Upon review of a judgment of a state court, this Court has
jurisdiction to decide questions of state law concerning the
construction and effect on the case of a state statute enacted
since the decision below was made, or it may refer such question to
the state court by reversing and remanding the case. P. 130.
306 Mo. 149 reversed.
Error to a judgment of the Supreme Court of Missouri which
sustained an order of the Public Service Commission
Page 273 U. S. 127
requiring the Wabash Railway Company to abolish a grade crossing
in St. Louis. The Chicago, Rock Island & Pacific Railway
Company was also a party to the proceedings, and joined in suing
out the writ of error.
MR. JUSTICE STONE delivered the opinion of the Court.
The mayor of St. Louis instituted a proceeding before the Public
Service Commission of the state of Missouri to eliminate a grade
crossing of the Wabash Railway Company at Delmar Boulevard in the
City of St. Louis. The Commission ordered the Wabash Railway to
abolish this grade crossing by depressing its tracks and
constructing a viaduct for street traffic, with an 18-foot
clearance above the tracks. This order, set aside by the Circuit
Court of Cole County, was reinstated by the Supreme Court of
Missouri. 306 Mo. 149. The case is here on writ of error to that
court on the ground that the order results in an unconstitutional
deprivation of property, impairs the obligation of contract, and
violates paragraph 18, § 1, of the Interstate Commerce Act, as
added by Act May 29, 1917, and amended by Act Feb. 28, 1920, § 402.
Judicial Code, § 237, before amended.
All the proceedings below were limited in their purpose and
effect to the removal of the single grade crossing named. There is
no dispute that the hazardous character of the crossing makes the
separation of grades necessary. The controversy arises from the
fact that the change in grade at Delmar Boulevard is the initial
step in a general
Page 273 U. S. 128
scheme for abolishing all grade crossings within an extensive
area of the city. Both the railroad and the city have evolved
comprehensive plans for grade crossing elimination. The essential
difference between the two programs is that the city proposes the
depression of the railroad tracks, with a consequent elevation of
streets spanning the tracks by viaduct, while the railroad urges
the elevation of the tracks upon embankments, leaving the streets
at their present level. The Delmar Boulevard crossing is so
situated that the Commission's order directing depression of the
railroad tracks there is a virtual, though not legal, adoption of
the city plan to the extent that other crossings at grade in the
vicinity can, as a practical matter, be eliminated only by
depressing the tracks. The Commission, however, expressly
disclaimed passing on other details of the plan. A consideration of
the proposed plans is necessary for a fuller understanding of the
issues involved, although our review is limited to the immediate
change at Delmar Boulevard directed by the order.
The Wabash Railway passes from Delmar Boulevard southeasterly
through a residential district, thence through Forest Park. The
location of its tracks within this large public park was fixed by a
contract with the park commissioners. The Chicago, Rock Island
& Pacific Railway Company, also a party to the proceeding,
enters the city from the west, crosses the right of way of the
Wabash several squares southeast of Delmar Boulevard, runs parallel
with both the Wabash tracks and the northern end of Forest Park,
and then joins the Wabash line, whose tracks it uses through the
park to the Union Terminal. Its right to use the tracks is defined
by the contract considered in
Joy v. St. Louis,
138 U. S. 1. It is
not directly affected by the Commission's order except insofar as
the separation of grades at Delmar crossing amounts to an adoption
of the city plan causing a change of level of the
Page 273 U. S. 129
Wabash tracks at other crossings and requiring a similar change
of its own.
The city plan, in its principal features, calls for the lowering
of all the tracks within a cut screened from view, the relocation
of the tracks within the park, so that the railroad would intersect
with fewer streets as it emerges from the park, and the
construction of viaducts with a vertical clearance of 18 feet. The
plan also provides for the depression or abandonment of part of the
Rock Island's tracks, for proper safeguards to be taken to obviate
the danger of flood from a neighboring stream, and the purchase of
additional land to increase the width of the right of way uniformly
to 100 feet within a designated area. The railroad plan makes
unnecessary the change of location of the right of way in the park,
but involves the construction of unsightly embankments which would
materially reduce the value of residential property in the
district. Each party makes claim for its plan the advantages of
safety, economy, numerous mechanical and engineering conveniences,
and the avoidance of certain mechanical and engineering hazards,
all or most of which, it is insisted, the other lacks. The
Commission found that either plan is practicable from an
engineering standpoint. The parties differ principally with respect
to the prospective costs, the details of which, in view of the
disposition to be made of the case, need not be considered.
Treating the Commission's order as an approval and effective
adoption of the entire city plan, plaintiffs in error contend that
the order deprives them of their property without due process of
law; that it impairs the Wabash Railway's charter, its contract
with the park commissioners, by which the present right of way of
the railroad was located in Forest Park, and the contract under
which the Rock Island is now using the tracks of the Wabash through
the park, all in violation of Article
Page 273 U. S. 130
I, § 10, of the Constitution. It is also urged that the order,
by its indirect adoption of the comprehensive city program calling
for a partial abandonment and relocation of tracks, is invalid as
violating paragraph 18, § 1, of the Interstate Commerce Act, which
requires a certificate of public convenience and necessity from the
Interstate Commerce Commission before tracks may be abandoned or
relocated.
To support the burden of proving that the order of the
Commission is arbitrary and unreasonable, plaintiffs in error
criticize numerous engineering features of the city's plan,
especially the provision for an 18-foot clearance between tracks
and viaduct, which is characterized as dangerous to life and
limb.
While the federal questions thus raised, so far as they relate
to the order now before us, are not difficult of solution, in view
of the complexity of the facts to which the principles announced by
this Court are to be applied, we cannot say that these questions
are so unsubstantial as to deprive us of jurisdiction to pass upon
them and to make proper disposition of the case as it is now
presented.
Erie R. Co. v. Public Util. Comm'n,
254 U. S. 394;
Mo. P. Ry. v. Omaha, 235 U. S. 121;
Denver & R. G. R. Co. v. Denver, 250 U.
S. 241;
R. Co. Comm'n v. Southern Pac. Co.,
264 U. S. 331. But
we find it unnecessary to decide these questions because of the
situation which has been created since the entry of the judgment
below by the enactment of the Railroad Clearance Act. Laws of
Missouri of 1925, pp. 323, 324. That statute provides that
clearances over railroad tracks shall not be less than 22 feet,
"except in cases in which the Public Service Commission finds that
such construction is impracticable." The State Commission directed
that the clearance at Delmar Boulevard crossing be 18 feet, but it
made no finding that the construction of a 22-foot clearance is
impracticable. There is thus presented a question of state law; the
effect
Page 273 U. S. 131
of this statute upon the Commission's order, the judgment of the
state supreme court, and upon action taken pursuant to them.
Ordinarily this Court, on writ of error to a state court,
considers only federal questions, and does not review questions of
state law.
Murdock v. City of
Memphis, 20 Wall. 590;
Detroit & Mackinac
Ry. v. Paper Co., 248 U. S. 30. But
where questions of state law arising after the decision below are
presented here, our appellate powers are not thus restricted.
Either because new facts have supervened since the judgment below,
Kimball v. Kimball, 174 U. S. 158;
Watts, Watts & Co. v. Unione Austriaca, 248 U. S.
9,
248 U. S. 21;
Meccano, Ltd. v. John Wanamaker, 253 U.
S. 136,
253 U. S. 141,
or because of a change in the law,
Steamship
Co. v. Joliffe, 2 Wall. 450;
Gulf, Col. &
S.F. Ry. v. Dennis, 224 U. S. 503,
this Court, in the exercise of its appellate jurisdiction, may
consider the state questions thus arising and either decide them,
Steamship Co. v. Joliffe, supra, or remand the cause for
appropriate action by the state courts.
Gulf, Col. & S. F.
Ry. v. Dennis, supra; Dorchy v. Kansas, 264 U.
S. 286. The meaning and effect of the state statute now
in question are primarily for the determination of the state court.
While this Court may decide these questions, it is not obliged to
do so, and, in view of its nature, we deem it appropriate to refer
the determination to the state court.
Dorchy v. Kansas,
supra, 264 U. S.
290-291. In order that the state court may be free to
consider the question and make proper disposition of it, the
judgment below should be set aside, since a dismissal of this
appeal might leave the judgment to be enforced as rendered.
Gulf, Col. & S. F. Ry. v. Dennis, supra, 224 U. S. 509.
The judgment is accordingly reversed, and the cause remanded for
further proceedings.
Reversed.