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true that no question is or can be here any city, village, or township shall thus made respecting the authority of the legis- have consented to the construction and lature to add new territory to the city; maintenance of street railways, or granted and it is likewise true that the annexation rights and privileges to the company, and acts contain no reference to existing con- such consent and grant shall have been actracts, nor any specific mention of the sub- cepted by the company, the consent shall ject matter of street railway rights. But, not be revoked or the company deprived in cases of this character, the jurisdiction of the rights and privileges conferred. And of this court does not depend upon the form by g 20 the rates of loil or fare to be in which the legislative action is expressed, charged by the company are to be estabbut rather upon its practical effect and lished by agreement between it and the operation as construed and applied by the corporate authorities, and are not to be instate court of last resort, and this irre- creased without consent of such authorities. spective of the process of reasoning by which It is plain, as was pointed out by this court the decision is reached, or the precise extent in Detroit v. Detroit Citizens' Street R. to which reliance is placed upon the subse. Co. 184 U. S. 368, 385, 46 L. ed. 592, 607, quent legislation. McCullough v. Virginia, 22 Sup. Ct. Rep. 410, that the legislature 172 U. S. 102, 116, 117, 43 L. ed. 382, 387, regarded the fixing of the rate of fare as 388, 19 Sup. Ct. Rep. 134; Houston & T. a subject for agreement between the municiC. R. Co. v. Texas, 177 U. S. 66, 77, 44 pality and the company. And in these L. ed. 673, 680, 20 Sup. Ct. Rep. 545; Terre cases, as in that, the terms of the several Haute & I. R. Co. v. Indiana, 194 U. S. ordinances are such as clearly to import a 579, 589, 48 L. ed. 1124, 1129, 24 Sup. Ct. purpose to contract under the legislative Rep. 767; Louisiana ex rel. Hubert v. New authority thus conferred. Orleans, 215 U. S. 170, 175, 54 L. ed. 144, But it is insisted—and to this effect was 147, 30 Sup. Ct. Rep. 40; Fisher v. New the decision of the state court—that the Orleans, 218 U. S. 438, 440, 54 L. ed. 1099, terms of these contracts were in effect modi. 1100, 31 Sup. Ct. Rep. 57; Carondelet Canal fied by the assent of the owners of the city & Nav. Co. v. Louisiana, 233 U. S. 362, 376, lines on Jefferson and Grand River avenues 58 L. ed. 1001, 1006, 34 Sup. Ct. Rep. 627; to the ordinances of January 3, 1889, and Louisiana R. & Nav. Co. v. Behrman, 235 the subsequent acquisition of these lines U. S. 164, 170, 59 L. ed. 175, 180, 35 Sup. by plaintiff in error, followed by its acCt. Rep. 62. The necessary operation of the quisition of the suburban lines. It is, indecisions under review is to give an effect deed, argued that the construction placed to the annexation acts that substantially by the state court upon the ordinances of impairs the alleged contract rights of plain- 1889 as contracts is not subject to the retiff in error as they theretofore stood; and view of this court, and a declaration to it makes no difference that that result was this effect is cited from Henderson Bridge reached in part by invoking the provisions Co. v. Henderson City, 141 U. S. 679, 689, of another agreement supposed to be bind. 35 L. ed. 900, 904, 12 Sup. Ct. Rep. 114, ing upon plaintiff in error. Whether the quoted in a subsequent case of the same agreement thus invoked, when properly con- title in 173 U. S. 592, 602, 43 L. ed. '823, strued, has the effect attributed to it, is 826, 19 Sup. Ct. Rep. 553. But, notwitha question that touches upon the merits, standing what was there said, it is too well and not upon the jurisdiction of this court. settled to be open to further debate, that

Coming, then, to the merits: Not only where this court is called upon in the exeris it not disputed, but it is not open to cise of its jurisdiction to decide whether serious dispute, that the original village state legislation impairs the obligation of and township grants were contractual in a contract, we are required to determine their natur It appears that the recipients upon our independent judgment these quesof those grants, like their successor, the tions: (1) Was there a contract? (2) If plaintiff in error, became incorporated so, what obligation arose from it? and under the Street Railway Act of 1867, of (3) Has that obligation been impaired by which § 13 provides that consent for the subsequent legislation ? Houston & T. C. construction and maintenance of a street R. Co. v. Texas, 177 U. S. 66, 77, 44 L. ed. railway is to be given by the corporate au- 673, 680, 20 Sup. Ct. Rep. 545; St. Paul thorities in an ordinance to be enacted for Gaslight Co. v. St. Paul, 181 U. S. 142, 147, the purpose, and under such rules, regula- 45 L. ed. 788, 791, 21 Sup. Ct. Rep. 575; tions, and conditions as may be prescribed Terre Haute & I. R. Co. v. Indiana, 194 by such ordinance, but that no such rail. U. S. 579, 589, 48 L. ed. 1124, 1129, 24 way shall be constructed until the company Sup. Ct. Rep. 767. shall have accepted in writing the terms But of course in the present cases the and conditions upon which they are per- crucial question is, What were the obligamitted to use the streets. By § 14, after tions of the contracts as they stood at the time of the subsequent legislation? And the rights of the respective grantees beyond therefore it becomes material to determine the then existing city limits and as far as whether, by voluntary action of the par- the limits should be extended in the future. ties between the making of the suburban Their language does not seem to us to adgrants and the passage of the annexation mit of this interpretation, and the pracacts, the obligations arising out of those tical construction placed upon them by the grants had been modified. The state court parties was to the contrary. As the city deemed that the assent of the Detroit City limits on Jefferson avenue and on Grand Railway to that provision of the first-men- River avenue were extended, the respective tioned ordinance of January 3, 1889, which companies obtained, and presumably were required it to carry passengers at reduced required to obtain, new grants authorizing rates "over any of its lines in said city" an extension of the railways from their applied to any and all lines it either then then present termini to the new city limits. owned or might thereafter acquire, and Both of the ordinances of 1889 contained excomprehended all territory within the limits press grants to this effect with respect to of the city, including any extension of the Jefferson avenue and Grand River avenue municipal boundaries or of the company's, respectively. Each of the original city lines within those boundaries; and that grants, and each of the ordinances of 1889, by the acquisition of the lines of the De- contained particular and comparatively troit City Railway plaintiff in error became brief limitations of time within which the bound by this agreement, and was obliged authorized lines of railway were to be conto observe it, even with respect to the lines structed and placed in operation. For these that it afterwards acquired as assignee of reasons, and because in other respects the the Grosse Point and Fairview franchises, grants are quite specific in their terms, so far as those lines were included in the and because the city at that time had no extended city limits. It was said (162 authority to extend its corporate limits nor Mich. 462, 139 Am. St. Rep. 582, 125 N. to make a grant of street railway rights W. 700, 127 N. W. 748) that there were beyond them, we are compelled to conclude two methods of extending street railways: that the ordinances of 1889 had no such one by construction, the other by purchase extensive meaning as that attributed to under $ 6448 (2 Comp. Laws 1897), being them by the state court. § 15 of the Act of 1867; that “the pur. Defendants in error invoke the estabchased railway becomes as much a part of lished rule that the terms of a municipal the system as does the railroad as con grant or franchise should be construed structed;" and that the ordinance of 1889 strictly as against the grantee, and as fawas made in view of the power of the leg. vorably to the grantor as its terms permit. islature to increase or diminish the terri. The state court deemed the rule to be aptory within the city, and the real intent plicable. 162 Mich. 465; 173 Mich. 323. was to provide for single fares within the It is at least doubtful, however, whether city limits as they should from time to the rule, properly applied to the facts of time be fixed. In 173 Mich. 314, 139 N. W. these cases, does not bear altogether in 66, similar reasoning was applied to the favor of plaintiff in error. For of course ordinance of 1889 respecting the Grand it is not possible to adopt an extensive River Avenue line and the obligation im construction of the obligations imposed posed upon the owner of that line to apply upon the city companies by the ordinances the single fare and the reduced rates "over without adopting a like construction as to the entire route of said company.” The the extent of the franchises thereby concourt considered (173 Mich. 325, 326) that ferred upon the companies. And can it be certain of the language used in the original supposed that if either of these companies ordinance of 1862 to the Detroit City Rail had claimed the right to lay down tracks way and in that of 1868 to the Grand River and operate railways in the annexed terriStreet Railway Company showed that the tory by virtue of the ordinances of 1889, probable growth of the city and develop they would not have been met with the rule ment of its public utilities were anticipated, that municipal grants are to be construed and indicated a purpose that the grants strictly against the grantee, and cannot be should apply as far as the city might be extended beyond their express terms ? In extended.

any view, the ordinances, just because they Notwithstanding our disposition to lean were intended to be contracts, and not towards concurrence with the view of the merely legislative enactments, ought to be state court of last resort in a matter of regarded as having reference to a specific this nature, we are unable to accept its subject matter. construction of the ordinances of 1889. In But were we in error about the constructhe first place, we are unable to view the tion of these ordinances, we still think that original ordinances as intended to extend the acquisition of the city lines by plaintiff in error, and its subsequent acquisition of not within the power of the state of Michithe suburban lines, did not bind it to put gan by any subsequent legislation to impair the reduced fare provisions in effect upon the obligations of those contracts, and since the suburban lines if and when the city the judgments of the supreme court of that limits should thereafter be extended to in- state gave such an effect to the annexation clude any parts of the latter. If the city acts of 1905 and 1907, in conjunction with lines had been extended into the annexed the ordinances of 1889, as to impair those territory by either of the city railway com. obligations, the judgments must be reversed. panies under any authority conferred by We have made no particular mention of or assumed under the ordinances of 1889, an agreement entered into between the city a very different question would be presented. and plaintiff in error in the year 1909, beBut such is not the case. And although cause we agree with the state court (173 we may follow the state court to the extent Mich. 321, 139 N. W. 56) that it was no of considering the acquisition of the subur- more than a temporary provision for a ban lines under $ 6448, Comp. Laws, as be modus operandi, and had not the effect of ing in effect an extension of the city rail. waiving any of the rights of either party. ways, we cannot, without doing violence Judgments reversed, and the causes reto the provisions of that section, regard manded for further proceedings not inconsuch acquisition as abrogating any part of sistent with this opinion. the franchise rights that pertained to the suburban lines; for the section itself de- Mr. Justice Clarke, dissenting: clares that upon such purchase being made, I greatly regret that I cannot concur in the purchasing company “may use and en the decision just announced. The opinion joy the rights, privileges, and franchises of of the majority of the court plainly regards such company, the same and upon the same the act of the legislature of the state of terms as the company whose road and fran. Michigan, extending the corporate limits of chises were so acquired might have done.” | the city of Detroit, as a valid law, passed The rate of fare eing among the most in the exercise of an undoubted power in material and important of the terms and the legislature to deal as it does with the conditions referred to (Detroit v. Detroit municipal corporations of that state, and Citizens' Street R. Co. 184 U. S. 368, 384, its validity for the purposes for which it 46 L. ed. 592, 606, 22 Sup. Ct. Rep. 410; was intended is not questioned. It will reMinnieapolis v. Minneapolis Street R. Co. main a valid law after this decision as it 215 U. S. 417, 434, 54 L. ed. 259, 270, 30 was before. In substance the decision of Sup: Ct. Rep. 118), we find it impossible this court is that the supreme court of to regard the purchase of the suburban Michigan, in deciding that there is an imlines, with their rights, privileges, and fran. plied condition in the contract between the chises, as being in effect an extension of the city of Detroit and the railway company city lines, but at the same time an abro- that the rates of fare therein provided for gation of an essential part of the rights shall apply within the city limits when exand privileges appurtenant to the acquired tended, and in requiring the railway comlines.

pany to accept the same fares throughout The state court cited and relied upon In- the new city limits were accepted diana R. Co. v. Hoffman, 161 Ind. 593, 69 throughout the former limits, gives an efN. E. 399, 15 Am. Neg. Rep. 527, and Pet- fect to the extension act which impairs the erson v. Takoma R. & P. Co. 60 Wash. 406, railway company's contract with the city. 140 Am. St. Rep. 936, 111 Pac. 338. In I am of the opinion that for the state sutheir particular facts and circumstances preme court thus to interpret the terms of those cases differ somewhat from the cases the contract of the railway company with now before us; and, without stopping here the city is not to give an effect to the valid to analyze them, we deem it sufficient to extension act of the legislature which viosay that we are unable to accept their rea- lates the provision of the Constitution prosoning so far as it is inconsistent with the hibiting a state from passing "any law imviews we have expressed.

pairing the obligation of contracts." The It results that the provisions of the passing of the valid extension act merely township and village ordinances respecting created a situation under which the imthe rates of fare remained in full force and plied condition, existing in the fare coneffect after the acquisition of the suburban tract from beginning, finds an application lines by plaintiff in error, notwithstanding to the new territory. This is giving effect its previous acquisition of the city lines or not to the terms of the act of the legislathe previous assent of the city railway com- ture, but to the terms of the contract with panies to the ordinances of 1889. Because the city, and the most that can be said of the provision of § 10 of art. 1 of the / against the decision of the supreme court Constitution of the United States, it was of Michigan is that it gives an erroneous

as

V.

construction to the contract. But since CONSTITUTIONAL LAW 297—“DUE PROit is settled by many decisions of this court CESS OF LAW"-NOTICE AND HEARING. that the contract clause of the Federal Con- 3. The absence of any provision for nostitution does not protect contracts against tice and hearing in Ind. Acts 1909, p. 323,

empowering the State Railroad Commission impairment by the decisions of courts ex

to investigate the condition and efficiency cept where such decisions give effect to con

of headlights then in use on locomotive enstitutions adopted or laws passed subse- gines on the railroads in the state to de. quent to the date of such contracts (Cross termine the most practicable and efficient Lake Shooting & Fishing Club v. Louisiana, headlight for all purposes, and to make and 224 U. S. 632, 56 L. ed. 924, 32 Sup. Ct. enforce against the railway companies the Rep. 577), I am of opinion that there is necessary orders for the installation of such no Federal question before this court in headlights, does not make the Commission's this case and that the writ of error should lights of 1,500 candle power repugnant to

order requiring the installation of headbe dismissed. This is a high and delicate the due process of law clause of Ů. S. Const. power which the court is exercising in this 14th Amend., where the highest state court case, and it should be resorted to only in construes such act as supplemental to Ind. cases which are clear; and, for the reasons Act of February 28, 1905 (Laws 1905, c. 53), thus briefly stated, I am convinced that this which, as amended by Ind. Act of March 9, is not such a case.

187 (Laws 1907, c. 241) gave to any

carrier or other party dissatisfied with any I am authorized to state that Mr. Justice order made by the Commission a right to Brandeis concurs in this dissent.

resort to the courts in an action to suspend it or set it aside, ard the order in question was made after notice and full hearing, and

the complaining carrier had, and exercised, (242 U. S. 255)

the right to a judicial review by action at VANDALIA RAILROAD COMPANY, Piff.

law. in Err.,

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. 88 832-834; Dec. Dig. 297.

For other definitions, see Words and Phrases, PUBLIC SERVICE COMMISSION OF IN- First and Second Series, Due Process of Law.]

DIANA, as the Successor of the Railroad COURTS Om 396(1)-ERROR TO STATE COURT Commission of Indiana.

- WHO MAY RAISE FEDERAL QUESTION

“DUE PROCESS OF LAW." COMMERCE C 10_STATE REGULATION

4. A carrier which has abandoned its CONGRESSIONAL INACTION-REGULATING application for a modification of the order HEADLIGHTS ON LOCOMOTIVES.

of a state railroad commission requiring the 1. Until Congress acts in the matter installation on its locomotives of headlights there is no unconstitutional interference of not less than 1,500 candle power is not with interstate commerce in an order of a

in a position to urge upon the Federal Sustate railroad commission, made under leg: preme Court, on writ of error to a state islative authority, requiring all engines used court, that the Commission's order is so in the transportation of trains over any indefinite and uncertain in its terms as not line of railroad within the state to be to furnish an intelligible measure of the equipped with headlights of not less than carrier's duty, and is therefore a denial of 1,500 candle power.

due process of law. (Ed. Note.--For other cases, see Commerce,

[Ed. Note.--For other cases, see Courts, Cent. Cert. Dig. § 8; Dec. Dig. Om 10.)

Dig. § 1080; Dec. Dig. Om 396(1).]
COURTS Om 399(1)-ERROR TO STATE COURT
-SCOPE OF REVIEW-QUESTION NOT IN-

[No. 81.] VOLVED IN RECORD,

Submitted November 6, 1916. Decided De2. Whether Congress has so far cov

cember 11, 1916. ered the subject of headlights for locomotives by the amendment of March 4, 1915

N ERROR to the Supreme Court of the (38 Stat. at L. 1192, chap. 169), to the boiler inspection act of February 17, 1911 which affirmed a decree of the Superior (36 Stat. at L. 913, chap. 103, Comp. Stat. Court of Marion County, in that state, in 1913, § 8630), as to invalidate, when ap- favor of defendant in a suit to enjoin the plied to interstate commerce, an order of a state railroad commission, made under leg. enforcement of an order of the State Railislative authority, requiring all engines road Commission, requiring locomotives to used in the transportation of trains over be equipped with headlights of not less than any line of railway in the state to be 1,500 candle power. Affirmed. equipped with headlights of not less than

See same case below, 182 Ind. 382, 101 1,500 candle power, is not open to review N. E. 85. in the Federal Supreme Court on writ of

The facts are stated in the opinion. error to a state court, where the state court's decision under review, refusing to

Messrs. Samuel O. Pickens, Frederio enjoin the enforcement of the order, was

D. McKenney, D. P. Williams, and Owen rendered, and judgment thereon entered, be Pickens for plaintiff in error. fore the passage by Congress of such amen- Messrs. Bert Winters, Burt New, Wilbur datory act.

T. Gruber, and Mr. Evan B. Stotsenburg, [Ed Note:-For other cases, see. Courts, Cent, Attorney General of Indiana, for defend.

I

. $ ; (; Error, Cent. Dig. $ 3384.)

ant in error.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Mr. Justice Pitney delivered the opinion , sion's answer thereto, it was made to apof the court:

pear that, after the making of the order, The Railroad Commission of Indiana was Mr. Houghton, chairman of a committee apcreated and broad powers were conferred pointed to represent the plaintiff and the upon it by an act approved February 28, other railroad companies named in the or1905, and an amendatory act approved der with respect to presenting a petition to March 9, 1907 (Acts 1905, p. 83; Acts 1907, the Commission for a modification of its p. 454; Burns's Anno. Stat. (Ind.) 1908, provisions, made written application to the $8 5531 et seq.). By a later act (Acts 1909, Commission for a suspension of the order p. 323), the Commission was specifically au- and a further hearing upon the subject; thorized and directed to investigate the con- that the Commission replied that, under the dition and efficiency of headlights then in statute and the practice of the Commission, use on locomotive engines on the railroads it had authority to alter, change, or modify in the state, determine the most practicable any final order made by it, and that the and efficient headlight for all purposes, and Commission would not suspend the order in make and enforce against the railroad com question, but would treat Mr. Houghton's panies the necessary orders for the installa- i communication as an application for its tion of such headlights. Pursuant to this modification, and specifying a time for the authority it conducted an investigation, hearing of that application; that on the upon notice to plaintiff in error and all date specified the carriers appeared by Mr. other steam railroad companies operating Houghton, chairman of the committee, and in the state, the result of which was an by counsel, and withdrew the application order, made January 6, 1910, reciting the for modification, whereupon it was disinvestigation, declaring that the oil head. missed. Plaintiff demurred to the answer, lights commonly in use were inadequate for the demurrer was overruled, and, plaintiff the protection of persons and property, and refusing to plead further, final judgment ordering that all engines used in the trans- was rendered against it, and, on appeal, this portation of trains over any line of railroad was affirmed by the supreme court of Inin the state should be equipped "with head- diana; that court holding that plaintiff's lights of not less than 1,500 candle power.” complaint did not show ground for the relief About one month thereafter plaintiff in er. sought. 182 Ind. 382, 101 N. E. 85. The ror brought an action in a state court of case comes here upon the Federal questions, competent jurisdiction seeking to enjoin under $ 237, Judicial Code (36 Stat. at L. enforcement of the order upon the ground 1156, chap. 231, Comp. Stat. 1913, $ 1214]. that the act of 1909 and the order made So far as the attack upon the Act of 1909 pursuant to it were repugnant to the "com and the order made pursuant to it is based merce clause" of the Constitution of the upon interference with interstate commerce, United States and the statutes enacted it very properly is conceded that, but for a thereunder, and to the "due process clause" recent act of Congress, the case would be of the 14th Amendment. Among other controlled by Atlantic Coast Line R. Co. v. grounds of attack it was averred that the Georgia, 234 U. S. 280, 290, 58 L. ed. 1312, order was so vague, indefinite, and uncer. 1317, 34 Sup. Ct. Rep. 829, where it was tain in its description of the headlight re- held that, in the absence of Federal legislaquired as to be meaningless and void, be- tion, the states are at liberty, in the exercause it failed to specify at what distance cise of their police power, to establish regufrom the source of light the illuminating lations for securing safety in the physical power was to be measured, and whether it operation of railroad trains within their was to be determined by averaging the in- territory, even though such trains are used tensity of the light at a given distance from in interstate commerce; and that (p. 293) its source, and if so, at what distance; that the Safety Appliance Acts of Congress, the order did not specify the character of since they provided no regulations for locothe reflector, nor whether the required can motive headlights, showed no intent to dle power might be developed by reflectors supersede the exercise of state power with or lenses, or whether the light must be of respect to this subject. 1,500 candle power independent of such But it is insisted that this decision is no lenses or reflectors; it being averred that longer controlling, because Congress has each of these elements was an essential fac- since then “exercised its power as to equiptor in the ascertainment and measurement ment over the entire locomotive and tender of the illuminating capacity of headlights, and all parts and appurtenances thereof." and that there was no known standard by The reference is to the act of March 4, 1915 which such capacity might be measured (chap. 169, 38 Stat. at L. 1192), amendaand expressed in terms of candle power in tory of the act of February 17, 1911, requirthe absence of those factors. From an ing common carriers engaged in interstate amended complaint, and from the Commis- commerce to equip their locomotives with

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