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Perry v. New Orleans, Mobile & Chattanooga Railroad Company.

this case was tried in the Circuit Court, the present action, so far as it rests on that statute, is in the nature of a suit for a penal liability, and must fall with it. But this is not a penal action, nor a suit in the nature of a penal action. It is a suit to recover damages, which resulted to the plaintiff, from the failure of the defendant to conform to the requirements of an act of Congress. The failure and consequent loss fixed the charge of negligence upon the carrier, and denied to him the defensive protection, reserved in the bill of lading, against loss by fire. The loss then, in the eye of the law, was the result of negligence; because a violation by a common carrier, of a duty enjoined by law, is negligence. A subsequent repeal of the statute cannot convert negligence into diligence. In Woods v. Armstrong, at December term, 1875, we considered a question similar to this; and then held that the repeal of a statute, which enjoined a duty, did not purge the taint in a contract made while the statute was in force, and in disregard of its terms.

Many of the rulings of the Circuit Court were not in harmony with the principles we have declared. We deem it unnecessary to point them out.

The judgment of the Circuit Court is reversed, and the cause remanded.

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Where owners of land in a city have dedicated streets for public use, retaining the fee of the soil, the municipal authorities, in the absence of express legislative authority, cannot authorize the use of such streets by a steam railway company.*

BILL

ILL of injunction. The relief was denied. The opinion states the facts in the latter part.

D. C. Anderson and R. H. Smith, for appellants.

*See note, ante, p. 267.

Perry v. New Orleans, Mobile & Chattanooga Railroad Company.

Geo. N. Stewart and Alex. McKinstry, contra.

STONE, J. The most important question that can be raised on this record makes it our duty to inquire into the police power of the State, and the extent to which its exercise may be carried in the control of private property. The introduction of railroads, as highways of travel and transportation, has seemingly disturbed some of the old landmarks, and requires of the courts, in accommodation to the spirit of progress, that we apply principles, long well understood, to new conditions and exigencies. "All property," says an eminent authority, "is held subject to those general regulations which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment, as shall prevent them from being injurious, and to such reasonable restraints and regulations, established by law, as the legislature, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient. Commonwealth v. Alger, 7 Cush. 84-5, per SHAW, C. J. "By this general police power of the State, persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health and prosperity of the State; of the perfect right in the legislature to do which, no question ever was, or upon acknowledged general principles, ever can be made, so far as natural persons are concerned." Thorpe v. Rutland & Burlington R. R., 27 Vt. 140, 149.

In the earlier history of railroads, controversies frequently arose as to how far private rights, privileges, easements and even chartered privileges, could be impaired or invaded, in their construction and operation. The controversy that arose over the Wheeling bridge is a memorable instance of the obstinate resistance opposed by the public, at that time, to the asserted right to obstruct the navigation of the Ohio river, one of the great arteries of river commerce. See Pennsylvania v. Wheeling Bridge Co., 13 How. 518; s. c., 18 id. 421. In the first hearing of that case, it was declared by a majority of the court that the bridge was a public nuisance, injurious to the legal rights and interests of the State of Pennsylvania, the party complaining in that suit. TANEY, C. J. with whom Justice DANIEL concurred, dissented, and among other things, employed the following strong language:

Perry v. New Orleans, Mobile & Chattanooga Railroad Company.

"I am by no means prepared to say that the bridge would be a public nuisance even at common law. The evidence of the degree in which it obstructs navigation is exceedingly voluminous, and it is impossible to go fully into an examination of its comparative weight, in a manner that would do justice to the subject, without making this opinion itself a volume. It is sufficient to say that, in all questions of this kind, the general convenience and interest of the public, in the travel and trade across the river, as well as on its waters, must be taken into consideration. For whether it is a public nuisance or not, depends upon whether it is or is not injurious to the public. The cases in the State courts, and in the Circuit Courts of the United States, referred to in the argument, which I shall not stop here to examine, in my opinion maintain this doctrine; and upon principle, independently of adjudications, it cannot be otherwise. A structure which promotes the convenience of the public cannot be a nuisance to it. And the public, whose interests are to be looked to in this case, is not the public of any particular town, or district of country, or State, or States, but the great public of the whole Union. Taking this view of the question, and looking at the testimony as set forth in the record, and more especially to that unerring test-experience - which the lapse of time has afforded, I am convinced that the detriment and inconvenience to the commerce and travel on the river is small and occasional only, while the advantages which the public derives from the passage over are great and constant; and if the courts of the United States had common-law jurisdiction, and the question was legally before us to determine whether this bridge was a public nuisance or not, I am of opinion that it is not; and that the advantages which the great body of the people of the United States reap from it outweigh the disadvantages and inconvenience sustained by the commerce and navigation of the river."

Before the case went a second time before the Supreme Court, an act of Congress had been passed, declaring "that the bridges across the Ohio river at Wheeling, in the State of Virginia, and at Bridgeport, in the State of Ohio, abutting on Zane's Island, in said river, are hereby declared to be lawful structures in their present positions and elevations," etc. It was held that this act legalized the bridges, from that time forth. The substance of the decision was, that "the bridge no longer being an unlawful interference with a public right, the defendant's authority to maintain it, in its then posi

Perry v. New Orleans, Mobile & Chattanooga Railroad Company.

tion and height, existed from the moment of the enactment; for their authority then combined the concurrent powers of both governments, State and Federal; and if these are not sufficient, none can be found in our system." 18 How. 421.

Speaking on the same subject, the Supreme Court of the United States said, in Gilman v. Philadelphia, 3 Wall. 713, 729: "It must not be forgotten, that bridges, which are connecting parts of turnpikes, streets, and railroads, are means of commercial transportation, as well as navigable waters; and that the commerce which passes over a bridge may be much greater than would ever be transported on the water it obstructs. It is for the municipal power to weigh the considerations which belong to the subject, and to decide which shall be preferred, and how far either shall be made subservient to the other."

We have indulged in these reflections on a kindred subject, to show that the new methods of travel and transportation, introduced by modern discovery, have somewhat modified the ancient rules which gave redress for private injuries, caused by public nuisances; or, rather, the right of the government to exercise its police power, in selecting and fostering one public enterprise, looking to the public accommodation, at the expense of other interests, private and public, has been more clearly declared and defined. Inventions new and useful, and new industries and new enterprises consequent thereon, necessarily impose the duty of making new applications of legal principles. The world, in its industries and commerce, is making giant strides; and judicial science must struggle to keep pace with the necessities which are the fruits of such wonderful progress.

Highways and streets are necessities in every civilized community. Their proper maintenance and preservation fall evidently within the purview of police power. Mr. Cooley says (Const. Lim. 588): "The highways, within and through a State, are constructed by the State itself, which has full power to provide all proper regulations of police to govern the action of persons using them, and to make, from time to time, such alterations in these ways as the proper authorities shall deem proper."

In Dillon on Corporations it is said: "§ 518. Public streets, squares, and commons, unless there be some special restriction when dedicated or acquired, are for the public use; and the use is none the less for the public at large, as distinguished from the

Perry v. New Orleans, Mobile & Chattanooga Railroad Company. municipality, because they are situate within the limits of the lat ter, and because the legislature may have given the supervision and control of them to the local authorities. The legislature of the State represents the public at large, and has full and paramount authority over all public ways and public places. To the Commonwealth here,' says Chief Justice GIBSON, 'as to the king in England, belongs the franchise of every highway, as a trustee for the public; and streets, regulated and repaired by the authority of a municipal corporation, are as much highways as are rivers, railroads, canals, or public roads, laid out by the authority of the quarter sessions.'

"§ 519. By virtue of its authority over public ways, the legislature may authorize acts to be done upon them, or legalize obstructions therein, which would otherwise be deemed nuisances. As familiar instances of this may be mentioned the authority to railway, water, telegraph, and gas companies, to use or occupy streets and highways for their respective purposes. And it may be here observed, that whatever the legislature may authorize to be done is of course lawful; and of such acts, done pursuant to authority given, it cannot be predicated that they are nuisances; if they were such without, they cease to be nuisances when having the sanction of, a valid statute."

In Black v. Phila. & Reading R. R., 58 Penn. St. 252, the court said: "The ground on which the plaintiffs found their application is, that this track crosses William, Bath, and Bank streets, at grade, and is a public nuisance, from which the plaintiffs suffer special damage, not shared by their fellow citizens. The track complained of is in certain public streets, and not upon any property of the plaintiffs, and if a nuisance, is a public one, which could be the subject of a public prosecution, which the Commonwealth have not deemed proper to institute. The plaintiffs are therefore bound to make out two things: 1st, that this is a public nuisance; and 2d, that the plaintiffs have sustained special damage, which, if they do not prove, renders the first question immaterial."

In Commonwealth v. Erie & North East R. R., 27 Penn. St. 354, the same court said: "The right of the supreme legislative power to authorize the building of a railroad on a street, or other public highway, is not now to be doubted."

In the People v. Kerr, 27 N. Y. 188, speaking of the streets of New York city, the court said: "So far as the existing public

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