Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow § 214.: Regulations of railroads.— - A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2

Return to Title Page for A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2

Search this Title:

Also in the Library:

Subject Area: Law
Topic: The American Revolution and Constitution

§ 214.: Regulations of railroads.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


§ 214.

Regulations of railroads.—

The police regulation of the management of railroads is extremely common and varied; and, consequently, the exercise of police power over them has more frequently been the subject of litigation. But there is no more need for a judicial determination of the limitations upon police power in this phase of its exercise, than in any other. The same principles govern its exercise in every case. Every one, whether a corporation or a natural person, must so enjoy and make use of his rights as not to injure another; and the State may institute whatever reasonable regulations may be necessary to prevent injury to the public or private persons. Here, as elsewhere, however, the exercise of police power must be confined to those regulations which may be needed, and which do actually tend, to prevent the infliction of injury upon others. And it is a judicial question whether a particular regulation is a reasonable exercise of police power. The public necessity of the exercise of the police power in any case is a matter addressed to the discretion of the legislature; but whether a given regulation is a reasonable restriction upon personal rights is a judicial question.1

A disposition is manifested in some of the cases to claim for the railroad company the application of the same rule of reasonableness, as would be applicable to regulations of the private property of individuals; that is, prohibiting all regulations of railroads and of their property, which would not be applicable generally to the private property of individuals. But the reasonableness or unreasonableness of a police regulation is subject to variation with a change of circumstances, and in the character of the subject of the regulation. A regulation may be reasonable when directed against the use of certain kinds of property, while it would be unreasonable, if applied to other and different kinds of property, the enjoyment or use of which does not threaten the injury, against which the regulation was directed. But there can be no doubt that a corporation cannot be subjected to a regulation, which would not be applicable to a natural person under like circumstances. The police regulations resemble greatly the regulation of the use of the common highways, and a comparison of them, as set forth in the following language of a distinguished judge, will assist in reaching a clear understanding of the scope of police power in the regulation of railroads. In Chicago, B. & Q. R. R. Co. v. Attorney-General of Iowa,1 Dillon, J., says:—

“In all civilized countries the duty of providing and preserving safe and convenient highways to facilitate trade and communication between different parts of the State or community is considered a governmental duty. This may be done by the government directly, or through the agency of corporations created for that purpose. The right of public supervision and control over highways results from the power and duty of providing and preserving them. As to ordinary highways these propositions are unquestioned. But it is denied that they apply to railways built by private capital, and owned by private corporations created for the purpose of building them. Whoever studies the nature and purposes of railways constructed under the authority of the State by means of private capital will see that such railroads possess a twofold character. Such a railway is in part public and in part private. Because of its public character, relation and uses, the judicial tribunals of this country, State and national, have at length settled the law to be that the State, to secure their construction, may exert in favor of the corporation authorized by it to build the road both its power of eminent domain and of taxation. This the State cannot do in respect of occupations or purposes private in their nature. * * * In its public character a railroad is an improved highway, or means of more rapid and commodious communication, and its public character is not divested by the fact that its ownership is private. * * * In its relations to its stockholders, a railroad, or the property in the road and its income is private property, and, subject to the lawful or reserved rights of the public, is invested with the sanctity of other private property. The distinction here indicated marks with general accuracy the extent of legislative control, except where this has been surrendered or abridged by a valid legislative contract. Over the railway as a highway, and in all its public relations, the State, by virtue of its general legislative power, has supervision and control; but over the rights of the shareholders, so far as these are private property, the State has the same power and no greater than over other private property.”1

For the further and more expeditious regulation of railroads, particularly in their relation to their patrons, the States throughout the Union, as well as the Federal government, have created boards of railroad commissioners; their powers of supervision varying with the provisions of each statute. One unvarying distinction, however, is that the national, or United States railway commission, has supervision over the railroads in their relations to interstate commerce only, while the States’ boards of railway commissioners control the relations of the railroads with intrastate commerce, and with the State governments, as the residuary depositary of the police power of the government. The maintenance of these commissions involves considerable expense; and the legislature of South Carolina imposed by statute the entire expenses of their State railway commission upon the railroads operating within the State. The constitutionality of this statute was contested by the railroad on the ground that it was a taking of private property without due process of law. But the United States Supreme Court united with the Supreme Court of South Carolina, in sustaining the constitutionality of the statute.1

As has already been intimated, the number of police regulations of railroads is very great, and the character of them is as varied. For the purpose of illustrating the scope of these regulations, it will only be necessary to refer to the more important ones, which have been passed upon by the courts.

For example, in the exercise of the ordinary police power of the State, it has been held to be reasonable to require all railroads to fence their tracks, not alone for the protection of the live stock of the abutting owners. Indeed, the chief object of the statute is probably to protect the traveling public against accidents, occurring through collision of trains with cattle.2 One exercise of the power to require railroads to fence their tracks does not preclude a second regulation of the same kind, providing for other and different fences.1 And the railroad company can not relieve itself from the obligation to erect and maintain the fence by any contracts with the abutting owners.2 The railroad company is, of course, liable for whatever injury is done to persons or property, in consequence of any neglect in maintaining the fence.3

In the absence of special legislation, the judgment will be confined to the recovery of the actual damages which have been suffered in consequence of the neglect. But the statute may constitutionally make the company liable for double the value of the stock killed by reason of the neglect to properly maintain the fences. This requirement is justified on the same grounds, as is the authority to recover exemplary or punitory damages.4 And it may also be provided by statute that the railroad company may be held liable for all losses of property, occurring in consequence of the neglect of the railroad in the maintenance of the fences, although the owner may be guilty of contributory negligence.1

But there must be some violation of the law, or some act of negligence, on the part of the railroad company, in order that the company may be held liable for damages suffered from the running of trains.2 A statute, which makes a railroad responsible “for all expenses of the coroner and his inquest, and of the burial of all persons who may die on the cars, or who may be killed by collision or other accident occurring to such cars, or otherwise,” is, therefore, properly declared to be unconstitutional, so far as it is applied to cases of loss, in which the company has not been guilty of negligence, or of a violation of some legal duty.1 And where there is no statutory obligation on the railroad to maintain fences along its lines, the general principles of the law as to penning up of cattle prevail, and make a statute unconstitutional, which imposes upon a railroad the responsibility for injury to cattle.2

On the same general principles, statutes are sustained as constitutional which impose upon the railroad companies liability for all injuries to property, which have been occasioned by fires, set or caused by their locomotives.3 And some of these cases hold that it is not unconstitutional to impose upon the railroads an absolute liability for damages from fires, irrespective of the question of negligence, and in the absence of all proof of negligence.4 Of the same character, but not so severe upon the railroads, is the State regulation, that the setting fire to property by a passing locomotive is prima facie evidence of the negligence of the railroads. The statute in question was sustained as a constitutional exercise of the police power by the Supreme Court of Illinois.1 A Maine statute, in imposing this extraordinary liability for fires upon the railroads, provides that the railroads shall become subrogated to the rights of the property owner in and to any fire insurance which may cover the property, which has been destroyed by the locomotive fires; and if the owner has already recovered on the policy, the amount he has received from the insurance company will be deducted from the amount of damages, which has been assessed against the railroad. The constitutionality of the statute has been sustained.2

Laws which modify the common law, so as to make railroads liable to their employees for injuries sustained through the negligence of their fellow-servants, have also been sustained.3

It has also been held to be constitutional to provide by statute that, in all actions against railroads for injuries to stock or other property, resulting from the operation of the trains, a certain attorneys’ fee shall be recoverable of the railroad as a part of the damages.4 But the contrary ruling has been made as to this special allowance of attorneys’ fees by the Supreme Court of the United States,5 and also by the Supreme Court of Michigan, on the ground that it was special legislation which is inhibited by the constitution.1

The State may in like manner regulate the grades of railways generally—changing them when necessary, and, particularly, at the points where they cross highways or other railways—and provide for an apportionment of the expense of making the crossing;2 sometimes throwing the whole expense upon the railroad.

The State may also prescribe the rate of speed at which highways and other railways may be crossed,1 and while running within the corporate limits of a city or town.2 The State may institute other regulations, having the protection of life in view, such as requiring all railroad companies to ring their bell or blow the whistle of the engine on approaching a crossing or highway;1 or to place and keep flagmen at such places, and at such times of the day, when the traffic and the passage of numbers of people make such a regulation reasonable and necessary.2

It is also a lawful exercise of police power to require a railroad to construct a bridge in passing over a public highway, instead of crossing it at the same grade;3 or to prohibit a railroad from constructing its tracks or running cars on any street so near the depot of another railroad, as to interfere with a safe and convenient access to the latter road.1

It has also been held to be constitutional to require railroads, whose tracts intersect, to put in connecting switches, in order to transfer cars from one road to the other.2 And where several railroads, some the lessees of the others, make a common use of the viaduct, upon entering a city, the expense of maintaining such viaduct may be laid entirely upon the lessor companies, without in any way intringing their constitutional rights; particularly, where the contractual relations and liabilities between the lessor and lessee railroads are not disclosed.3

The State may also make all kinds of reasonable regulations for insuring a fair and impartial carriage of all persons and property. The right to regulate the charges of corporations in general has already been fully explained,4 and the railroad companies may be subjected to such regulations, as well as any other corporation. In consequence of the racial prejudice, there is a disposition in some parts of the country to make invidious distinctions in the accommodations provided for the white and black passengers. While it is in violation of the common law rights of the negro, as well as of the constitutional and statutory provisions, which guarantee to the negro equal privileges in the use and enjoyment of the public conveyances, hotels, and places of amusement,1 if the railroad company should deny to him the use of the first-class and sleeping cars;2 yet it is lawful for them to provide separate cars for the two races, provided their appointments and conveniences are equally good.3

In Louisville, N. & O., etc., Ry. Co. v. Mississippi,4 the court say:—

“It is claimed by the plaintiff in error that, in any mixed community, the reputation of belonging to the dominant race, in this instance, the white race, is property, in the same sense that a right of action or of inheritance is property. Conceding this to be so for the purposes of this case, we are unable to see how this statute deprives him of, or in any way affects his right to, such property. If he be a white man and assigned to a colored coach (sic) he may have his action for damages against the company for being deprived of his so-called property. Upon the other hand, if he be a colored man and be so assigned, he has been deprived of no property since he is not lawfully entitled to the reputation of being a white man.

“In this connection it is also suggested by the learned counsel for the plaintiff in error that the same argument, that will justify the State legislature in requiring railways to provide separate accommodations for the two races, will also authorize them to require separate cars for people whose hair is of a certain color, or who are aliens or who belong to certain nationalities, or to enact laws requiring colored people to walk upon one side of the street and white people upon the other, or requiring white men’s houses to be painted white and colored men’s black, etc.; upon the theory, that one side of the street is as good as the other, or that a house or vehicle of one color is as good as one of another color. The reply to all this is that every exercise of police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class. Thus, in Yick Wo v. Hopkins, 118 U. S. 356, it was held by this court that a municipal ordinance of the city of San Francisco, to regulate the carrying on of public laundries within the limits of the municipality, violated the provisions of the constitution of the United States, if it conferred upon the municipal authorities arbitrary power, at their own will and without regard to discretion in the legal sense of the term, to give or withhold consent as to persons or places, without regard to the competency of the persons applying or the propriety of the places selected for the carrying on of the business. It was held to be a covert attempt on the part of the municipality to make an arbitrary and unjust discrimination against the Chinese race.” * * *

“So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs and traditions of the people, and with a view to the promotion of their comfort and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress, requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of State legislatures.”

In Plessy v. Ferguson,1 the court says, in part:—

“The distinction between laws interfering with the political equality of the negro and those requiring the separation of the two races in schools, theaters and railway carriages, has been frequently drawn by this court. Thus in Strander v. West Virginia,2 it was held that a law of West Virginia, limiting to white male persons twenty-one years of age and citizens of the State, the right to sit upon juries, was a discrimination which implied a legal inferiority in civil society, which lessened the security of the right of the colored race, and was a step toward reducing it to a condition of servility. Indeed the right of a colored man that, in the selection of jurors to pass upon his life, liberty and property, there shall be no exclusion of his race and no discrimination against them because of color, has been asserted in a number of cases.3 So where the law of a particular State or the charter of a particular railway corporation has provided that no person shall be excluded from the cars on account of color, we have held that persons of color should travel in the same car as white ones, and that the enactment was not satisfied by the company’s providing cars assigned exclusively to white persons.4

“Upon the other hand, where a statute of Louisiana required those engaged in the transportation of passengers among the States to give to all persons traveling within that State, equal rights and privileges in all parts of the vessel, without distinction on account of race or color, and subjected to an action for damages the owner of such vessel, who excluded colored passengers on account of their color from the cabin set aside by him for the use of whites, it wsa held to be, so far as it applied to interstate commerce, unconstitutional and void.”1

On the same principle, it has been held that the railroads are not required to admit whites and blacks to the same waiting room at the stations, provided the accommodations are not unequal.2

It is also held to be a lawful exercise of police power to require railroads to draw the cars of other corporations as well as their own, at reasonable times and for a reasonable compensation, to be agreed upon by the parties or fixed by the railroad commissioners.3

In order that the inhabitants of the country, through which a railroad passes, may be assured a reasonable use of the regular trains, the legislature may determine at what stations, and for what length of time, all trains shall be required to stop;4 and all agreements of railroad companies, which limit the location of stations, are void because against public policy.5

It has, likewise, been held to be a reasonable exercise of police power to require railroads to keep posted at every station the times of arrival and departure of the trains, and to announce whether the trains are on time; and, when late, how much behind time.1 Laws have also been sustained, which required railroads to light up their roads at night,2 and which regulated the construction of switches, prohibiting certain kinds;3 which regulated the heating of cars, forbidding the use of stoves;4 which prohibited smoking in street cars;5 which required street car companies, operating electric, steam or cable cars, to provide on the front platform an inclosure for the protection of the motorman from unnecessary exposure to the weather;6 and which require railroads, on live-stock trains, to feed and water the stock while in course of transportation.7 It has also been held to be competent for a State to prohibit the running of freight trains on Sundays.8

So, also, has it been held to be a constitutional exercise of police power, in compelling engineers of railroads to submit to examination for color blindness, to require the railroads to bear the expense of the examination.9 And it has been declared to be reasonable and constitutional, in the regulation of the safe transportation and delivery of freight, to impose penalties for the improper refusal of the delivery of freight to the proper consignee;10 and to require the railroad, if the consignee does not call for the goods within twenty days after notice of their arrival, to turn the same over for safe-keeping to a warehouseman or storage company.11

With a view to prohibit the combination of railroads into extensive monopolistic systems of railroads, with the consequent abolition of competition, it is a rather common regulation to prohibit the consolidation of competing roads; and the regulation has been held to be a constitutional exercise of the police power.1 The power to lease a railroad is equally subject to police regulation and limitation. The State may, for example, require all leases, in order to be valid, to be recorded.2

The regulation of the issue by railroads of tickets is not uncommon, and is sustained, whenever it is a reasonable one. Laws, which require the issue of mileage tickets, at certain rates, have been sustained;3 in one case, requiring that the mileage ticket must be issued in the name of the purchaser, his wife and children, and must be receivable for two years from date.4 State laws sometimes require that stop-over privileges shall be allowed to the holder of tickets.5

It would be impossible to mention in detail all the police regulations, to which railroad corporations are now subjected in the interests of the public. The test of their constitutionality is, in every case, whether they are designed, and do tend, to protect some public or private right from the injurious act of the railroad company. And the most complete legislation of this kind is that which provides for the general supervision of the railroads by commissioners, appointed by the State, and given full power to make inspection of the working and management of the roads. The constitutionality of this State supervision cannot well be doubted. “Our whole system of legislative supervision through the railroad commissioners, acting as a State police over railroads, is founded upon the theory that the public duties devolved upon railroad corporations by their charter are ministerial, and, therefore, liable to be thus enforced.”1

CHAPTER XVI.

THE LOCATION OF POLICE POWER IN THE FEDERAL SYSTEM OF GOVERNMENT.

SECTION215.The United States government one of enumerated powers.
216.Police power generally resides in the States.
217.Regulations affecting interstate commerce.
218.License tax upon drummers and peddlers.
219.Taxation of interstate commerce.
220.State regulation and prohibition of interstate commerce, particularly in articles of merchandise.
221.State regulation of railroads and other common carriers, and of their business, when an interference with interstate commerce.
222.The jurisdiction of anti-trust laws, national and State, as affected by the interstate commerce clause.
223.Control of navigable streams.
224.Regulation of harbors—Pilotage laws.
225.National and State quarantine laws.
226.Regulation of weights and measures.
227.Counterfeiting of coins and currencies.
228.Regulation of the sale of patented articles.
229.War and rebellion.
230.Regulation of the militia.
231.Taxation.
232.Regulation of offenses against the laws of nations.
233.The exercise of police power by municipal corporations.

[1]“What are reasonable regulations, and what are the subjects of police powers must necessarily be judicial questions. The law-making power is the sole judge when the necessity exists, and when, if at all, it will exercise the right to enact such laws.

“Like other powers of government, there are constitutional limitations to the exercise of the police power. The legislature cannot, under the pretense of exercising this power, enact laws not necessary to the preservation of the health and safety of the community that will be oppressive and burdensome upon the citizen. If it should prohibit that which is harmless in itself, or command that to be done which does not tend to promote the health, safety or welfare of society, it would be an unauthorized exercise of power, and it would be the duty of the court to declare such legislation void.

“An ordinance of the city which required a railroad to keep flagman by day and red lantern by night at a certain street crossing, when the company had only a single track, over which only its usual trains passed, and where it did not appear that the crossing was unusually dangerous, or more so than ordinary crossings, was held not to be a reasonable requirement, and therefore within the constitutional limitation on the exercise of the police power.

“A regulation that would require a railroad to place a flagman at such places where danger to public safety, in judgment of prudent persons, might be apprehended at any time, would be a reasonable one.” Toledo, etc., R. R. v. Jacksonville, 67 Ill. 37. See, also, Chicago & Alton R. R. Co. v. People, 67 Ill. 11; State v. East Orange, 12 Vroom, 127; City of Erie v. Erie Canal Co., 59 Pa. St. 174; Phila. W. B. R. R. Co. v. Bowers, 4 Houst. 506; Ladd v. Southern C. P. & M. Co., 53 Tex. 172; Sloan v. Pac. R. R. Co., 61 Mo. 24.

[1]9 West. Jur. 347.

[1]“We apprehend there can be no manner of doubt that the legislature may, if they deem the public good requires it, of which they are to judge, and in all doubtful cases their judgment is final, require the several railroads in the State to establish and maintain the same kind of police, which is now observed upon some of the more important roads in the country for their own security, or even such a police as is found upon the English railways and those upon the continent of Europe. No one ever questioned the right of the Connecticut legislature to require trains upon all their roads to come to a stand before passing draws in bridges; or of the Massachusetts legislature to require the same thing before passing another railroad. And by parity of reason may all railways be required so to conduct themselves, as to other persons, natural or corporate, as not unreasonably to injure them or their property. And since the business of railways is specially dangerous, they may be required to bear the expense of erecting such safeguards, as will render it ordinarily safe to others, as is often required of natural persons under such circumstances.

“There would be no end of illustrations upon this subject, which in detail are more familiar to others than to us. It may be extended to the supervision of the track, tending switches, running upon the time of other trains, running roads with a single track, using improper rails, not using proper precautions by way of safety beams in case of the breaking of axle trees, number of brakemen upon train with reference to number of cars, employing intemperate or incompetent engineers and servants, running beyond a given rate of speed and a thousand similar things, most of which have been made the subject of legislation or judicial determination, and all of which may be.” Thorpe v. Rutland, etc., R. R., 27 Vt. 140. See, also, Richmond, F. & P. R. R. Co. v. City of Richmond, 26 Gratt. 83; s. c. 96 U. S. 521; People v. Boston, etc., R. R. Co., 70 N. Y. 569; State v. East Orange, 12 Vroom, 127; Phila., W. & B. R. R. Co. v. Bowers, 5 Houst. 506; Cin. H. & D. R. R. Co. v. Sullivan, 32 Ohio St. 152; Pittsburg, C. & St. L. R. R. Co. v. Brown, 67 Ind. 45 (33 Am. Rep. 73); Toledo, W., etc., R. R. Co. v. Jacksonville, 67 Ill. 37; Galveston, etc., R. R. Co. v. Gierse, 51 Tex. 189.

[1]Charlotte C. & A. Ry. Co. v. Gibbes, 142 U. S. 386; s. c. 27 S. C. 385.

[2]Minneapolis & St. L. Ry. Co. v. Emmons, 149 U. S. 364; Minneapolis & St. L. Ry. Co. v. Nelson, 149 U. S. 368; Sawyer v. Vt., etc., R. R. Co., 105 Mass. 196; Wilder v. Maine Cent. R. R. Co., 65 Me. 332; Smith v. Eastern R. R. Co., 35 N. H. 336; Bulkley v. N. Y., etc., R. R. Co., 27 Conn. 497; Bradley v. Buffalo, etc., R. R. Co., 34 N. Y. 429; Penn. R. R. Co. v. Riblet, 66 Pa. St. 164 (5 Am. Rep. 360); Thorpe v. Rutland, etc., R. R. Co., 27 Vt. 140; Indianapolis, etc., R. R. Co. v. Marshall, 27 Ind. 300; New Albany, etc., R. R. Co. v. Tilton, 12 Ind. 10; Indianapolis, etc., R. R. Co. v. Kercheval, 16 Ind. 84; Toledo, etc., R. R. Co. v. Fowler, 22 Ind. 316; Indianapolis, etc., R. R. Co. v. Parker, 29 Ind. 471; Ohio & Miss. R. R. Co. v. McClelland, 25 Ill. 140; Gorman v. Pac. R. R. Co., 26 Mo. 441; Jones v. Galena, etc., R. R. Co., 16 Iowa, 6; Winona, etc., R. R. Co. v. Waldron, 11 Minn. 575; Blewett v. Wyandotte, etc., R. R. Co., 72 Mo. 583; Kan. Pac. Ry. Co. v. Mower, 16 Kan. 573; Mo. Pac. Ry. Co. v. Harrelson, 44 Kans. 252; Louisville & Nashville R. R. Co. v. Burke, 6 Caldw. 45. But see, contra, Ohio & M. Ry. Co. v. Todd (Ky.), 15 S. W. 56.

[1]Gillam v. Sioux City, etc., R. R. Co., 26 Minn. 268. It has also been held to be a constitutional exercise of the police power to require the railroads to maintain fences of sufficient height and strength, to effectually keep cattle from straying upon the tracks. Beckstead v. Montana Union Ry. Co. (Mont.), 47 P. 795. And, so, likewise, to require the erection of cattle guards, whenever the adjoining landowner demands them. Birmingham Mineral Ry. Co. v. Parsons, 100 Ala. 662.

[2]New Albany, etc., R. R. Co. v. Tilton, 12 Ind. 3; New Albany, etc., R. R. Co. v. Maiden, 12 Ind. 10. See Poler v. N. Y. Cent. R. R. Co., 16 N. Y. 476; Shepherd v. Buffalo, N. Y. & Erie R. R. Co., 35 N. Y. 641.

[3]As to what degree of care is required of railroads in this connection, see Chicago, etc., R. R. Co. v. Barsie, 55 Ill. 226; Antisdel v. Chicago, etc., R. R. Co., 26 Wis. 145; Lemmon v. Chicago, etc., R. R. Co., 32 Iowa, 151. It has been held not to be a taking of property without due process of law for a statute to allow damages for the diminution of value in a farm, which results from the failure of the company to fence its road, and to construct proper cattle-guards. Minneapolis & St. L. Ry. Co. v. Emmons, 149 U. S. 364; Minneapolis & St. L. Ry. Co. v. Nelson, 149 U. S. 368. A repeal by statute of a provision of the charter of a railroad, that all suits for damages done by the trains to stock must be brought within six months after the infliction of the damage, does not in a constitutional sense impair the obligation of a contract. Louisville & N. Ry. Co. v. Williams (Ky.), 45 S. W. 229.

[4]Cairo, etc., R. R. Co. v. People, 92 Ill. 97 (34 Am. Rep. 112); Barnett v. Atlantic, etc., R. R. Co., 68 Mo. 56 (30 Am. Rep. 773); Spealman v. Railroad Co., 71 Mo. 434; Humes v. Mo. Pac. R. R. Co., 82 Mo. 22 (52 Am. Rep. 369); Tredway v. Railroad Co., 43 Iowa, 527; Welsh v. Chicago, B. & Q. R. R. Co., 53 Iowa, 632; Little Rock & Ft. Scott R. R. Co. v. Payne, 33 Ark. 816 (34 Am. Rep. 55). Contra, Madison, etc., R. R. Co. v. Whiteneck, 8 Ind. 217; Indiana Cent. R. W. Co. v. Gapen, 10 Ind. 292; Atchison & Neb. R. R. Co. v. Baty, 6 Neb. 37 (29 Am. Rep. 356); Grand Island & W. C. Ry. Co. v. Swinbank, 51 Neb. 521; Rio Grande W. Ry. Co. v. Vaughn, 3 Colo. App. 465; Rio Grande W. Ry. Co. v. Whitson, 4 Colo. App. 426; 36 P. 159; Denver & R. G. Ry. Co. v. Outcalt, 2 Colo. App. 443; 31 P. 177; Denver & R. G. Ry. Co. v. Davidson, 2 Colo. App. 443; 31 P. 181; Denver & R. G. Ry. Co. v. Baker, 2 Colo. App. 443; 31 P. 181.

[1]Corwin v. N. Y. & Erie R. R. Co., 13 N. Y. 42; Horn v. Atlantic, etc., R. R. Co., 35 N. H. 169; O’Bannon v. Louisville, etc., R. R. Co., 8 Bush. 348; Jeffersonville, etc., R. R. Co. v. Nichols, 30 Ind. 321; Jeffersonville, etc., R. Co. v. Parkhurst, 34 Ind. 501; Illinois Cent. R. R. Co. v. Arnold, 47 Ill. 173; Hinman v. Chicago, etc., R. R. Co., 28 Iowa, 491; Quackenbush v. Wis. & N. Ry. Co., 71 Wis. 472.

[2]Birmingham Mineral Ry. Co. v. Parsons, 100 Ala. 662; Denver & R. G. Ry. Co. v. Outcalt, 2 Colo. App. 443; 31 P. 177; Denver & R. G. Ry. Co. v. Davidson, 2 Colo. App. 443; Denver & R. G. Ry. Co. v. Baker, 2 Colo. App. 443; Rio Grande & W. Ry. Co. v. Witson, 4 Colo. App. 426; Wadsworth v. Union Pac. Ry. Co., 18 Colo. 600; Union Pac. Ry. Co. v. Kerr, 19 Colo. 273; Schenck v. Union Pac. Ry. Co. (Wyo.), 40 P. 840; Caterill v. Union Pac. Ry. Co., 2 Idaho, 540; Jensen v. Union Pac. Ry. Co., 6 Utah, 253; Jolliffe v. Brown, 14 Wash. 155 (44 P. 149). In State v. Divine, 98 N. C. 778, the statute, which was declared to be unconstitutional, only made the killing of live stock by the locomotive prima facie evidence of negligence.

[1]Ohio & Mississippi R. R. Co. v. Lackey, 78 Ill. 55 (20 Am. Rep. 259). But see Pennsylvania R. R. Co. v. Riblet, 66 Pa. St. 164 (5 Am. Rep. 360), in which it was held to be competent for the legislature to compel an existing railroad to repair all fences along its route that may be destroyed by fire from its engines. See, to the same effect, Lyman v. Boston, etc., R. R. Co., 4 Cush. 288; Gorman v. Pac. R. R. Co., 26 Mo. 441; Rodemacher v. Milwaukee, etc., R. R. Co., 41 Iowa, 297 (20 Am. Rep. 592).

[2]Sweetland v. Atchison, T. & S. F. Ry. Co. (Colo.), 43 P. 1006; Wadsworth v. Union Pac. Ry. Co., 18 Colo. 600; Jolliffe v. Brown, 14 Wash. 155; 44 P. 149; Navigation Co. v. Smalley, 1 Wash. 206.

[3]St. Louis & S. F. Ry. Co. v. Mathews, 161 U. S. 1; Mathews v. St. Louis & S. F. Ry. Co., 121 Mo. 298; Campbell v. Mo. Pac. Ry. Co., 121 Mo. 340; Lumberman’s Mut. Ins. Co. v. Kansas City, Ft. S. & M. Ry. Co., 149 Mo. 165; McCandless v. Richmond & D. Ry. Co., 38 S. C. 103; Mobile Ins. Co. v. Columbia & Greenville Ry. Co., 41 S. C. 408; Lipfeld v. Charlotte C. & A. Ry. Co., 41 S. C. 285; Union Pac. Ry. Co. v. DeBusk, 12 Colo. 294; Union Pac. Ry. Co. v. Arthur, 2 Colo. App. 159; Union Pacific Ry. Co. v. Tracy, 19 Colo. 331; Lake Erie & W. Ry. Co. v. Falk, 16 Ohio, C. C. 125; Baltimore & Ohio R. R. Co. v. Kreager (Ohio), 56 N. E. 203; Cleveland L. & W. Ry. Co. v. Ringley, id., Lake Erie & W. Ry. Co. v. Falk, id.

[4]McCandless v. Richmond & D. Ry. Co., 38 S. C. 103; Lipfeld v. Charlotte, C. & A. Ry. Co., 41 S. C. 285; Campbell v. Mo. Pac. Ry. Co., 121 Mo. 340.

[1]Baltimore & Ohio S. W. Ry. Co. v. Tripp, 175 Ill. 251.

[2]Leavitt v. Canadian Pac. Ry. Co., 90 Me. 153; Choctaw, O. & G. Ry. Co. v. Alexander (Okl.), 52 P. 944.

[3]Mo. Pac. Ry. Co. v. Mackey, 127 U. S. 205; Minneapolis & St. L. Ry. Co. v. Herrick, 127 U. S. 210; Pittsburg, C. C. & St. L. Ry. Co. v. Montgomery, 152 Ind. 1.

[4]Peoria &c. R. R. Co. v. Duggan, 109 Ill. 537 (50 Am. Rep. 619); Perkins v. St. Louis, I. M. & S. Ry. Co., 103 Mo. 52; Briggs v. St. Louis, I. M. & S. Ry. Co., 111 Mo. 168; Atchison T. & S. F. Ry. Co. v. Mathews, 58 Kans. 447; Gulf, C. & S. F. Ry. Co. v. Ellis, 87 Tex. 19.

[5]Gulf, C. & S. F. Ry. Co. v. Ellis, 165 U. S. 150; reversing s. c. 87 Tex. 19.

[1]Wilder v. Chicago & W. M. Ry. Co., 70 Mich. 382; Schut v. Chicago & W. M. Ry. Co., 70 Mich. 433; Lafferty v. Chicago & W. M. Ry. Co., 71 Mich. 35.

[2]Fitchburg R. R. Co. v. Grand Junction R. R. Co., 1 Allen, 552; s. c. 4 Allen, 198; Pittsburg, etc., R. R. Co. v. S. W. Penn. R. R. Co., 77 Pa. St. 173; Chicago M. & St. P. Ry. Co. v. City of Milwaukee, 97 Wis. 418; Wabash Ry. Co. v. City of Defiance, 167 U. S. 88; New York & N. E. Ry. Co. v. Town of Bristol, 151 U. S. 556; affirming s. c. 62 Conn. 527; Woodruff v. Catlin, 54 Conn. 277; Westbrook’s Appeal, 57 Conn. 95; N. Y. & N. E. Ry. Co.’s Appeal, 58 Conn. 532; Woodruff v. Railroad Co., 59 Conn. 63; State’s Attorney v. Branford, 59 Conn. 402; N. Y. & N. E. Ry. Co. v. Waterbury, 60 Conn. 1; Middletown v. N. Y. & H. Ry. Co., 62 Conn. 492; Mooney v. Clark, 69 Conn. 241; Selectmen of Norwood v. New York & N. E. Ry. Co., 161 Mass. 259. In Woodruff v. Catlin, 54 Conn. 277, the Supreme Court of Connecticut stated in part: “The act, in scope and purpose, concerns protection of life. Neither in intent nor fact does it increase or diminish the assets either of the city or of the railroad corporations. It is the exercise of the governmental power and duty to secure a safe highway. The legislature having determined that the intersection of two railways with a highway in the city of Hartford at grade is a nuisance dangerous to life, in the absence of action on the part either of the city or of the railroads, may compel them severally to become the owners of the right to lay out new highways and new railways in such land and in such manner as will separate the grade of the railways from that of the highway at intersection; may compel them to use the right for the accomplishment of the desired end; may determine that the expense shall be paid by either corporation alone or in part by both; and may enforce obedience to its judgment. That the legislature of this State has the power to do all this, for the specified purpose, and to do it through the instrumentality of a commission, it is now only necessary to state, not to argue.” And, in affirming the judgment of the Supreme Court of Connecticut, in the case of N. Y. & N. E. Ry. Co. v. Town of Bristol, the Supreme Court of the United States, after a very full statement of the arguments of the counsel for the railroad, declared emphatically in favor of the right of the State, if it should see fit, to impose upon the railroad the entire expense of a change of grade in crossings; Chief Justice Fuller making use of the following language: “The conclusions of this court have been repeatedly announced to the effect that though railroad corporations are private corporations, as distinguished from those created for municipal and governmental purposes, their uses are public, and they are invested with the right of eminent domain, only to be exercised for public purposes; that therefore they are subject to legislative control in all respects necessary to protect the public against danger, injustice, and oppression; that the State has power to exercise this control through boards of commissioners; that there is no unjust discrimination and no denial of the equal protection of the laws in regulations applicable to all railroad corporations alike; nor is there necessarily such denial nor an infringement of the obligation of contracts in the imposition upon them in particular instances of the entire expense of the performance of acts required in the public interest, in the exercise of legislative discretion; nor are they thereby deprived of property without due process of law, by statutes under which the result is ascertained in a mode suited to the nature of the case, and not merely arbitrary and capricious; and that the adjudication of the police power of the State, that, in such particulars, a law enacted in the exercise of the police power of the State, is valid, will not be reversed by this court on the ground of an infraction of the constitution of the United States. Railroad Co. v. Alabama, 128 U. S. 96; Georgia R. & B. Co. v. Smith, 128 U. S. 174; Railway Co. v. Beckwith, 129 U. S. 26; Dent v. West Virginia, 129 U. S. 114; Railroad Co. v. Gibbes, 142 U. S. 386; Railroad Co. v. Emmons, 149 U. S. 364.” But see People v. Detroit, G. H. & M. Ry. Co., 79 Mich. 471, in which it was held that it was unreasonable, after a railroad had for forty years maintained at its own expense a farm crossing, convenient for the use of every one in the neighborhood, to require the railroad to provide and maintain at its own expense a residence crossing in immediate proximity to a house which has been subsequently built, so that the railroad tract shall be between the residence and the highway. And, so, also, it has been held in Texas, that a law which requires railroad companies to make farm crossings within the inclosures of private landowners, is unconstitutional, so far as it is applied to companies, who have acquired their right of way and had fenced in their tracks, prior to the enactment of the statute. San Antonio & A. P. Ry. Co. v. Bell (Tex. Civ. App.), 32 S. W. 374. These two Western cases are to be distintinguished from the cases cited above, in that they involve the provision for private farm crossings for the more or less exclusive benefit of private landowners; while the Eastern cases, above cited, are more reasonable, in that they relate to the intersection with the railroad tracks of streets and highways.

In Nebraska, an ordinance requiring two railroads to change specific portions of a viaduct, was sustained. Chicago B. & Q. Ry. Co. v. State, 47 Neb. 549.

[1]Mobile, etc., R. R. Co. v. State, 51 Miss. 137.

[2]Rockford, etc., R. R. Co. v. Hillmer, 72 Ill. 235; Chicago, Rock Island, etc., R. R. Co. v. Reidy, 66 Ill. 43; Mobile & Ohio R. R. Co. v. State, 51 Miss. 137; Horn v. Chicago, etc., R. R. Co., 38 Wis. 463; Haas v. Chicago & N. W. R. R. Co., 41 Wis. 44; Erb v. Morasch (Kans. App.), 54 P. 323; 60 Kans. 251.

[1]Veazie v. Mayo, 45 Me. 560; s. c. 49 Me. 156; Commonwealth v. Eastern R. R. Co., 103 Mass. 254 (4 Am. Rep. 555); Bulkley v. N. Y. & N. H. R. R. Co., 27 Conn. 486; Stuyvesant v. Mayor, etc., of New York, 7 Cow. 588; Pittsburg, Cin. & St. L. R. R. Co. v. Brown, 67 Ind. 45 (33 Am. Rep. 73); Galena v. Chicago, U. R. R. Co. v. Dill, 22 Ill. 264; Ohio & M. R. R. Co. v. McClelland, 25 Ill. 140; Chicago, etc., R. R. Co. v. Triplett, 38 Ill. 482; Clark’s Administrator v. Hannibal & St. Jo. R. R. Co., 36 Mo. 202; Tobias v. Mich. Cent. Ry. Co., 103 Mich. 330.

[2]Toledo, etc., R. R. Co. v. Jacksonville, 67 Ill. 37; Lake Shore & M. S. Ry. Co. v. Cincinnati, S. & C. Ry. Co., 30 Ohio St. 604.

[3]People v. Boston & Albany R. R. Co., 70 N. Y. 569. But it would be unconstitutional to require railroad companies to build crossings at the intersection of their road with a highway, which had been constructed after the railroad has been built. City of Erie v. Erie Canal Co., 59 Pa. St. 174; Ill. Cent. R. R. Co. v. Bloomington, 76 Ill. 447. See ante, pp. 997-999, same section, on the regulation of grade crossings in general.

[1]Portland, S. & P. R. R. Co. v. Boston and Maine R. R. Co., 65 Me. 122; State ex rel. Abbott v. Hicks, Judge, 44 La. Ann. 770; The Sue, 22 Fed. 843; Logwood v. Memphis, etc., R. R. Co., 23 Fed. 318; McGuinn v. Forbes, 37 Fed. 639; Houck v. South Pac. Ry., 38 Fed. 226; Heard v. Ga. R. R. Co., 3 Int. Com. Com’r, 111; s. c. 1 Ibid. 428; Day v. Owen, 5 Mich. 520; Louisville, N. O. & T. Ry. Co., 66 Miss. 662; State v. Smith, 100 Tenn. 494; Chesapeake & Ohio Ry. Co. v. Commonwealth (Ky. ’99), 51 S. W. 160; Chesapeake, etc., R. R. Co. v. Wells, 85 Tenn. 613; Memphis, etc., R. R. Co. v. Benson, 85 Tenn. 627; People v. King, 110 N. Y. 418.

[2]Jacobson v. Wisconsin, M. & St. P. Ry., 71 Minn. 519.

[3]Chicago, B. & Q. Ry. Co. v. State, 170 U. S. 57.

[4]See, ante, § 212. The State may require all railroad companies to post up in its stations schedules of the rates of fare and freight, without violating any constitutional provision. Railroad v. Fuller, 17 Wall. 560.

[1]As to the constitutionality of these laws in general, see, ante, § 95.

[2]Hall v. De Cuir, 95 U. S. 485; Alexander & Washington R. R. Co. v. Brown, 17 Wall. 445; Chicago & N. W. Ry. Co. v. Williams, 55 Ill. 185; Coger v. N. W. Union Packet Co., 37 Iowa, 145.

[3]West Chester & P. R. R. Co. v. Miles, 55 Pa. St. 209; Central R. R. Co. v. Green, 86 Pa. St. 421; Chicago & N. W. Ry. Co. v. Williams, 55 Ill. 185.

[4]133 U. S. 587.

[1]163 U. S. 537.

[2]100 U. S. 303.

[3]Virginia v. Rives, 100 U. S. 313; Neal v. Delaware, 103 U. S. 370; Bush v. Kentucky, 107 U. S. 110; Gibson v. Mississippi, 162 U. S. 565.

[4]Railway Company v. Brown, 17 Wall. 445.

[1]Hall v. De Cuir, 95 U. S. 485.

[2]Smith v. Chamberlain, 38 S. C. 529.

[3]Rae v. Grand Trunk Ry. Co., 14 Fed. Rep. 401.

[4]Railroad Commissioners v. Portland, etc., R. R. Co., 63 Me. 269 (18 Am. Rep. 208); State v. New Haven, etc., R. R. Co., 43 Conn. 351; Davidson v. State, 4 Tex. Ct. App. 545 (30 Am. Rep. 166); Chicago & Alton R. R. Co. v. People, 105 Ill. 657; Illinois Cent. Ry. Co. v. People, 143 Ill. 434; State v. Kansas City, Ft. S. & G. Ry. Co., 32 Fed. 722; Gladson v. State of Minnesota, 166 U. S. 427; s. c. 57 Minn. 387; Lake Shore & M. S. Ry. Co. v. Ohio, 173 U. S. 285.

[5]St. Joseph & Denver City R. R. Co. v. Ryan, 11 Kan. 602 (15 Am. Rep. 357); Marsh v. Fairburg, etc., R. R. Co., 64 Ill. 414 (16 Am. Rep. 564); St. Louis, etc., R. R. Co. v. Mathers, 71 Ill. 592 (22 Am. Rep. 122).

[1]Pennsylvania Ry. Co. v. State, 142 Ind. 428; State v. Pennsylvania Ry. Co., 133 Ind. 700; State v. Ind. & I. S. Ry. Co., 133 Ind. 69.

[2]Village of St. Bernard v. C. C. C. & St. L. Ry. Co., 4 Ohio L. D. 371.

[3]Jones v. Ala. & V. Ry. Co., 72 Miss. 220.

[4]New York, N. H. & H. Ry. Co. v. State of New York, 165 U. S. 628, 632.

[5]State v. Heidenhain, 42 La. Ann. 483.

[6]State v. Smith, 58 Minn. 35; State v. Hoskins, 58 Minn. 35.

[7]Gulf, C. & S. F. Ry. Co. v. Gray (Tex. Civ. App.), 24 S. W. 837.

[8]State v. Balt. & Ohio R. R. Co., 24 W. Va. 783 (49 Am. Rep. 290).

[9]Nash. C. & St. L. Ry. Co. v. Alabama, 128 U. S. 96.

[10]Ft. Worth & D. Ry. Co. v. Lillard (Tex.), 16 S. W. 654.

[11]State v. Chicago, M. & St. P. Ry. Co., 68 Minn. 381; State v. Great Northern Ry. Co., 68 Minn. 381; State v. Chicago Great Western Ry. Co., 68 Minn. 381; State v. Minneapolis, St. P., etc., Ry. Co., 68 Minn. 381.

[1]Pennsylvania Ry. Co. v. Com. (Pa.), 7 A. 368; Gulf, C. & S. F. Ry. Co. v. State, 72 Tex. 404; Louisville & N. Ry. Co. v. Commonwealth (Ky.), 31 S. W. 476. See, Alexandria Bay Steamship Co. v. N. Y. C. & H. Ry. Co., 45 N. Y. S. 1091, in which, in the interpretation of such a law, a distinction was made between the combination of competing parallel lines, and the arrangements for continuous transportation, which might be made between connecting lines.

[2]Commonwealth v. Chesapeake & O. Ry. Co. (Ky.), 40 S. W. 250.

[3]Dillon v. Erie Ry. Co., 43 N. Y. S. 320; Beardsley v. N. Y. L. E. & W. Ry. Co., 44 N. Y. S. 175.

[4]Smith v. Lake Shore & M. S. Ry. Co., 114 Mich. 460.

[5]Lafarier v. Grand Trunk Ry. of Canada, 84 Me. 286; Georgia R. R. & Bkg. Co. v. Clarke, 97 Ga. 706.

[1]Railroad Commissioners v. Portland, etc., R. R. Co., 63 Me. 269 (18 Am. Rep. 208).