,
248 U. S. 372;
Louisville & Nashville R. Co. v. Mottley, 219 U.
S. 467;
Northern Pacific Ry. Co. v. Duluth,
208 U. S. 583;
Manigault v. Springs, 199 U. S. 473,
199 U. S. 480.
If the burdens imposed are so great that the road cannot be run at
a profit, it can stop, whatever the misfortunes the stopping may
produce.
Brooks-Scanlon Co. v. R. Co. Commissioners,
251 U. S. 396.
Intelligent self-interest should lead to a careful consideration of
what the road is able to do without ruin, but this is not a
constitutional duty. In the opinion of the courts below, the
evidence justified the conclusion of the Board that the expense
would not be ruinous. Many details as to the particular situation
of this road are disposed of without the need of further mention by
what we have said thus far.
The plaintiff in error discusses with considerable detail the
effect of the changes upon private sidings. But its rights in
respect of these are at least no greater than those in respect of
the main line, and are covered by the preceding discussion. So are
the objections that, if the leases ever are terminated, it has no
chance of being repaid the value of its improvements because of the
smallness of the lessor corporations. They would have this property
in that event, and it would be subject to their obligation, but the
answer to the complaint of the plaintiff in error in all its forms
is that which we have made. Whatever the cost, it may be required
by New Jersey not to imperil
Page 254 U. S. 412
the highways if it does business there. We agree with the
decisions below that, as the railroad company might have been
charged with the whole expense, the fact that no more than ten
percentum of the cost of three crossings is thrown upon a street
railway company is a matter of which it cannot complain.
If we could see that the evidence plainly did not warrant a
finding that the particular crossings were dangerous, there might
be room for the argument that the order was so unreasonable as to
be void. The number of accidents shown was small, and if we went
upon that alone, we well might hesitate. But the situation is one
that always is dangerous. The Board must be supposed to have known
the locality and to have had an advantage similar to that of a
judge who sees and hears the witnesses. The courts of the state
have confirmed its judgment. The tribunals were not bound to await
a collision that might cost the road a sum comparable to the cost
of the change. If they were reasonably warranted in their
conclusion, their judgment must stand. We cannot say that they were
not. At some crossings, the danger was less than at others, but it
was necessary, or at least prudent, to proceed on a general plan.
Upon the whole matter, while it is difficult to avoid the
apprehension that the state officials hardly gave due weight to the
situation of the company as a whole in their anxiety for the
wellbeing of the state, we are of opinion that they did not exceed
their constitutional powers. The order should be regarded as
stating a condition that must be complied with if the company
continues to use the New Jersey soil. Probably the conclusion that
we have reached could be supported upon the narrower ground that a
continuing obligation was imposed by the charters of the plaintiff
in error's lessors, and was assumed by the plaintiff in error, but
that which we have stated seems to us free from doubt.
Some argument is based upon a discretion supposed
Page 254 U. S. 413
to be left to the Board by the statute, which reads that, when
it appears to the Board that the crossing is dangerous, it may
order, &c. The state courts seem to regard the words as
imposing a positive duty, but, upon either construction, we
perceive no infraction of the company's constitutional rights. If
the words are imperative, the reasons that we have given apply. If
they leave a discretion, it is subject to review by the courts, and
this Court has no concern with the question how far legislative or
quasi-legislative powers may be delegated to a commission
or board.
Hall v. Geiger-Jones Co., 242 U.
S. 539;
Engel v. O'Malley, 219 U.
S. 128;
Prentis v. Atlantic Coast Line Co.,
211 U. S. 210,
211 U. S. 225.
We deem it unnecessary to give our reasons in greater detail for
deciding that the judgment against the Erie Railroad Company must
be affirmed.
While the Railroad Company contends that the Public Service
Railway Company should be charged more, the latter company comes
here upon the proposition that it should be charged nothing. We
agree with the courts below that a street railway crossing the
tracks of a steam road at grade in a public street increases the
danger, and may be required to bear a part of the expense of
removing it. The amount charged does not appear to be excessive,
and, upon the principles that we have laid down, the payment of it
may be made a condition of the continued right to use the streets.
Detroit, Fort Wayne & Belle Isle Ry. v. Osborn,
189 U. S. 383,
189 U. S. 390;
Missouri Pacific Ry. Co. v. Omaha, 235 U.
S. 121,
235 U. S.
129.
The Passaic Water Company contends that the expense of moving
its pipes cannot be thrown wholly upon it -- mainly on the ground
that the change of grade was unlawful. This ground fails, and the
company must adjust itself to the lawfully changed conditions. It
also contends that it does not receive the equal protection of the
laws because the street railway, instead of being charged
Page 254 U. S. 414
the expense of moving its tracks, is charged ten percentum of
the total expense at its crossings. Presumably this charge is
greater than the mere adjustment of tracks to a new surface. It is
based upon the share of the street railroad in creating the danger.
As the street railroad cannot complain, certainly the water company
cannot.
The Western Union Telegraph Company makes similar objections,
and also says that its interstate commerce is interfered with, and
presents from its own point of view arguments dealt with so far as
they seem to us to need mention in disposing of the principal case.
The other plaintiffs in error own side tracks which will be
dislocated by the change, and they will be put to further expense
if the plan is carried out according to what the New Jersey Court
decides to be suggestions, not commands. The rights in the side
tracks are subordinate to changes in the main track otherwise
lawful. As against these as against the others, the judgment of the
court of errors and appeals is affirmed.
Judgments affirmed.
THE CHIEF JUSTICE, MR. JUSTICE VAN DEVANTER, and MR. JUSTICE
McREYNOLDS dissent.