1. A statute, valid when enacted, may become invalid by change
in the conditions to which it is applied. P.
294 U. S.
414.
2. The police power is subject to the constitutional limitation
that it may not be exerted arbitrarily or unreasonably. P.
294 U. S.
415.
Page 294 U. S. 406
3. The power in a State to require a railroad company to bear
expenses of separating the grades of the railway and a new highway
at crossing is not absolute, but is subject to the due process
clause of the Fourteenth Amendment, and it does not exist in the
particular case if, upon the facts of that case, the exaction would
be unreasonable or arbitrary. P.
294 U. S.
413.
4. In resisting an imposition upon it, under a state statute, of
one-half the cost of an underpass to separate the grades of its
main line and a proposed new highway, the railway company adduced,
among other facts, that the highway was designed for high-speed
through motor traffic across the State, as part of the national
system of Federal-aid highways largely planned, financed, and
supervised by the Federal Government; that it had no local
significance; that, from the local standpoint, there was no need of
grade separation; that the underpass was prescribed not upon
consideration of local safety needs, but in conformity to general
plans of the federal and state highway engineers as being a proper
engineering feature in the construction of a nationwide system of
highways for high-speed motor vehicle transportation; that the
highway would be the greater source of danger; that, far from being
a feeder of railway traffic, it would add to the motor competition
from which the railway had already suffered severely, and that the
tax burden upon the railway was already excessive as compared with
that upon the owners of motor vehicles who would use the highway as
it competitors.
Held:
(1) That the State Supreme Court erred in not considering
whether the facts showed that the imposition was arbitrary and
unreasonable. Pp.
294 U. S. 415,
294 U. S.
428.
(2) This question should be determined in the first instance by
the state court. P.
294 U. S.
433.
(3) The state court should also decide whether findings of facts
were adequately supported by evidence.
Id.
5. When the scope of the police power is in question, the
special knowledge of local conditions possessed by the state
tribunals may be of great weight.
Id.
167 Tenn. 470, 71 S.W.2d 678, reversed.
Appeal from a judgment in a suit of the railway company brought
for the purpose of determining the constitutionality of an order,
and an underlying statute, requiring it to pay one-half of the
expense of obviating a grade crossing.
Page 294 U. S. 412
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
This suit, under the Uniform Declaratory Judgment Act of
Tennessee, [
Footnote 1] was
brought, on November 21, 1931, in the Chancery Court of Davidson
County, Part 1, by the Nashville, Chattanooga & St. Louis
Railway against the State Highway Commissioner and the Attorney
General. The purpose of the suit is to secure a determination of
the constitutionality of an order entered by the Commission and, as
so applied, of Chapter 132 of the Tennessee Public Acts of 1921,
upon which the order rests. [
Footnote 2] The statute authorizes the Commission,
whenever a state highway crosses a railroad, to require the
separation of grades if, in its discretion, "the elimination of any
such grade crossing is necessary for the protection of persons
traveling on any such highway or any such railroad," and, without
conferring upon the Commission any discretion as to the proportion
of the cost to be borne by the railroad, requires the latter to
pay, in every case, one-half of the total cost of the separation of
grades. The order requires the railway to construct an underpass so
as to separate grades where a proposed state highway will cross its
main line within the limits of the little town of Lexington, and to
bear one-half the cost thereof.
Page 294 U. S. 413
The railway does not question the power of the state to build
the proposed highway; nor its power to require the separation of
grades; nor the appropriateness of the plan adopted for such
separation; nor the reasonableness of the cost, $17,400. It does
not deny that, if the proposed highway is built, safety of travel
thereon and on the railroad will be promoted by separation of
grades. It concedes that, in Tennessee, as elsewhere, the rule has
long been settled that, ordinarily, the state may, under its police
power, impose upon a railroad the whole cost of eliminating a grade
crossing, or such part thereof, as it deems appropriate. [
Footnote 3] The claim of
unconstitutionality rests wholly upon the special facts here shown.
The main contention is that to impose upon the railway, under these
circumstances, one-half of the cost is action so arbitrary and
unreasonable as to deprive it of property without due process of
law in violation of the Fourteenth Amendment.
The bill of complaint sets forth in detail the facts relied upon
as showing that the action was arbitrary and unreasonable. The
answer justifies the imposition solely as an exercise of the police
power. Because many of the allegations
Page 294 U. S. 414
of the bill were denied, much evidence was introduced. That
contained in the printed record in this Court occupies, with
exhibits, 492 pages. The trial court found that, with one
exception, [
Footnote 4] the
evidence fully supported every averment of fact in the bill. It
held that the order and the statute as applied, is so far as they
require the railway to pay one-half the cost of the underpass, are
arbitrary and unreasonable, and that they are void. The decree
enjoined the Commissioner from attempting to enforce payment by the
railway; ordered that the entire cost of the project (except for
contributions by the federal government) be borne by the state
highway Commission, and directed the defendants to pay the costs of
the cause. Upon appeal, the Supreme Court of the state reversed
that decree, ordered the bill dismissed, and allowed an appeal to
this Court.
Nashville, C. & St.L. Ry. v. Baker, 167
Tenn. 470, 71 S.W.2d 678, 680. Consideration of the jurisdiction
thereof was ordered postponed to the hearing on the merits.
The Supreme Court declined to consider the special facts relied
upon as showing that the order, and the statute as applied, were
arbitrary and unreasonable, and did not pass upon the question
whether the evidence sustained those findings. It held that the
statute was, upon its face, constitutional; that, when it was
passed, the state had, in the exercise of its police power,
authority to impose upon railroads one-half of the cost of
eliminating existing or future grade crossings, and that the court
could not "any more" consider "whether the provisions of the act in
question have been rendered burdensome or unreasonable by changed
economic and transportation conditions" than it
Page 294 U. S. 415
"could consider changed mental attitudes to determine the
constitutionality or enforceability of a statute." A rule to the
contrary is settled by the decisions of this Court. A statute valid
as to one set of facts may be invalid as to another. [
Footnote 5] A statute valid when enacted may
become invalid by change in the conditions to which it is applied.
[
Footnote 6] The police power
is subject to the constitutional limitation that it may not be
exerted arbitrarily or unreasonably. [
Footnote 7] To this limitation, attention was specifically
called in cases which have applied most broadly the power to impose
upon railroads the cost of separation of grades.
Cincinnati, I.
& W. Ry. Co. v. Connersville, 218 U.
S. 336,
218 U. S. 344;
Chicago, M. & St.P. Ry. Co. v. Minneapolis,
232 U. S. 430,
232 U. S. 441;
Missouri Pacific Ry. Co. v. Omaha, 235 U.
S. 121,
235 U. S. 127;
Erie R. Co. v. Public Utility Commissioners, 254 U.
S. 394,
254 U. S.
409-410;
Lehigh Valley R. Co. v. Public Utility
Commissioners, 278 U. S. 24,
278 U. S. 34-35.
Compare Denver & Rio Grande R. Co. v. Denver,
250 U. S. 241,
250 U. S. 244;
Southern Ry. Co. Virginia, 290 U.
S. 190,
290 U. S.
196.
First. Unless the evidence and the special facts relied
upon were of such a nature that they could not conceivably
establish that the action of the state in imposing
Page 294 U. S. 416
upon the railway one-half of the cost of the underpass was
arbitrary and unreasonable, the Supreme Court obviously erred in
refusing to consider them. The charge of arbitrariness is based
primarily upon the revolutionary changes incident to transportation
wrought in recent years by the widespread introduction of motor
vehicles; the assumption by the federal government of the functions
of roadbuilder; the resulting depletion of rail revenues; the
change in the character, the construction, and the use of highways;
the change in the occasion for elimination of grade crossings, in
the purpose of such elimination, and in the chief beneficiaries
thereof, and the change in the relative responsibility of the
railroads and vehicles moving on the highways as elements of danger
and causes of accidents. The facts specifically found, or of which
the courts could take judicial notice, are these:
1. The decree of the trial court recites, as a finding upon the
evidence,
"that this underpass is a part of a statewide and nationwide
plan to foster commerce by motor vehicle on the public highways,
the result of which is to afford competition with railroads, and
that the decision to build this underpass, its location and
construction, was not in any proper sense an exercise of the police
power, but rather, as set forth in the bill of complaint, pursuant
to a general plan of internal improvement fostered by the Congress
of the United States in conjunction with the several States to make
a nationwide system of superhighways in the interest of interstate
commerce by motor vehicle, much of which is in active competition
with the railroads themselves; . . . that, in the interest of
commerce by motor vehicles on the public highways, this was a
proper engineering project, properly conceived, located, designed
and constructed;"
but
"that this underpass did not involve an exercise of the police
power any more than many other features of this project, such as
elimination of curves, grades, widening the pavement, et cetera.
"
Page 294 U. S. 417
2. The state highways of Tennessee (as distinguished from county
and city roads and turnpikes) have their origin in the federal aid
highway legislation. [
Footnote
8] The aim of that legislation is "a connected system of roads
for the whole Nation;" "to provide complete and economical highway
transport throughout the Nation;" to furnish "a new means of
transportation, no less important to the country as a whole than
that offered by the railroads;" [
Footnote 9] to establish "lines of motor traffic in
interstate commerce." [
Footnote
10] The immediate interest of the federal government is, in
part, the national defense, as well as the transportation of the
mails. [
Footnote 11] The
relief of the unemployment incident to the business depression has
been the main incentive for highway construction since April 4,
1930, the period in which the highway here in question was
undertaken and completed. [
Footnote 12]
To achieve its purposes, the federal government has made large
contributions to the cost of the federal aid highway system. In
each year, it has made to each state
Page 294 U. S. 418
grants in money, proportioned according to various factors, to
be expended in defraying up to one-half the cost of constructing
therein the designated highways. [
Footnote 13] In addition, it has, through the War
Department, allotted to the several states their
pro rata
shares of surplus war equipment and supplies valued at more than
$224,000,000. [
Footnote 14]
It has at all times given to the several states the benefit of its
economic and physical research, and other aid by its experts and
administrators. [
Footnote
15] It has, since the depression, given to the several states
emergency grants to be expended in highway construction for the
relief of
Page 294 U. S. 419
unemployment. [
Footnote
16] In the fiscal years ending June 30, 1931, 1932, and 1933,
during which this highway was authorized and completed, Tennessee
received from the federal government, for the highway system, in
cash, $11,063,325; [
Footnote
17] and at the close of that period practically the entire
expense of building federal aid roads in the state was being borne
by the federal government. [
Footnote 18]
The Secretary of Agriculture, acting through the Federal Bureau
of Public Roads, has determined in large measure not only the
location of the federal aid highways in the several states, but
also their character and
Page 294 U. S. 420
their incidents. Early legislation provided that:
"The Secretary of Agriculture and the State highway department
of each State shall agree upon the roads to be constructed therein
and the character and method of construction. [
Footnote 19]"
The Act of 1921 required each state to select and submit to the
Secretary, for approval as the object of future federal aid
expenditures, "a system of highways not to exceed 7 percentum of
the total highway mileage of such State;" the system was to
"be divided into two classes, one of which shall be known as
primary or interstate highways, . . . and the other which shall
connect or correlate therewith and be known as secondary or
intercounty highways. [
Footnote
20]"
Congress transferred to the Secretary the powers and duties in
relation to highways and highway transport originally conferred
upon the Council of National Defense. [
Footnote 21] The War Plans Division of the General
Staff and Corps of Engineers of the War Department promptly
cooperated with the Bureau of Public Roads "in a study the purpose
of which is the selection of those highways which are important
from a military standpoint." [
Footnote 22]
Upon the Secretary devolves the duty of prescribing needful
rules and regulations, including such recommendations as he might
deem necessary for "insuring the safety of traffic on the
highways." [
Footnote 23]
Both the federal aid legislation
Page 294 U. S. 421
and the regulations adopted thereunder encourage the elimination
of grade crossings. [
Footnote
24] The general principles adopted by the Bureau of Roads to be
applied where possible treat "all intersections of a railway and
highway at grade" as "a condition dangerous to traffic on the
highway -- which should not exist in a well designed and completed
system;" treat topographic conditions as having only an "incidental
bearing;" and refuse to treat "unobstructed view of the railway
track from the highway" as constituting a safe crossing. [
Footnote 25] The federal government
may pay one-half of the total cost of an underpass, even if the
state is relieved by contributions of the railroad or others from
paying the other half. [
Footnote
26]
3. Federal aid highways are designed so that motor vehicles may
move thereon at a speed commonly much greater than that of railroad
trains. [
Footnote 27] The
main purpose of grade separation, therefore, is now the furtherance
of
Page 294 U. S. 422
uninterrupted rapid movement by motor vehicles. In this respect,
grade separation is a desirable engineering feature comparable to
removal of grades and curves, to widening the highway, to
strengthening and draining it, to shortening distance, to setting
up guard rails, and to bridging streams. [
Footnote 28] The railroad has ceased to be the prime
instrument of danger and the main cause of accidents. [
Footnote 29]
Page 294 U. S. 423
It is the railroad which now requires protection from dangers
incident to motor transportation. Prior to the establishment of the
federal aid system, Tennessee highways were built under the
direction of the county courts, and paid for out of funds raised
locally by taxation or otherwise. [
Footnote 30] They served, in the main, local traffic. The
long distance traffic was served almost wholly by the railroads and
the water lines. Under those conditions, the occasion for
separation of grades was mainly the danger incident to rail
operations, and the promotion of safety was then the main purpose
of grade separation. Then, it was reasonable to impose upon the
railroad a large part of the cost of eliminating grade crossings,
and the imposition was rarely a hardship. For the need for
eliminating existing crossings, and the need of new highways free
from grade crossings, arose usually from the growth of the
community in which the grade separation was made; this growth was
mainly the result of the transportation facilities offered through
the railroad; the separation of grade crossings was a normal
incident of the growth of rail operations, and, as the highways
were then feeders of rail traffic, the community's growth and every
improvement of highway facilities benefited the railroad. The
effect upon the railroad of constructing federal aid highways like
that here in question is entirely different. They are not feeders
of rail traffic. They deplete the existing rail traffic and the
revenues of the railroads. Separation of grades serves to intensify
the motor competition and to further deplete rail traffic. The
avoidance thereby made possible
Page 294 U. S. 424
of traffic interruptions incident to crossing at grade are now
of far greater importance to the highway users than it is to the
railroad crossed. For the rail operations are few, those of motor
vehicles very numerous.
4. Lexington is a rural community of 1,823 inhabitants located
in a sparsely settled territory. The construction of the new
highway with the underpass was not designated to meet local
transportation needs. It was undertaken to serve as a link in a
nationwide system of highways. [
Footnote 31] State highway No. 20, as formerly routed,
passed through Lexington on Clifton Street, and crossed the
railroad at grade; it was adequate for the existing traffic and
that to be expected. The traffic on that highway was, and is,
small. The grade crossing has presented no serious interruption to
traffic. The trains are infrequent. Only six trains are operated
now each way in every twenty-four hours; five of these moving
between 10 p.m. and 6 a.m., when there is substantially no highway
travel. [
Footnote 32] The
grade crossing on the old route is protected by the most modern
electrical device. That the crossing is not dangerous is attested
by the fact that, during the ten years following January 1, 1921,
there were but two minor accidents, and these were settled for $50.
That the present facilities are deemed locally both safe and
adequate is attested by the fact that neither the city authorities
nor anyone else has suggested elimination of this grade crossing;
that the grade crossing is to remain
Page 294 U. S. 425
unchanged after the new highway is put into use, and that the
Clifton street route will continue to be used for the local
traffic. [
Footnote 33]
5. The underpass required is for a new and additional highway
over which state highway No. 20 is being rerouted, which will be a
part of a federal aid route between Nashville and Memphis, the best
route between those two cities, and which will connect at these
termini with highways extending into other states. This highway was
planned by the State Highway Department, acting in conjunction with
the Bureau of Public Roads of the federal government. It is part of
the secondary or intercounty system, but, because of the expected
traffic, the district engineer of the Bureau of Roads, in
recommending its approval, characterized it as a route of primary
importance. The underpass was prescribed not upon consideration of
local safety needs, but in conformity to general plans of the
federal and state highway engineers, as being a proper engineering
feature in the construction of a nationwide system of highways for
high-speed motor vehicle transportation, and because it is the
policy of the federal authorities to make the avoidance of grade
crossings a condition of a grant in aid of construction. The
requirement of the underpass, and the payment by the railway under
the 1921 Tennessee Act of one-half the cost of separating the
grades, are results of the federal aid legislation. Final payment
of federal aid on this project was conditioned upon commencement of
the construction of this underpass.
Page 294 U. S. 426
6. The new highway, paralleling lines of the railway and
intended for rapid moving motor vehicles, will, through competition
for both freight and passenger traffic, seriously decrease rail
traffic and deplete the railway's revenue and net earnings.
Practically all vehicles moving upon it will directly or indirectly
compete for traffic with the railway. [
Footnote 34] Busses will operate over the new highway
in regular scheduled movements in the same way as passenger trains.
Trucks, some of them 70 feet in length and many weighing with load
as much as 50,000 pounds, operated by common carriers, by contract
carrier, and by private concerns, will compete for the most
profitable classes of freight. The competition, besides reducing
the volume of traffic, will compel reduction of rates.
How disastrously such competition will affect the railway's
traffic and revenues is shown by its own experience since the state
commenced, with the aid of the federal government, a system of
highways paralleling the lines of the railway. The gross passenger
revenue fell from $5,661,011.08 in 1920 to $2,095,942.29 in 1930,
and to $1,139,238 in the first nine months of 1931. The railway
carried, in 1920, 4,385,630 revenue passengers; in 1930, only
680,347, and in the first nine months of 1931, only 370,445. The
railway's freight traffic experienced a similar decline. Of the
less than carload freight, more than two-thirds was diverted from
the railroads to motor trucks. In many
Page 294 U. S. 427
classes of carload traffic, similar decreases were experienced
by rail carriers. In 1921, the railroads brought into Nashville
5,689 cars of livestock; being 69.79% of the total. In 1930, they
brought in only 641 cars, being 21.24% of the total. That the
decrease in the railway's traffic was due mainly to increased motor
competition following the construction of the new highways appears
from the fact that the decrease began while general business was
active, and that, even in the years of economic depression, the
railway's freight traffic was practically constant in the
relatively few regions where its rail lines were not paralleled by
hard surfaced highways, and that traffic increased when highways
paralleling its lines were temporarily closed for reconstruction.
The reduction in traffic and depletion in revenues has been
particularly severe during the three years preceding 1933.
7. While the railway, the sufferer from the construction of the
new highway, is burdened with one-half the cost of the underpass,
the owners of trucks and busses and others who are beneficiaries of
its construction are immune from making any direct contribution
toward the cost. It is true that one-half of the cost is, by law,
to be borne by the highway fund of Tennessee (except insofar as it
may be covered by the federal aid), [
Footnote 35] and that the truck and bus owners and others
contribute as taxpayers to that fund. But, while nearly 28% of the
gross revenues of the railway is required annually to pay the state
and local taxes and the cost of maintaining the roadway acquired
and constructed at its own expense, the state commercial motor
carriers, which are supplied by the state with the roadway on which
they move, pay in
Page 294 U. S. 428
state and local taxes not more than 7% of their gross revenues.
The taxes laid upon truck and bus owners are clearly insufficient
to pay their fair share even of the cost and maintenance of the
highways which serve them. Motor vehicle taxes of all kinds,
ad
valorem, privilege, license plate, and others will not pay for
one-half of the annual expenditure in Tennessee for highways. The
balance is being paid in part by general property taxes, in part by
borrowing, and in part by the federal government . Of the
ad
valorem taxes paid by the railway to the state and the
political divisions thereof, about 20% is allocated directly to
roads, some of which are no longer feeders to its traffic, but
serve as highways for the traffic taken by its competitors. The
relative
pro rata tax burden laid upon common carriers by
motor vehicle is alleged to be one-fourth of that laid upon the
railroads. [
Footnote 36]
Second. The Supreme Court of Tennessee erred in
refusing to consider whether the facts relied upon by the railway
established as arbitrary and unreasonable the imposition upon it of
one-half the cost of the underpass. The promotion of public
convenience will not justify requiring of a railroad, any more than
of others, the expenditure of money unless it can be shown that a
duty to provide
Page 294 U. S. 429
the particular convenience rests upon it.
Missouri Pacific
Ry. Co. v. Nebraska, 164 U. S. 403;
Missouri Pacific Ry. Co. v. Nebraska, 217 U.
S. 196;
Great Northern Ry. Co. v. Minnesota,
238 U. S. 340;
Great Northern Ry. Co. v. Cahill, 253 U. S.
71. These were the authorities relied upon by this Court
in
Chicago, St.P., M. & O. Ry. Co. v. Holmberg,
282 U. S. 162,
282 U. S. 167,
where it held that to require a railroad to provide, at its own
expense, an underpass not primarily as a safety measure, but for
private convenience, was a denial of due process.
It is true that the police power embraces regulations designed
to promote public convenience or the general welfare, and not
merely those in the interest of public health, safety, and morals.
Chicago, B. & Q. R. Co. v. Illinois ex rel. Drainage
Commissioners, 200 U. S. 561,
200 U. S. 592.
And it was stipulated that:
"In the light of modern motor vehicular traffic, anything which
slows up that traffic is an inconvenience. In other words,
eliminating a grade crossing, as in the case at bar, facilitates
the speed of motor vehicular traffic, in accordance with public
demands."
But, when particular individuals are singled out to bear the
cost of advancing the public convenience, that imposition must bear
some reasonable relation to the evils to be eradicated or the
advantages to be secured.
Compare Hadacheck v. Sebastian,
239 U. S. 394;
Miller v. Schoene, 276 U. S. 272.
[
Footnote 37] While moneys
raised by general taxation may constitutionally be applied to
purposes from which the individual
Page 294 U. S. 430
taxed may receive no benefit, and indeed, suffer serious
detriment;
St. Louis & Southwestern Ry. Co. v. Nattin,
277 U. S. 157,
277 U. S. 159;
Memphis & Charleston Ry. Co. v. Pace, 282 U.
S. 241,
282 U. S. 246;
so-called assessments for public improvements laid upon particular
property owners are ordinarily constitutional only if based on
benefits received by them.
Myles Salt Co. v. Iberia Drainage
District, 239 U. S. 478;
Gast Realty Co. v. Schneider Granite Co., 240 U. S.
55;
Kansas City So. Ry. Co. v. Road Imp. Dist. No.
6, 256 U. S. 658.
It is also true that state action imposing upon a railroad the
cost of eliminating a dangerous grade crossing of an existing
street may be valid, although it appears that the improvement
benefits commercial highway users who make no contribution toward
its cost;
Chicago, B. & Q. R. Co. v. Nebraska,
170 U. S. 57,
170 U. S. 75;
Missouri Pacific Ry. Co. v. Omaha, 235 U.
S. 121; that a railroad has no constitutional immunity
from having to contribute to the cost of safeguarding a crossing
with another railway line merely because the first railroad was
built before the crossing was made;
Detroit, F.W. & B.I.
Ry. v. Osborn, 189 U. S. 383;
Northern Pacific Ry. Co. v. Puget Sound & Willipa Harbor
Ry. Co., 250 U. S. 332;
[
Footnote 38] and that the
state may, under some circumstances, impose upon a railroad the
cost of the grade separation for a new highway. But, in every case
in which this Court has sustained the imposition, the new highway
was an incident of the growth or development of the municipality in
which it was located.
Northern Pacific Ry. v. Duluth,
208 U. S. 583,
208 U. S. 592;
Cincinnati, I. & W. Ry. Co. v. Connersville,
218 U. S. 336;
Chicago, M. & St.P. Ry.
Co. v. Minneapolis,
Page 294 U. S. 431
232 U. S. 430;
Erie R. Co. v. Public Utility Commissioners, 254 U.
S. 394,
254 U. S. 409.
Compare Atlantic Coast Line v. Goldsboro, 232 U.
S. 548,
232 U. S. 554.
And in every such case, the municipality apparently bore the cost
of constructing the new highway for which grade separation was
required. [
Footnote 39]
Here were adduced, as tending to show that it was arbitrary and
unreasonable to impose upon the railway one-half the cost of this
underpass, not only the revolution wrought by motor vehicle
transportation and the creation and purposes of the federal aid
highway system, but also the local conditions at Lexington; the
character of the place where the underpass was ordered built; the
extent of the railroad operations there; the character of the
existing highway facilities, and of their use at that point; the
location of the proposed highway; the occasion for its
construction; the use contemplated; the reason why the underpass
was ordered; the depletion of the railway's revenues resulting from
the construction of federal aided highways, particularly in recent
years; the necessary effect of this new highway upon its rail
traffic and revenues, and the burden of taxation already borne by
the railway as compared with that of the owners of the motor
vehicles who will use the new highway. No case involving like
conditions has been found in any of the lower federal courts, nor,
excepting the case here under review, has any such been found among
the decisions of the highest courts of any state. [
Footnote 40]
Page 294 U. S. 432
The Supreme Court of Tennessee did not consider whether, in view
of the facts relied upon, it was arbitrary and unreasonable to
impose upon the railway one-half the cost of the underpass. It
assumed that the state action was valid because it found that the
action was taken
"to promote the safety of persons traveling the highways at
grade crossings as well as to promote the safety of persons
traveling the railroads at such crossings by eliminating dangerous
grade crossings,"
and added:
"Admitting the insistence of complainant that the primary object
of highway construction and the object of Federal contribution to
highways is to invite and stimulate interstate traffic or travel
upon the highways, it does not follow that the State roads are not
primarily designed to serve the people of the State."
Third. We have no occasion to consider now whether the
facts presented by the railway were of such persuasiveness as to
have required the state court to hold
Page 294 U. S. 433
that the statute and order complained of are arbitrary and
unreasonable. That determination should, in the first instance, be
made by the Supreme Court of the state.
Compare Sioux City
Bridge Co. v. Dakota County, 260 U. S. 441,
260 U. S. 447;
Chastleton Corp. v. Sinclair, 264 U.
S. 543,
264 U. S.
548-549;
Twist v. Prairie Oil & Gas Co.,
274 U. S. 684,
274 U. S. 692;
Grant v. A. B. Leach & Co., 280 U.
S. 351,
280 U. S. 363.
[
Footnote 41] Moreover,
since that court held the facts relied upon to be without legal
significance, it did not inquire whether the findings were
adequately supported by the evidence introduced in the trial court.
The correctness of some of the findings is controverted by the
state. Other facts of importance bearing upon the issue may
possibly be deducible from the evidence, or be within the judicial
knowledge of that court. When the scope of the police power is in
question, the special knowledge of local conditions possessed by
the state tribunals may be of great weight.
Compare Welch v.
Swasey, 214 U. S. 91,
214 U. S.
105-106;
Laurel Hill Cemetery v. San Francisco,
216 U. S. 358,
216 U. S.
365.
We have also no occasion to consider whether the railway should
bear a proportion of the cost of the underpass less than one-half.
The propriety of a lesser charge was not, and could not have been,
considered by the Commission, and it was not considered by either
of the lower courts. It was conceded by counsel for the state that
the only questions now reviewable are the validity of the statute
which compelled the state highway Commission to impose upon the
railway one-half of the cost, and the
Page 294 U. S. 434
validity of the order made thereunder.
Compare Village of
Norwood v. Baker, 172 U. S. 269,
172 U. S.
290-294;
Schneider Granite Co. v. Gast Realty &
Inv. Co., 245 U. S. 288;
Thomas v. Kansas City Southern Ry. Co., 261 U.
S. 481;
Road Imp. Dist. No. 1 v. Missouri Pacific R.
Co., 274 U. S. 188;
Rowley v. Chicago & Northwestern Ry. Co., 293 U.
S. 102,
293 U. S. 112.
Nor is it necessary to consider the contentions of the railway
that the state action here challenged, taken in conjunction with
the burdens of taxation and systems of regulation to which the
railroads and their competitors are subject, amounts to a denial of
equal protection of the laws, and that it discriminates against,
and imposes a burden upon, interstate commerce.
The judgment of the Supreme Court of Tennessee is reversed, and
the cause is remanded to it for further proceedings not
inconsistent with this opinion.
Reversed.
MR. JUSTICE STONE and MR. JUSTICE CARDOZO are of the opinion
that there is nothing in the evidence or special facts relied on by
the appellant to sustain a finding of arbitrary action by the State
of Tennessee or its official representatives; that, on the
contrary, the separation of grades is conceded to be necessary to
give protection to travelers against perils created by the
railroad; that a decision correct in result may not properly be
reversed because the reasoning of the opinion is inadequate or
erroneous, and that, upon the facts stated in the record as well as
upon any others within the range of judicial notice the appellant
has failed to sustain the burden of establishing a violation of its
constitutional immunities, and the decree should be affirmed.
MR. JUSTICE McREYNOLDS took no part in the consideration or
decision of this case.
[
Footnote 1]
Pub. Acts of Tennessee,1923, c. 29.
[
Footnote 2]
Public Acts of Tennessee, 1921, c. 132, entitled "An Act to
provide for the elimination of grade crossings on State Highways;"
amended 1923, c. 35; 1925, c. 88.
[
Footnote 3]
See Dyer County v. Railroad, 87 Tenn. 712, 11 S.W. 943;
Harriman v. Southern Ry. Co., 111 Tenn. 538, 82 S.W. 213;
Chattanooga v. Southern Ry. Co., 128 Tenn. 399, 161 S.W.
1000;
Nashville, C. & St.L. Ry. v. Drainage District,
149 Tenn. 490, 491, 261 S.W. 975. Exertion of the power was
sustained by this Court in the following cases:
New York &
New England R. Co. v. Bristol, 151 U.
S. 556;
Cincinnati, I. & W. Ry. v.
Connersville, 218 U. S. 336;
Chicago, M. & St.P. Ry. Co. v. Minneapolis,
232 U. S. 430;
Missouri Pacific Ry. Co. v. Omaha, 235 U.
S. 121;
Erie R. Co. v. Public Utility
Commissioners, 254 U. S. 394;
Lehigh Valley R. Co. v. Public Utility Commissioners,
278 U. S. 24.
Compare Chicago, B. & Q. Ry. Co. v. Illinois,
200 U. S. 561;
Lake Shore & Michigan Southern Ry. Co. v. Clouth,
242 U. S. 375;
Missouri, K. & T. Ry. Co. v. Oklahoma, 271 U.
S. 303;
Missouri ex rel. Wabash Railway Co. v.
Public Service Comm'n, 273 U. S. 126;
Nashville, C. & St.L. Ry. Co. v. White, 278 U.
S. 456;
New Orleans Public Service Co. v. New
Orleans, 281 U. S. 682.
[
Footnote 4]
It was alleged in the bill that the construction of the
underpass was unnecessary. The decree recites:
"The court finds from the evidence that there are no facts to
sustain this averment, and that, in the interest of commerce by
motor vehicle on the public highways, this was a proper engineering
project, properly conceived, located, designed, and
constructed."
[
Footnote 5]
Kansas City Southern Ry. Co. v. Anderson, 233 U.
S. 325;
Poindexter v. Greenhow, 114 U.
S. 270,
114 U. S. 295,
114 U. S. 330.
Compare Dahnke-Walker Milling Co. v. Bondurant,
257 U. S. 282,
257 U. S. 289;
Withnell v. Ruecking Construction Co., 249 U. S.
63,
249 U. S. 71;
Chicago, T.H. & S.E. Ry. Co. v. Anderson, 242 U.
S. 283.
[
Footnote 6]
Abie State Bank v. Weaver, 282 U.
S. 765,
282 U. S. 772;
Chastleton Corp. v. Sinclair, 264 U.
S. 543,
264 U. S. 547;
Perring v. United States, 232 U.
S. 478,
232 U. S. 487.
Compare Missouri Pacific R. Co. v. Norwood, 283 U.
S. 249.
[
Footnote 7]
Washington ex rel. Seattle Title Trust Co. v. Roberge,
278 U. S. 116;
Nectow v. Cambridge, 277 U. S. 183;
Delaware, L. & W. R. Co. v. Morristown, 276 U.
S. 182;
Pennsylvania Coal Co. v. Mahon,
260 U. S. 393;
Eubank v. Richmond, 226 U. S. 137;
Dobbins v. Los Angeles, 195 U. S. 223;
Lake Shore & M.S. Ry. Co. v. Smith, 173 U.
S. 684;
see too McLean v. Arkansas,
211 U. S. 539,
211 U. S. 547;
Lawton v. Steele, 152 U. S. 133,
152 U. S.
137-138.
[
Footnote 8]
It was largely in anticipation of federal aid legislation that
the State Highway Commission of Tennessee was created in 1915.
Report of the Commissioner, Tenn. Dep't of Highways and Public
Works (1926), p. 14; Public Acts Tenn.1915, c. 100, §§ 8, 9.
[
Footnote 9]
Report of Chief of (Federal) Bureau of Public Roads for the year
ending June 30, 1922, pp. 1, 5.
See also Report for year
ending June 30, 1923, p. 3.
[
Footnote 10]
First Message of President Harding to Congress, April 12,
1921.
[
Footnote 11]
See Conference Report on
"Bill to provide that . . . the Secretary of Agriculture on
behalf of the United States, shall, in certain cases, aid the
States in the construction, improvement, and maintenance of roads
which may be used in the transportation of interstate commerce,
military supplies or postal matter."
June 16, 1916, Sen.Doc. No. 474, 64th Cong., 1st Sess.
See
too House Rep. No. 26, 64th Cong., 1st Sess. (1916) p. 4;
Sen.Rep. No. 134, 67th Cong., 1st Sess. (1921), p. 1.
Compare Coordination of Motor Transportation, 182 I.C.C.
263, 366 (1932).
[
Footnote 12]
Reports of Chief of Bureau of Public Roads (1931) pp. 2-7;
(1932) pp. 1-3; (1933) pp. 1-4; (1934) pp. 1-5.
[
Footnote 13]
Act July 11, 1916, c. 241, §§ 3, 6, 39 Stat. 355; Act Feb. 28,
1919, c. 69, § 6, 40 Stat. 1201; Act Nov. 9, 1921, c. 119, §§ 11,
20, 42 Stat. 212; Act June 19, 1922, c. 227, § 4, 42 Stat. 660; Act
Feb. 12, 1925, c. 219, § 1, 43 Stat. 889; Act June 22, 1926, c.
648, § 1, 44 Stat. 760; Act May 26, 1928, c. 755, § 1, 45 Stat.
750; Act April 4, 1930, c. 105, §§ 1, 2, 46 Stat. 141; Act June 18,
1934, c. 586, § 4, 48 Stat. 993.
[
Footnote 14]
See Reports of Chief of Bureau of Public Roads (1920)
p. 25; (1922) p. 29; (1923) p. 27; (1927) p. 1.
[
Footnote 15]
The research was instituted by the Department of Agriculture,
October 3, 1893, and has been pursued continuously since.
See Report of the Special Agent and Engineer for Road
Inquiry for 1896, p. 145; Reports of the Director of Office of Road
Inquiries from 1897-1904; Reports of Director of Office of Public
Roads, 1905-1918; Reports of Chief of Bureau of Public Roads,
1918-1934.
[
Footnote 16]
The Act of 1928 appropriated for each of the fiscal years ending
June 30, 1930 and 1931, $75,000,000. The Act of 1930 appropriated
for each of the fiscal years ending June 30, 1932 and 1933,
$125,000,000. The Act of December 20, 1930, c.19, 46 Stat. 1030, in
order "to provide for emergency construction . . . with a view to
increasing employment," appropriated $80,000,000, "as a temporary
advance of funds to meet the provisions of [the Federal Highway]
Act as to State funds required on Federal-aid projects." By the
Emergency Relief and Construction Act of July 21, 1932, c. 520,
title 3, § 301(a), 47 Stat. 709, 716, a similar "temporary advance"
of $120,000,000, was made
"for the purpose of providing for emergency construction . . .
with a view to increasing employment and carrying out the policy
declared in the Employment Stabilization Act of 1931."
By the National Industrial Recovery Act of June 16, 1933, c. 90,
Title OO, § 204(a), 48 Stat. 195,
"the President is authorized to make grants to the highway
departments of the several States in an amount not less than
$400,000,000, to be expended by such departments in accordance with
the provisions of the Federal Highway Act."
By the Act of June 18, 1934, c. 586, 48 Stat. 993, "for the
purpose of increasing employment by providing for emergency
construction of public highways," there was appropriated the
further sum of $200,000,000, to be similarly expended. Section 14
of the same Act provides:
"No deductions shall hereafter be made on account of prior
advances and/or loans to the States for the construction of roads
under the requirements of the Federal Aid Highway Act or on account
of amounts paid under the provisions of Title I of the Emergency
Relief and Construction Act of 1932 for furnishing relief and work
relief to needy and distressed people."
[
Footnote 17]
See Reports of Chief of Bureau of Public Roads (1931)
pp. 34, 55; (1932) pp. 2, 29; (1933) pp. 2, 31.
[
Footnote 18]
Estimated cost of federal aid roads under construction in
Tennessee on June 30, 1933, totaled $4,645,392, of which $2,321,975
was to be defrayed with federal aid money, and $2, 166,751 with
federal emergency construction funds.
Id., p. 14, Table
15.
See too Report of State Highway Commissioner of
Tennessee for biennium ending June 30, 1934, pp. 206, 207, Table
No. 29, showing disbursements on federal aid projects, July 1,
1932, to June 30, 1933, totaling $5,473,229, and receipts from
United States government on those projects of $4,018,219.
[
Footnote 19]
Act July 11, 1916, c. 241, § 1, 39 Stat. 355.
[
Footnote 20]
Act November 9, 1921, c. 119, § 6, 42 Stat. 212. On June 30,
1934, the total mileage of the designated federal aid highway
system in Tennessee was 3,982, of which 1,925.1 had been improved
with federal aid. Report of Chief Bureau of Public Roads, September
1, 1934, p. 18. The mileage of the official state highway system,
including the federal aid system, is 7,247.3. Report of State
Highway Commissioner of Tennessee, January 5, 1935, p. 102, Table
No. 1.
[
Footnote 21]
Act November 9, 1921, c. 119, § 3, 42 Stat. 212.
[
Footnote 22]
Report of Chief of Bureau of Public Roads, October 15, 1920, p.
7.
[
Footnote 23]
Act November 9, 1921, c. 119, § 18, 42 Stat. 212.
[
Footnote 24]
By the Act of June 19, 1922, c. 227, § 4, par. 3, 42 Stat. 660,
"railroad grade separations, whether by means of overhead or
underpass crossings," are classed with "bridges," and are thus
excepted from the limitations placed upon amount of federal aid
which may be expended upon each mile of roadway. Act of July 11,
1916, c. 241, § 6, 39 Stat. 355; Act of February 28, 1919, c. 69, §
5, 40 Stat. 1201; Act of April 4, 1930, c. 105, § 3, 46 Stat. 141.
Section 8 of Regulation 6, of Rules and Regulations for Carrying
Out the Federal Highway Act (approved July 22, 1922) provides:
"Grade crossings occurring in the Federal aid highway system
shall be classified for priority of improvement by agreement
between the state highway departments and the Bureau of Public
Roads."
See too Report of Chief of Bureau of Public Roads
(1924), p. 7.
[
Footnote 25]
General Memorandum of the Bureau of Public Roads, No. 13, July
5, 1922.
[
Footnote 26]
Compare Act June 19, 1922, c. 227, § 4, par. 3, 42
Stat. 660; Opinion of Solicitor of Bureau of Public Roads, July 24,
1922.
[
Footnote 27]
In Tennessee, prior to 1925, the maximum permissive speed on
public highways was 20 miles an hour. Public Acts of Tennessee,
1905, c. 173. By Pub. Acts 1925, c. 132, the maximum was increased
to 30 miles. By Act of 1931, c. 82, all restrictions on speed were
eliminated. The speed of motor vehicles is now often more than 75
miles.
Compare note (1933) 46 Harv.L.Rev. 838.
Prior to 1931, vehicles approaching railroad grade crossings
were ordinarily required to come to a full stop at some point not
less than 10 nor more than 50 feet from the railroad tracks. Public
Acts of Tennessee, 1917, c. 36. By Act of 1931, c. 82, vehicles are
not required to slow up or stop on approaching railroad grade
crossings unless there is a positive signal of the immediate
approach of a train or cut of cars, or when the state highway
department designates a particular crossing as dangerous. Neither
the existing nor the proposed crossing at Lexington has been so
designated.
Compare Baltimore & Ohio R. Co. v.
Goodman, 275 U. S. 66;
Pokora v. Wabash Ry. Co., 292 U. S.
98.
[
Footnote 28]
Compare Report of Chief of Bureau of Public Roads
(1929) p. 10:
"On all roads, and especially the important routes included in
the Federal aid system, solution of the problems raised by the
increased traffic is not provided merely by building of higher
types of surfaces. A general widening of the surfaces is also
required, and, in view of the greater speeds now customary and
legally permissible, the easing and super-elevation of curves, the
cutting away of banks which obscure vision, and other improvements
in detail which contribute to safety. The elimination of dangerous
grade crossings is an expensive but urgently required improvement,
and, on densely traveled roads, it is already desirable to separate
the grades of intersecting highways."
See too Fisher, Connecticut's Regulation of Grade
Crossing Elimination, Journal of Land & Public Utility
Economics (1931) 367, 385.
[
Footnote 29]
Accidents caused by motor vehicles running into trains amounted
in 1928 to 22% of the total of grade crossing accidents; in 1929,
to 24%; in 1930, to 26.5%; in 1931, to 28.6%; in 1932, to 30.6%,
and in 1933, to 31.3%. Interstate Commerce Commission Accident
Bulletins, Nos. 97-102, Table 78. Of the fatalities in automobile
accidents in the United States during 1934, 3.3% resulted from
collision with railroad trains; of the persons injured, only
one-half of 1% (.5%) were injured in such collisions.
See
pamphlet entitled "Thou Shalt Not Kill," p. 5, issued by the
Travelers' Insurance Co., February, 1935.
[
Footnote 30]
Report of the Commissioner, Tenn. Dept. of Highways and Public
Works (1926) p. 13. In 1915, there were 19,668 automobiles in
Tennessee; in 1930, 368,259.
[
Footnote 31]
The old Highway No. 20, from Perryville, on the Tennessee River,
to Lexington is a winding gravel road which passes through several
towns and crosses the railway eight times at grade. The new route
is a comparatively straight paved road crossing the river a short
distance above Perryville, avoiding some of the towns served by the
old road, and crossing the railway only at the Lexington
underpass.
[
Footnote 32]
At the beginning of the suit, the railway was operating seven
trains every twenty-four hours.
[
Footnote 33]
On February 16, 1933, while this suit was still in progress in
the trial court, the new Route No. 20, between Perryville and
Lexington, was opened to traffic, although a part of the Highway
No. 100, connecting Route 20 with Nashville, was not yet paved. A
witness for the railroad testified that traffic counts, taken on
May 2 and 3, 1933, at the old Clifton Street crossing and at the
new underpass, which is on the outskirts of the town, indicated
that the underpass was then diverting only 20% of the traffic from
the grade crossing.
[
Footnote 34]
The report of the District Engineer of the Bureau of Public
Roads states:
"When the Nashville to Linden connection is completed and the
balance of this route to Jackson paved, it is expected that a large
percentage of the traffic now using State Route No. 1, between
Nashville and Jackson, will be diverted to this route, and it is
confidently expected that several thousand vehicles will be using
the route in the near future."
The railway introduced in evidence traffic counts on Route 1
showing the weekday foreign traffic amounting to 13% and 23% of the
total motor vehicle traffic, and truck and bus traffic amounting to
16% and 19% of the total.
[
Footnote 35]
The acting chief of the Bureau of Public Roads stated, in reply
to a letter of the railway's counsel, that he knew of no reason why
the federal government would not, upon proper request, pay one-half
of the cost of the underpass if it conformed to the Bureau's
requirements.
[
Footnote 36]
The principal taxes paid by motor vehicle owners in Tennessee
are the registration fees and gasoline taxes, the proceeds of which
are used mainly for highway purposes.
See Reports of State
Highway Commissioner (1932) pp. 27, 32-33, 241, 285; (1934) pp. 22,
23, 199, 221. Besides these, the state levies a mileage tax upon
commercial vehicles. Mileage taxes collected from intrastate
operators go into the general state funds; those collected from
interstate operators, into the highway fund. In 1932, it was
testified, this tax yielded a gross revenue of approximately
$100,000, and a net revenue of $40,000 for the general fund, and
$18,000 for the highway fund. The
ad valorem taxes paid by
common carrier motor vehicles are negligible. In 44 of the richest
counties, they aggregated, in 1928, $1,371.97; in 1929, $1,714.01;
in 1930, $1,185.04.
[
Footnote 37]
Early cases establishing the rule that the entire cost of a
grade separation may be imposed upon the railroad perhaps reflect
the attitude that "the business of railways is specially
dangerous,"
Thorpe v. Rutland & Burlington R. Co., 27
Vt. 140, 150, and that "crossing highways and running locomotives,
were they not authorized by law, would be nuisances." Mr. Justice
Strong, dissenting in
Northwestern Fertilizing Co. v. Hyde
Park, 97 U. S. 659,
97 U. S. 679.
Compare Woodruff v. Catlin, 54 Conn. 277, 295, 6 A.
849.
[
Footnote 38]
By some state courts, a different rule has been applied,
particularly as to the original cost of the crossing.
Toledo,
A.A. & N.M. R. Co. v. Detroit, L. & N. R.. Co., 62
Mich. 564, 573, 29 N.W. 500;
see State ex rel. Northern Pacific
Ry. Co. v. Railroad Comm'n, 140 Wis. 145, 160, 161, 121 N.W.
919.
[
Footnote 39]
In
Lehigh Valley R. Co. v. Public Utility
Commissioners, 278 U. S. 24, the
crossing was over a state highway, which had originally been an
"ancient county road, laid out in 1811." In
Chicago, M. &
St.P. Ry. Co. v. Minneapolis, 232 U.
S. 430, the canal and footpath to be crossed were part
of a park development.
[
Footnote 40]
In the following cases, among others, decided since the Federal
Aid Highway Act of 1921, orders of state Commissions directing
railroads to pay the whole, or part, of the cost of grade
separation on modern state highways -- in several instances,
federal aid highways -- were unsuccessfully challenged as
unconstitutional under the particular circumstances, but in none of
them, so far as appears, was the charge of arbitrariness supported
on a record embodying facts similar to those presented above.
Chicago, N.S. & M. R. Co. v. Illinois Commerce
Commission, 354 Ill. 58, 188 N.E. 177 (1933);
Gulf, C.
& S.F. R. Co. v. Louisiana Public Service Comm'n, 151 La.
635, 92 So. 143 (1922);
New Orleans & Northeastern R. Co.
v. State Highway Comm'n, 164 Miss. 343, 144 So. 558 (1932);
Chicago, R.I. & P. Ry. Co. v. Public Service Comm'n,
315 Mo. 1108, 287 S.W. 617 (1926);
State ex rel. v. Public
Service Comm'n, 297 S.W. 47;
State ex rel. v. Public
Service Comm'n, 62 S.W.2d 1090;
State ex rel. v. Public
Service Comm'n, 68 S.W.2d 691;
State ex rel. v. Public
Service Comm'n, 70 S.W.2d 52, 55, 57, 61;
State ex rel. v.
Public Service Comm'n, 72 S.W.2d 101;
North Dakota State
Highway Comm'n v. Great Northern Ry., 51 N.D. 680, 200 N.W.
796;
Chicago, M. & St.P. Ry. Co. v. Railroad Comm'n,
187 Wis. 364, 204 N.W. 606.
[
Footnote 41]
See too McCandless v. Furlaud, 293 U. S.
67;
Missouri ex rel. Wabash Railway Co. v. Public
Service Comm'n, 273 U. S. 126,
273 U. S. 131;
Hammond v. Schappi Bus Line, 275 U.
S. 164,
275 U. S.
169-172;
Hammond v. Farina Bus Line,
275 U. S. 173,
275 U. S.
174-175;
United States v. Brims, 272 U.
S. 549,
272 U. S. 553;
Gerdes v. Lustgarten, 266 U. S. 321,
266 U. S. 327;
Brown v. Fletcher, 237 U. S. 583,
237 U. S.
586-588;
Wilson Cypress Co. v. Del Pozo,
236 U. S. 635,
236 U. S.
656-657.