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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 § 20 the rates of toll 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 modi1100, 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 effectdeed, 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 nature. 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? 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 and conditions upon which they are permitted to use the streets. By § 14, after

and

But of course in the present cases the crucial question is, What were the obligations of the contracts as they stood at the

the rights of the respective grantees beyond the then existing city limits and as far as the limits should be extended in the future. Their language does not seem to us to admit of this interpretation, and the practical construction placed upon them by the parties was to the contrary. As the city limits on Jefferson avenue and on Grand River avenue were extended, the respective companies obtained, and presumably were required to obtain, new grants authorizing an extension of the railways from their then present termini to the new city limits. Both of the ordinances of 1889 contained express grants to this effect with respect to Jefferson avenue and Grand River avenue respectively. Each of the original city grants, and each of the ordinances of 1889, contained particular and comparatively brief limitations of time within which the authorized lines of railway were to be constructed and placed in operation. For these reasons, and because in other respects the grants are quite specific in their terms, and because the city at that time had no authority to extend its corporate limits nor to make a grant of street railway rights beyond them, we are compelled to conclude that the ordinances of 1889 had no such extensive meaning as that attributed to them by the state court.

time of the subsequent legislation? And therefore it becomes material to determine whether, by voluntary action of the parties between the making of the suburban grants and the passage of the annexation acts, the obligations arising out of those grants had been modified. The state court deemed that the assent of the Detroit City Railway to that provision of the first-mentioned ordinance of January 3, 1889, which required it to carry passengers at reduced rates "over any of its lines in said city" applied to any and all lines it either then owned or might thereafter acquire, and comprehended all territory within the limits of the city, including any extension of the municipal boundaries or of the company's lines within those boundaries; and that by the acquisition of the lines of the Detroit City Railway plaintiff in error became bound by this agreement, and was obliged to observe it, even with respect to the lines that it afterwards acquired as assignee of the Grosse Point and Fairview franchises, so far as those lines were included in the extended city limits. It was said (162 Mich. 462, 139 Am. St. Rep. 582, 125 N. W. 700, 127 N. W. 748) that there were two methods of extending street railways: one by construction, the other by purchase under § 6448 (2 Comp. Laws 1897), being § 15 of the Act of 1867; that "the purchased railway becomes as much a part of the system as does the railroad as constructed;" and that the ordinance of 1889 was made in view of the power of the leg-vorably to the grantor as its terms permit. islature to increase or diminish the territory within the city, and the real intent was to provide for single fares within the city limits as they should from time to time be fixed. In 173 Mich. 314, 139 N. W. 56, similar reasoning was applied to the ordinance of 1889 respecting the Grand River Avenue line and the obligation imposed upon the owner of that line to apply the single fare and the reduced rates "over the entire route of said company." The court considered (173 Mich. 325, 326) that certain of the language used in the original ordinance of 1862 to the Detroit City Railway and in that of 1868 to the Grand River Street Railway Company showed that the probable growth of the city and development of its public utilities were anticipated, and indicated a purpose that the grants should apply as far as the city might be extended.

Notwithstanding our disposition to lean towards concurrence with the view of the state court of last resort in a matter of this nature, we are unable to accept its construction of the ordinances of 1889. In the first place, we are unable to view the original ordinances as intended to extend

Defendants in error invoke the established rule that the terms of a municipal grant or franchise should be construed strictly as against the grantee, and as fa

The state court deemed the rule to be applicable.

162 Mich. 465; 173 Mich. 323.

It is at least doubtful, however, whether
the rule, properly applied to the facts of
these cases, does not bear altogether in
favor of plaintiff in error. For of course
it is not possible to adopt an extensive
construction of the obligations imposed
upon the city companies by the ordinances
without adopting a like construction as to
the extent of the franchises thereby con-
ferred upon the companies. And can it be
supposed that if either of these companies
had claimed the right to lay down tracks
and operate railways in the annexed terri-
tory by virtue of the ordinances of 1889,
they would not have been met with the rule
that municipal grants are to be construed
strictly against the grantee, and cannot be
extended beyond their express terms?
any view, the ordinances, just because they
were intended to be contracts, and not
merely legislative enactments, ought to be
regarded as having reference to a specific
subject matter.

In

But were we in error about the construction of these ordinances, we still think that the acquisition of the city lines by plaintiff

not within the power of the state of Michigan by any subsequent legislation to impair the obligations of those contracts, and since the judgments of the supreme court of that state gave such an effect to the annexation acts of 1905 and 1907, in conjunction with the ordinances of 1889, as to impair those obligations, the judgments must be reversed.

We have made no particular mention of an agreement entered into between the city and plaintiff in error in the year 1909, because we agree with the state court (173 Mich. 321, 139 N. W. 56) that it was no more than a temporary provision for a modus operandi, and had not the effect of waiving any of the rights of either party.

Judgments reversed, and the causes remanded for further proceedings not inconsistent with this opinion.

Mr. Justice Clarke, dissenting:

in error, and its subsequent acquisition of the suburban lines, did not bind it to put the reduced fare provisions in effect upon the suburban lines if and when the city limits should thereafter be extended to include any parts of the latter. If the city lines had been extended into the annexed territory by either of the city railway companies under any authority conferred by or assumed under the ordinances of 1889, a very different question would be presented. But such is not the case. And although we may follow the state court to the extent of considering the acquisition of the suburban lines under § 6448, Comp. Laws, as being in effect an extension of the city railways, we cannot, without doing violence to the provisions of that section, regard such acquisition as abrogating any part of the franchise rights that pertained to the suburban lines; for the section itself declares 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 being 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 reMinneapolis 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 lines, but at the same time an abrogation of an essential part of the rights and privileges appurtenant to the acquired lines.

The state court cited and relied upon Indiana R. Co. v. Hoffman, 161 Ind. 593, 69 N. E. 399, 15 Am. Neg. Rep. 527, and Peterson v. Takoma R. & P. Co. 60 Wash. 406, 140 Am. St. Rep. 936, 111 Pac. 338. In their particular facts and circumstances those cases differ somewhat from the cases now before us; and, without stopping here to analyze them, we deem it sufficient to say that we are unable to accept their reasoning so far as it is inconsistent with the views we have expressed.

city of Detroit and the railway company that the rates of fare therein provided for shall apply within the city limits when extended, and in requiring the railway company to accept the same fares throughout the new city limits as were accepted throughout the former limits, gives an effect to the extension act which impairs the railway company's contract with the city. I am of the opinion that for the state supreme court thus to interpret the terms of the contract of the railway company with the city is not to give an effect to the valid extension act of the legislature which violates the provision of the Constitution prohibiting a state from passing "any law impairing 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 legisla the 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

CESS OF LAW"-NOTICE AND HEARING.

construction to the contract. But since | CONSTITUTIONAL LAW 297-"DUE PROit is settled by many decisions of this court that the contract clause of the Federal Con

stitution does not protect contracts against impairment by the decisions of courts except where such decisions give effect to constitutions adopted or laws passed subsequent to the date of such contracts (Cross Lake Shooting & Fishing Club v. Louisiana, 224 U. S. 632, 56 L. ed. 924, 32 Sup. Ct. Rep. 577), I am of opinion that there is no Federal question before this court in this case and that the writ of error should be dismissed. This is a high and delicate power which the court is exercising in this case, and it should be resorted to only in cases which are clear; and, for the reasons thus briefly stated, I am convinced that this is not such a case.

3. The absence of any provision for notice and hearing in Ind. Acts 1909, p. 323, empowering the State Railroad Commission to investigate the condition and efficiency of headlights then in use on locomotive engines on the railroads in the state to determine the most practicable and efficient headlight for all purposes, and to make and enforce against the railway companies the necessary orders for the installation of such headlights, does not make the Commission's order requiring the installation of headlights of 1,500 candle power repugnant to the due process of law clause of U. S. Const. 14th Amend., where the highest state court construes such act as supplemental to Ind. Act of February 28, 1905 (Laws 1905, c. 53), which, as amended by Ind. Act of March 9, 1907 (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.

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COMMERCE 10-STATE REGULATION
CONGRESSIONAL INACTION-REGULATING
HEADLIGHTS ON LOCOMOTIVES.

1. Until Congress acts in the matter there is no unconstitutional interference with interstate commerce in an order of a state railroad commission, made under leg islative authority, requiring all engines used in the transportation of trains over any line of railroad within the state to be equipped with headlights of not less than 1,500 candle power.

[Ed. Note. For other cases, see Commerce,
Ceat. Dig. § 8; Dec. Dig. 10.]
COURTS 399(1)-ERROR TO STATE COURT
-SCOPE OF REVIEW-QUESTION NOT IN-
VOLVED IN RECORD.

2. Whether Congress has so far covered the subject of headlights for locomotives by the amendment of March 4, 1915 (38 Stat. at L. 1192, chap. 169), to the boiler inspection act of February 17, 1911 (36 Stat. at L. 913, chap. 103, Comp. Stat. 1913, § 8630), as to invalidate, when applied to interstate commerce, an order of a state railroad commission, made under legislative authority, requiring all engines used in the transportation of trains over any line of railway in the state to be equipped with headlights of not less than 1,500 candle power, is not open to review in the Federal Supreme Court on writ of error to a state court, where the state court's decision under review, refusing to enjoin the enforcement of the order, was rendered, and judgment thereon entered, before the passage by Congress of such amendatory act.

[Ed: Note.-For other cases, see Courts, Cent. Dig. 1089; Dec. Dig. 399(1); Appeal and Error. Cent. Dig. § 3384.]

resort to the courts in an action to suspend it or set it aside, and the order in question was made after notice and full hearing, and the complaining carrier had, and exercised, the right to a judicial review by action at law.

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

For other definitions, see Words and Phrases,

First and Second Series, Due Process of Law.]
COURTS 396(1)-ERROR TO STATE COURT
-WHO MAY RAISE FEDERAL QUESTION-
"DUE PROCESS OF LAW."

4. A carrier which has abandoned its application for a modification of the order of a state railroad commission requiring the installation on its locomotives of headlights of not less than 1,500 candle power is not in a position to urge upon the Federal Supreme Court, on writ of error to a state court, that the Commission's order is so indefinite and uncertain in its terms as not to furnish an intelligible measure of the carrier's duty, and is therefore a denial of due process of law.

[Ed. Note.-For other cases, see Courts, Cent. Dig. § 1080; Dec. Dig. 396(1).]

[No. 81.]

Submitted November 6, 1916. Decided December 11, 1916.

I

IN ERROR to the Supreme Court of the State of Indiana to review a decree which affirmed a decree of the Superior Court of Marion County, in that state, in favor of defendant in a suit to enjoin the enforcement of an order of the State Railroad Commission, requiring locomotives to be equipped with headlights of not less than 1,500 candle power. Affirmed.

See same case below, 182 Ind. 382, 101 N. E. 85.

The facts are stated in the opinion. Messrs. Samuel O. Pickens, Frederic D. McKenney, D. P. Williams, and Owen Pickens for plaintiff in error.

Messrs. Bert Winters, Burt New, Wilbur T. Gruber, and Mr. Evan B. Stotsenburg, Attorney General of Indiana, for defendant 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:

The Railroad Commission of Indiana was created and broad powers were conferred upon it by an act approved February 28, 1905, and an amendatory act approved March 9, 1907 (Acts 1905, p. 83; Acts 1907, p. 454; Burns's Anno. Stat. [Ind.] 1908, §§ 5531 et seq.). By a later act (Acts 1909, p. 323), the Commission was specifically authorized and directed to investigate the condition and efficiency of headlights then in use on locomotive engines on the railroads in the state, determine the most practicable and efficient headlight for all purposes, and make and enforce against the railroad companies the necessary orders for the installation of such headlights. Pursuant to this authority it conducted an investigation, upon notice to plaintiff in error and all other steam railroad companies operating in the state, the result of which was an order, made January 6, 1910, reciting the investigation, declaring that the oil headlights commonly in use were inadequate for the protection of persons and property, and ordering that all engines used in the transportation of trains over any line of railroad in the state should be equipped "with headlights of not less than 1,500 candle power." About one month thereafter plaintiff in error brought an action in a state court of competent jurisdiction seeking to enjoin enforcement of the order upon the ground that the act of 1909 and the order made pursuant to it were repugnant to the "commerce clause" of the Constitution of the United States and the statutes enacted thereunder, and to the "due process clause" of the 14th Amendment. Among other grounds of attack it was averred that the order was so vague, indefinite, and uncertain in its description of the headlight required as to be meaningless and void, because it failed to specify at what distance from the source of light the illuminating power was to be measured, and whether it was to be determined by averaging the intensity of the light at a given distance from its source, and if so, at what distance; that the order did not specify the character of the reflector, nor whether the required candle power might be developed by reflectors or lenses, or whether the light must be of 1,500 candle power independent of such lenses or reflectors; it being averred that each of these elements was an essential factor in the ascertainment and measurement of the illuminating capacity of headlights, and that there was no known standard by which such capacity might be measured and expressed in terms of candle power in the absence of those factors. From an amended complaint, and from the Commis

pear that, after the making of the order, Mr. Houghton, chairman of a committee appointed to represent the plaintiff and the other railroad companies named in the order with respect to presenting a petition to the Commission for a modification of its provisions, made written application to the Commission for a suspension of the order and a further hearing upon the subject; that the Commission replied that, under the statute and the practice of the Commission, it had authority to alter, change, or modify any final order made by it, and that the Commission would not suspend the order in question, but would treat Mr. Houghton's communication as an application for its modification, and specifying a time for the hearing of that application; that on the date specified the carriers appeared by Mr. Houghton, chairman of the committee, and by counsel, and withdrew the application for modification, whereupon it was dismissed. Plaintiff demurred to the answer, the demurrer was overruled, and, plaintiff refusing to plead further, final judgment was rendered against it, and, on appeal, this was affirmed by the supreme court of Indiana; that court holding that plaintiff's complaint did not show ground for the relief sought. 182 Ind. 382, 101 N. E. 85. The case comes here upon the Federal questions, under § 237, Judicial Code [36 Stat. at L. 1156, chap. 231, Comp. Stat. 1913, § 1214].

So far as the attack upon the Act of 1909 and the order made pursuant to it is based upon interference with interstate commerce, it very properly is conceded that, but for a recent act of Congress, the case would be controlled by Atlantic Coast Line R. Co. v. Georgia, 234 U. S. 280, 290, 58 L. ed. 1312, 1317, 34 Sup. Ct. Rep. 829, where it was held that, in the absence of Federal legislation, the states are at liberty, in the exercise of their police power, to establish regulations for securing safety in the physical operation of railroad trains within their territory, even though such trains are used in interstate commerce; and that (p. 293) the Safety Appliance Acts of Congress, since they provided no regulations for locomotive headlights, showed no intent to supersede the exercise of state power with respect to this subject.

But it is insisted that this decision is no longer controlling, because Congress has since then "exercised its power as to equipment over the entire locomotive and tender and all parts and appurtenances thereof." The reference is to the act of March 4, 1915 (chap. 169, 38 Stat. at L. 1192), amendatory of the act of February 17, 1911, requiring common carriers engaged in interstate commerce to equip their locomotives with

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