In an action for damages under the statute of Missouri requiring
owners of railroads to maintain ditches along the right-of-way as
amended in 1907 so as to require outlets for water across the
rights-of-way and imposing liability and penalties for
noncompliance within three months after completion and where the
embankment causing damage had been erected more than three months
prior to the amendment of 1907,
held that:
The amendment to the statute was not an
ex post facto
law; it did not penalize the railroad company for the manner in
which it originally built the embankment prior to the amendment,
but for the manner in which it maintained it subsequently
thereto.
The time limit should properly be construed as relating to
railroads
Page 238 U. S. 68
erected after the passage of the act, and that, as to those
already constructed, reasonable time should be allowed.
It is not necessary for this Court to determine what is a
reasonable time for compliance with a police regulation when that
question is raised by one refusing compliance not on that ground,
but on the ground that the legislature had no power to enact the
statute.
Even though the charter be irrepealable, common law rules
existing at the time the charter was granted are not so imported
into the contract of the charter as to cause such contract to be
impaired by subsequent enactment of proper police regulations.
No person has a vested right in any general rule of law or
policy of legislation entitling him to insist upon its remaining
unchanged for his benefit, nor is immunity from change of general
rules of law to be implied as an unexpressed term of an express
contract.
The police power of the state cannot be abdicated nor bargained
away, is inalienable even by express grant, and all contract and
property rights are held subject to its fair exercise; it embraces
regulations designed to promote public convenience or general
welfare as well as those in the interest of the public health,
morals or safety.
A statute requiring owners of a railroad to provide means for
passing water under embankments is a legitimate exercise of the
police power, and not a taking of their property without
compensation. It amounts merely to an application of the maxim
sic utere tuo ut alienum non laedas.
The enforcement of uncompensated obedience to legitimate police
regulation is not a taking of property without compensation or
without due process of law in the sense of the Fourteenth
Amendment.
Although water may, under common law rules, be a common enemy to
all property, embankments of railroads, stretching across tracts of
land that are liable to injury from surface water, differ from
other constructions sufficiently to afford a substantial ground for
classification, and a statute otherwise legal is not
unconstitutional under the equal protection provision of the
Fourteenth Amendment because it applies exclusively to railroad
embankments, whether the road be owned by individuals or
corporations.
250 Mo. 46 affirmed.
The facts, which involve the constitutionality under the due
process and impairment of contract provisions of the federal
Constitution of a statute of Missouri requiring owners of railroads
to afford outlets for water across their rights of way, are stated
in the opinion.
Page 238 U. S. 70
MR. JUSTICE PITNEY delivered the opinion of the Court.
Tranbarger, owner of 60 acres of farming land in Callaway
County, Missouri, brought this action against the railroad company
in a Missouri state court to recover damages and a penalty under §
1110 of the Missouri Revised Statutes of 1899, as amended by act of
March 14, 1907, Sess.Acts, p. 169, of which the portion now
pertinent is as follows:
Page 238 U. S. 71
"It shall be the duty of every corporation, company, or person
owning or operating any railroad or branch thereof in this state,
and of any corporation, company, or person constructing any
railroad in this state, within three months after the completion of
the same through any county in this state, to cause to be
constructed and maintained suitable openings across and through the
right of way and roadbed of such railroad, and suitable ditches and
drains along each side of the roadbed of such railroad, to connect
with ditches, drains, or water courses, so as to afford sufficient
outlet to drain and carry off the water, including surface water,
along such railroad whenever the draining of such water has been
obstructed or rendered necessary by the construction of such
railroad, . . . and any corporation, company or person failing to
comply with the provisions of this section shall incur a penalty
not to exceed $500, and be liable for all damages done by said
neglect of duty."
A judgment for damages and a penalty of $100 was sustained by
the supreme court of the state (250 Mo. 46), and the case comes
here upon questions respecting the validity of the statute, as
construed and applied, in view of familiar provisions of the
federal Constitution.
The facts found by the Missouri Supreme Court to be within the
pleadings and proofs, and to be sustained by the verdict of the
jury, are these: plaintiff's lands lie in what are known as the
Missouri River bottoms. It is the habit of that river to overflow
the bottoms from the west to the east in times of high water.
Defendant's railroad extends across the bottoms from southwest to
northeast, and along the easterly boundary of plaintiff's land. The
roadbed is constructed of a solid earth embankment, varying in
height from 4 to 7 feet, and is not provided with transverse
culverts, openings, or drains of any kind for the escape of surface
water, but constitutes a solid barrier
Page 238 U. S. 72
for collecting such waters, and causes them to back over and
flood plaintiff's lands, which would not be overflowed except for
that obstruction. The road was maintained in this condition for
more than three months before a stated day in June, 1908, when the
river overflowed its banks and the water ran across the bottoms
until it reached the railroad embankment, which repelled it, so
that it backed over, upon, and flooded plaintiff's land, causing
substantial damage, which was attributable solely to the negligent
failure of defendant to construct suitable openings across and
through the solid embankment upon which its railroad tracks were
laid, and suitable ditches and drains along the side of the
roadbed, to connect with an existing ditch which would have
afforded an outlet into the river or elsewhere without flooding
plaintiff's land. It further appears from undisputed evidence cited
in the brief of plaintiff in error that the railroad was
constructed about the year 1872, and originally was carried by a
trestle for a distance of 20 to 25 feet over a certain low spot in
the river bottom, but that this opening was filled in about the
year 1895, since which time the railroad bed has been maintained as
a solid embankment across the bottom.
The statutory requirement of "openings across and through the
right of way and roadbed" originated in the 1907 amendment of §
1110. Before that, and dating from the year 1874, the statute
merely required railroads to construct ditches along each side of
the roadbed. Laws 1874, p. 121; Rev.Stat. 1879, § 810; Laws 1883,
p. 50; Rev.Stat. 1889, § 2614; Laws 1891, p. 82; Rev.Stat. 1899, §
1110;
Collier v. Chicago & Alton Ry. (1892), 48
Mo.App. 398, 402;
Kenney v. Kansas City &c. R. Co.
(1897), 69 Mo.App. 569, 571. It is upon the clause added in 1907
that the present action is founded, and upon that clause the
questions before us are raised. It is attacked as an
ex post
facto law, as a law impairing the obligation of the contract
between the state and the railroad company,
Page 238 U. S. 73
and as repugnant to the "due process" and "equal protection"
provisions of the Fourteenth Amendment.
(1) The argument that, in respect of its penalty feature, the
statute is invalid as an
ex post facto law is sufficiently
answered by pointing out that plaintiff in error is subjected to a
penalty not because of the manner in which it originally
constructed its railroad embankment, nor for anything else done or
omitted before the passage of the Act of 1907, but because, after
that time, it maintained the embankment in a manner prohibited by
that act. The argument to the contrary is based upon a reading of
the section that applies the limiting clause "within three months
after the completion of the same" to railroads already in existence
as well as to those to be constructed thereafter. The result is,
according to the argument, that, as the road of plaintiff in error
was constructed upon a solid embankment at least as early as the
year 1895, the act was violated as soon as enacted. This
construction is so unreasonable that we should not adopt it unless
required to do so by a decision of the state court of last resort.
The language of the section as it now stands:
"It shall be the duty of every corporation . . . owning or
operating any railroad or branch thereof in this state, and of any
corporation . . . constructing any railroad in this state, within
three months after the completion of the same through any county in
this state, to cause to be constructed and maintained suitable
openings,"
etc., seems to us to be more reasonably construed as prescribing
the express limit of three months only with respect to railroads
afterwards constructed, and as allowing to railroads already in
existence a reasonable time after the passage of the enactment
within which to construct the openings. In adopting this meaning,
we have regard not merely to the phrases employed, but to the
previous course of legislation, which is set forth in the briefs,
but need not be here repeated. Whether we are
Page 238 U. S. 74
right or wrong about this, the duty to construct transverse
outlets having originated with the Act of 1907, the statute is, of
course, to be construed as allowing some time -- either three
months, or a reasonable time more or less than that period -- for
their construction by railroads already in existence. The law had
been upon the statute books for more than a year before the flood
that gave rise to this action. Whether three months or a year was a
reasonable time, or whether more time would reasonably be required
for the construction of the prescribed opening across the railroad
of plaintiff in error at the place in question, is a matter that we
need not determine, since no such issue was raised in the state
courts, plaintiff in error having contented itself with asserting
that the legislature had no power to require it at any time after
the Act of 1907 to construct such an opening.
(2) Upon the question of impairment of contract, it appears that
the railroad in question was constructed and afterwards leased to
plaintiff in error in perpetuity by virtue of a charter and
franchise granted to the Louisiana & Missouri River Railroad
Company in the year 1870 (Laws, p. 93, §§ 22, 23, 43), by § 33 of
which the company was exempted from the provisions of § 7 of
Article I. of the General Corporation Act of 1855 (Rev.Stat. 1855,
p. 371), and thereby, it is claimed, relieved from the legislative
power of alteration, suspension, and repeal. And while by the
Constitution of 1865 (in force at the time the railroad in question
was authorized and constructed), railroad corporations could be
formed only under general laws subject to amendment or repeal, it
is contended that this did not apply to subsequent amendments of
charters previously granted (
State ex Rel. Circuit Attorney v.
Railroad, 48 Mo. 468;
St. Joseph & Iowa Ry. v.
Shambaugh, 106 Mo. 557, 569), and it is pointed out that the
charter of 1870 is an amendment of one enacted in 1868 (Laws, p.
97), and this, in turn, an amendment of
Page 238 U. S. 75
one enacted in 1859 (Laws 1859, 1st Sess. p. 400). It is further
insisted that, even if the state reserved to itself by the
Constitution of 1865 the right to alter or amend the corporate
charter, this was relinquished when the Constitution of 1875 went
into effect, which contains no similar reservation. And hence, it
is argued that, as applied to this company, the Act of 1907 cannot
be sustained as a charter amendment. This is disputed; but, for
present purposes, we will assume the charter was irrepealable.
Next, it is insisted that for all purposes except those covered
by the Act of 1907, Missouri has at all times adhered to the common
law rule that surface water is a common enemy, against which every
landowner may protect himself as best he can, and that this applies
to and protects railroads as well as other landowners.
Abbott
v. Kansas City &c. Ry. (1884), 83 Mo. 271, 280
et
seq.; Jones v. St. Louis &c. Ry., 84 Mo. 151, 155;
Schneider v. Missouri Pacific Ry., 29 Mo.App. 68, 72;
Ready v. Missouri Pacific Ry., 98 Mo.App. 467. The
conclusion sought to be drawn is that the common law rule, as it
existed at the time the railroad was built and the right of way
acquired, entered into the contract between the state and the
company, and into the contracts between the company and the
landowners from whom its right of way was acquired, and that the
immunity from prosecution and from private action alike was in the
nature of an appurtenance to the land, the enjoyment of which could
not be impaired by subsequent legislation.
Of the cases cited in support of this contention, the only one
that has a semblance of pertinency is
Muhlker v. Harlem
Railroad Co., 197 U. S. 544, and
this is readily distinguishable. There, the right in question was
the easement of light and air, which, of course, pertains closely
to the use and enjoyment of the land. But the right to maintain a
railroad embankment or other artificial structure in such a manner
as to deflect surface water from its
Page 238 U. S. 76
usual course, and thereby injure the land of another, has little
reference to the substantial enjoyment of the railroad right of
way. Nor is it at all essential to the protection of the railroad
itself from surface water. It cannot reasonably be contended that a
railroad cannot be maintained and operated as safely and as
conveniently over a bridge, trestle, culvert, or other opening
calculated to admit the passage of surface water as upon a solid
embankment, or that there is any substantial advantage in favor of
the latter except that it avoids the expenditure necessary to be
made for the construction and maintenance of openings in order that
the embankment shall no longer be the occasion of injury to the
lands of others. The previous immunity from responsibility for such
injury was nothing more than a general rule of law, which was not
in terms or by necessary intendment imported into the contract. For
just as no person has a vested right in any general rule of law or
policy of legislation entitling him to insist that it shall remain
unchanged for his benefit (
Munn v. Illinois, 94 U. S.
113,
94 U. S. 134;
Hurtado v. California, 110 U. S. 516,
110 U. S. 532;
Buttfield v. Stranahan, 192 U. S. 470,
192 U. S. 493;
Martin v. Pittsburg &c. R. Co., 203 U.
S. 284,
203 U. S.
294), so an immunity from a change of the general rules
of law will not ordinarily be implied as an unexpressed term of an
express contract.
See Gross v. United States Mortgage Co.,
108 U. S. 477,
108 U. S. 488;
Pennsylvania R. Co. v. Miller, 132 U. S.
75,
132 U. S.
83.
(3) But a more satisfactory answer to the argument under the
contract clause, and one which at the same time refutes the
contention of plaintiff in error under the due process clause, is
that the statute in question was passed under the police power of
the state for the general benefit of the community at large and for
the purpose of preventing unnecessary and widespread injury to
property.
It is established by repeated decisions of this Court that
neither of these provisions of the federal Constitution
Page 238 U. S. 77
has the effect of overriding the power of the state to establish
all regulations reasonably necessary to secure the health, safety,
or general welfare of the community; that this power can neither be
abdicated nor bargained away, and is inalienable even by express
grant, and that all contract and property rights are held subject
to its fair exercise.
Atlantic Coast Line v. Goldsboro,
232 U. S. 548,
232 U. S. 558,
and cases cited. And it is also settled that the police power
embraces regulations designed to promote the public convenience or
the general welfare and prosperity, as well as those in the
interest of the public health, morals, or safety.
Lake Shore
& Mich. Southern Ry. v. Ohio, 173 U.
S. 285,
173 U. S. 292;
C., B. & Q. Ry. v. Drainage Commissioners,
200 U. S. 561,
200 U. S. 592;
Bacon v. Walker, 204 U. S. 311,
204 U. S.
317.
We deem it very clear that the act under consideration is a
legitimate exercise of the police power, and not in any proper
sense a taking of the property of plaintiff in error. The case is
not at all analogous to those which have held that the taking of a
right of way across one's land for a drainage ditch, where no water
course exists, is a taking of property within the meaning of the
Constitution. The present regulation is for the prevention of
damage attributable to the railroad embankment itself, and amounts
merely to an application of the maxim
sic utere tuo ut alienum
non laedas. Of course, compliance with it involves the
expenditure of money, but so does compliance with regulations
requiring a railroad company to keep its roadbed and right of way
free from combustible matters, to provide its locomotive engines
with spark arresters, to fence its tracks, to provide cattle guards
and gates at crossings, or bridges or viaducts, or the like. Such
regulations as these are closely analogous in principle, and have
been many times sustained as constitutional.
Minneapolis
Railway Co. v. Beckwith, 129 U. S. 26,
129 U. S. 31;
Minneapolis & St. Louis Railway v. Emmons,
149 U. S. 364,
149 U. S. 367;
St. Louis & San Francisco
Ry. v. Mathews, 165 U.S.
Page 238 U. S. 78
1;
Chicago &c. Ry. v. Minneapolis, 232 U.
S. 430,
232 U. S. 438;
Atlantic Coast Line v. Goldsboro, 232 U.
S. 548,
232 U. S.
560-561.
And it is well settled that the enforcement of uncompensated
obedience to a legitimate regulation established under the police
power is not a taking of property without compensation, or without
due process of law, in the sense of the Fourteenth Amendment.
Chicago, Burlington &c. R. Co. v. Chicago,
166 U. S. 226,
166 U. S. 255;
New Orleans Gas Co. v. Drainage Comm., 197 U.
S. 453,
197 U. S. 462;
C., B. & Q. Ry. v. Illinois, 200 U.
S. 561,
200 U. S.
591.
(4) The contention that the statute in question denies to
plaintiff in error the equal protection of the laws is not
seriously pressed, and is quite unsubstantial. Railroad
embankments, stretching unbroken across tracts of land that are
liable to injury from surface waters, differ so materially from
other artificial constructions and improvements to which the
doctrine of the "common enemy" applies, that there is very plainly
a substantial ground for classification with respect to the object
of the legislation. The statute applies alike to corporations,
companies, and persons owning or operating railroads that are so
constructed as to obstruct the flow of drainage and surface waters,
and we deem it unexceptionable in this regard.
Judgment affirmed.