203 U. S.

Argument for Plaintiff in Error.

FAIR HAVEN AND WESTVILLE RAILROAD COMPANY v. NEW HAVEN.

ERROR TO THE SUPREME COURT OF ERRORS OF THE STATE OF

CONNECTICUT.

No. 84. Argued November 5, 6, 1906.-Decided December 3, 1906.

A general law requiring street railways to keep a certain space between and outside their tracks paved and repaved and assessing them therefor amounts, in respect to companies whose charters contain other provisions, to an amendment thereof, and as such a purpose is consistent with the object of the grant it falls within the reserved power of the State to alter, amend or repeal the original charter, and if imposed in good faith and not in sheer oppression the act is not void either as depriving the company of its property without due process of law or as impairing the contract obligations of the original grant. So held as to law of 1899 of Connecticut. One of the public rights of great extent of the State is the establishment, maintenance and care of its highways. West Chicago Railway v. Chicago, 201 U. S. 506.

77 Connecticut, 677, affirmed.

THE facts are stated in the opinion.

Mr. George D. Watrous and Mr. Talcott H. Russell for plaintiff in error:

The act of 1895 so far as affects the plaintiff cannot be sustained as an exercise of the police power. It is not in fact an exercise of the police power, but an attempt to exercise the revenue power. Cooley's Const. Lim., 6th ed., 704; 4th ed., 719; Freund, Police Power, § 3; Rochester Turnpike Co. v. Joel, 41 App. Div. (N. Y.) 43; Potter's Dwarris, 458. The taxing power is a separate and distinct power from the police power.

Whether the railroad paid these assessments or not did not affect in any way the object sought by the police power. The act is plainly an example of that class of acts by which it has been attempted to exercise the power of special assessment

Argument for Defendant in Error.

203 U. S.

by fixed rules in order to avoid inquiry in reference to the benefits in each case; the same class of acts which have repeatedly come before this court, and particularly in the case of Norwood v. Baker, 172 U. S. 269. Dillon on Mun. Corp., $ 752.

The act of 1899 repealed the act of 1895.

Neither the act of 1895 nor that of 1899 can be upheld under the reserved power of amendment. The legislature cannot take property under guise of the power of repeal and amendment. Inland Fisheries Co. v. Holyoke Water Co., 104 Massachusetts, 446; Holyoke v. Lyman, 15 Wall. 500; Railway Co. v. Bristol, 151 U. S. 556, do not support the opinion below. See Railway Co. v. Smith, 173 U. S. 684; New York v. O'Brien, 111 N. Y. 1; State v. Haun, 61 Kansas, 146.

An obligation to keep in repair does not include an obligation to repave.

Mr. Leonard M. Daggett and Mr. E. P. Arvine for defendant in error:

The assessment directed by the act of 1895, treated as an assessment of benefits, is not a taking of property without compensation or without due process of law. French v. The Barber Asphalt Co., 181 U. S. 324; Brown v. Drain, 112 Fed. Rep. 582; Davidson v. New Orleans, 96 U. S. 97; Scott v. Pitt, 169 N. Y. 521.

The Special Law of 1895 was an amendment of the plaintiff's charter.

This has been held by the Supreme Court of Connecticut in this case, interpreting Connecticut legislation and it should not now be questioned in this court. Bulkley v. N. Y., N. H. & H. R. R. Co., 27 Connecticut, 479; N. Y. & N. E. R. R. Co. v. Waterbury, 60 Connecticut, 1; N. Y. & N. E. R. R. Co.'s Appeal, 62 Connecticut, 527, 538; English v. N: Y., N. H. & H. R. R. Co., 32 Connecticut, 243.

The power of amendment cannot be restricted to such measures as might be justified also as an exercise of the police

power. The police power may be exercised in derogation of rights claimed by contract. The power of amendment covers acts which are not an exercise of the police power; otherwise the power of amendment is ineffective.

While the power of amendment is not without some restriction, and may not be exercised to impair the obligation of a contract made by the company pursuant to its charter rights that it was designed to enable the State to change the obligation of its contract, that is the terms of the corporate charter. This certainly may be done by a legislative measure, passed in good faith, consistent with the scope and object of the act of incorporation and respecting vested rights of property. Stanislaus County v. San Joaquin Canal Co., 192 U. S. 201; Sioux City Ry. Co. v. Sioux City, 138 U. S. 98; N. Y. & N. E. R. R. Co. v. Bristol, 151 U. S. 567; Spring Valley Water Works v. Schottler, 110 U. S. 347; Pennsylvania College Cases, 13 Wall. 190; Tomlinson v. Jessup, 15 Wall. 454; 1 Morawetz, Corporations, §§ 1093 et seq.

That the act of 1895 was a valid exercise of the police power is shown by the authorities cited in the opinion of the Supreme Court of Connecticut in this case.

It is not necessary to determine whether the act of 1895 should be regarded as an act authorizing an assessment of benefits, that is of taxation, or one imposing a new condition on the original grant. Lincoln St. Ry. Co. v. Lincoln, 84 N. W. Rep. 802.

MR. JUSTICE MCKENNA delivered the opinion of the court.

This case involves the validity of an assessment of $36,879, against plaintiff in error, for the cost of paving between its tracks and for one foot on each side thereof. Plaintiff in error operates a double track electric railway through West Chapel street in New Haven.

In pursuance of certain laws of the State the court of common council, through a contractor, caused the street to be

paved with sheet asphalt. The work was begun in June, 1897, and completed in October or November of the same year. The city paid for the work, and, as provided by the statutes, assessed against plaintiff in error its proportion of the cost, to wit, $36,879. On appeal to the Superior Court for New Haven County, that court reduced the assessment to $5,823, and entered judgment against plaintiff in error for that sum. The learned judge of the Superior Court expressed the contentions of the parties and his conclusions as follows:

"It is contended by the defendant that the assessment against the plaintiff is legal and valid under the act of 1895. Charter of New Haven, page 80.

"It is contended by the plaintiff that the act of 1895 is repealed by the act of 1899, Special Laws of 1899, p. 181; and if it is not repealed, the act of 1895 is unconstitutional and void.

"Inasmuch as I hold and rule that the act of 1895 is repealed by the act of 1899, it is unnecessary to pass upon the constitutionality of the former. The intention and effect of the latter act is to repeal the former. The last act covers the whole subject-matter of assessments for benefits and damages arising from paved streets, and provides expressly for the assessments of benefits and damages for pavements already constructed in West Chapel street.

"This conclusion entitles the plaintiff to relief from the assessment as laid by the amendment to the report of the bureau of compensation; and it is, therefore, ordered that the assessment be reduced to the sum of $5,823, as recommended by the bureau of compensation."

And the judgment of the Superior Court recited:

"The asphalt pavement in said street is not a direct benefit to the plaintiff or its property, but on the other hand is a direct damage to the plaintiff and its property, inasmuch as it largely increases the expense of repairing the roadway between the rails, and of general repairs to the track, ties, and structure of the railroad. The only benefit to the railroad is such as

results from the general improvement to the locality by reason of such pavement tending to increase the population and traffic in that section of the city. Such benefit does not exceed the amount of $5,823."

Upon the appeal of the city the judgment was reversed by the Supreme Court of Errors. 75 Connecticut, 442. On the return of the case to the Superior Court that court rendered judgment dismissing the application of plaintiff in error, and confirming and establishing the assessment of $36,879. The judgment was reversed by the Supreme Court of Errors and the case remanded to the Superior Court, with directions to deduct from the assessment the cost of repair. In accordance with this direction the Superior Court deducted from the assessment the sum of $3,590.85, and confirmed the assessment less such deduction. This judgment was affirmed by the Supreme Court of Errors.

The statutes under which the street was paved and the assessment against plaintiff in error was made may be summarized as follows: Section 9 of the charter of plaintiff in error authorized the common council of the city to establish such regulations in regard to the railway as might be required for "paving in and along the streets," and the company was required to conform to the grades then existing or thereafter established. And it was provided that the company should "keep that portion of the streets and avenues over which their road or way shall be laid down, with a space of two feet on each side of the track or way, in good and sufficient repair, without expense to the city or town of New Haven, or the owners of land adjoining said track or way."

It was provided (section 13) that the act might be altered, amended or repealed at the pleasure of the general assembly. The charter was amended July 9, 1864, and the company was authorized to lay down its tracks and run its cars through Chapel street, subject to the prohibitions of the ninth section of its original charter.

In 1893 a general law was passed applicable to all railways,