Western Union Telegraph Co. v. Burlington Traction Co.

Watson, J. It is contended by the petitionee that the order of the public service commission should be set aside for three reasons: (1) Because it is beyond the scope of the statutory authority delegated to the commission; (2) because it is beyond the constitutional powers of the commission; (3) because it is so unreasonable, that it comes “within the elementary rule that the substance, and not the shadow, determines the validity of the exercise of the power.” No other question is within the appellant’s brief. I. By statute the findings of fact by the commission have the force and effect of the reports of special masters in courts of equity, whenever the cause is taken by appeal to this Court. And any party who feels himself aggrieved by the final order, judgment or decree of the commission is given the right of appeal for the correction of any errors excepted to in its proceedings, or in the form or substance of its orders, judgments and decrees, on the facts found and reported by the commission. P. S. 4598, 4599, as amended by Sec. 1, No. 116, Laws of 1908. The report states that both parties to this proceeding are corporations subject to the supervision of the commission under No. 116 of the Acts of 1908, and the lines of said parties, which — 514 — are described and designated in the report and order, are used by them in service to the public in and about the business carried on by them in this State. No exception was taken to either of these findings. .Each of these corporations, though private in character, is upon the findings a public service corporation carrying on business in this State. Neither the charter of the petitionee, nor any part of it, is before us, and notice of the provisions thereof will not be judicially taken. Briggs v. Whipple, 7 Vt. 15; Village of Winooski v. Gokey, 49 Vt. 282. In these circumstances we think the above findings are the determinations of mixed questions of law and fact, and are conclusive as showing that the petitionee falls within the provisions of section three of the Act mentioned. By section nine of that Act, the public service commission is given jurisdiction to render judgment and make orders and decrees in all matters provided for in the charter of any corporation owning or operating any plant, line or property subject to supervision under the Act, and is given like jurisdiction in all matters respecting: “III. The manner of operating and conducting any business subject to supervision under this act, so as to be reasonable and expedient, and to promote the safety, convenience and accommodation of the public.” And “Y. The sufficiency and maintenance of proper systems, plants, conduits, appliances, wires and exchanges, and when the public safety and welfare require the location of such wires or any portion thereof underground.” The provisions of these two clauses are sufficiently broad to confer jurisdiction upon the commission to hear and determine the matters here involved as shown by the record, and to render judgment, make orders and decrees therein. II. It is urged that the order made is in excess of the constitutional powers of the commission, in that it is confiscatory of the property of 'the petitionee, and is a taking of it without due process of law, in violation of 'the 5th and the 14th Amendments of the Constitution of the United States. The report shows that, by written contract entered into with the Rutland Railroad Company on February 23, .1910, and before the petitionee had taken any steps looking to the construction if its high tension line or the acquisition of any real estate or rights incident thereto, the petitioner acquired the right to maintain its telegraph poles and wires at the places within the — 515 — railroad right of way, and in the manner, stated in the report, for the period of twenty-five years from January 1, 1910; that the petitioner’s poles and wires had been there located and erected for a considerable period prior to the execution of the contract; that the petitionee erected its high tension line sometime subsequent to the month of April in the year 1912, and upon its private right of way by purchase; and that since the last named line was erected, there has been no change in the petitioner’s lines. The report further shows that the high tension line, consisting of three solid copper wires, constantly carries a voltage of 22,000; that this line, when considered without reference to proximity or parallelism with any other line, might be regarded as fairly well constructed for the purpose for which it is used; that the proximity which exists between sections 1 to 18 inclusive of this line and the petitioner’s parallel line west of the railroad track, creates danger which is in no wise justifiable- from the standpoint of public safety; that at points where the two lines are closest, the line clearance is, in some instances, not over twenty-five inches, and if a wire in either line become there disconnected, an ordinary swing of the disconnected wire would result in contact between the two lines; that at these last mentioned points, it is extremely hazardous for linemen to work on the ends of the petitioner’s cross-arms nearest the high tension line; that contact between wires of the two lines would produce an instantaneous electrification, by a current of at least 16,000 volts, of the petitioner’s wire and every instrument and piece of apparatus connected therewith at every point on the wire, with the attendant probability of injury or death to persons using said instruments or apparatus; that the maintenance and operation of the aforementioned eighteen sections of the petitionee’s line with a voltage of 22,000, at the proximity existing between the same and the petitioner’s telegraph line adjacent thereto, constitutes an ever present public danger that should be eliminated ; and that the separation of the line of poles carrying these eighteen sections of the high tension line, and the petitioner’s line of poles parallel thereto and on the west side of the railroad track, to a minimum distance of thirty feet, would eliminate the danger in the most reasonable and feasible manner, if both lines are to be continued in operation. — 516 — No claim is made that by the provisions of the petitionee’s charter the locating of its high tension line where it is in the sections in question, was mandatory or imperative; and the contrary must be assumed, for if the petitionee sought to base any claim upon the intention of the Legislature to take away the private rights of individuals or of another public service corporation, the burden was with the petitionee to show that by express words, or by necessary implication, such an 'intention appears. Per Lord Blackburn in Metropolitan Asylum District Managers v. Hill, 6 App. Cas. 193, 16 Eng. Rul. Cas. 556. See also Rutland-Canadian R. Co. v. Central Vt. Ry. Co., 72 Vt. 128, 47 Atl. 399. Fixing the location of its line, acquiring the right of way therefor in that particular place, and erecting the line there, were discretionary acts of the company. Private ownership of the right of way did not give the company the right to erect its high tension line thereon without regarding the rule of law restricting every man against using his property to the prejudice of others. In Clarendon v. Rutland Railroad Co., 75 Vt. 6, 52 Atl. 1057, this Court said: “It was not within the scope of legislative authority to grant to the company a right to construct and operate its road without regard to the rights of other persons and corporations. It is a settled principle that every holder of property, however absolute his title, holds it under the implied liability that his use of it shall not be injurious to the enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. All property is held subject to general regulations made by the Legislature, under its police power, for the common good and general welfare.” In Carty’s Adm’r v. Winooski, 78 Vt. 104, 62 Atl. 45, 2 L. R. A. (N. S.) 95, 6 Ann. Cas. 436, it is said that, “One of the powers of government inherent in every sovereignty is the governing and regulating of its internal police.” And that, “It is a governmental function founded upon the duty of the state to protect the public safety, the public health, and the public morals.” In Nelson v. Vermont & Canada Ry. Co., 26 Vt. 717, 62 Am. Dec. 614, it was held that by general laws, the Legislature may require public service corporations to conform to such regulations of a police character, as they may deem for the security of the rights of citizens generally, and most conducive to quiet and good order, and the security of property, and even of animals. “And if the running of railroads, under — 517 — present restrictions, was found cruelly and recklessly destructive, even of the lives of domestic animals, it would be strange if the Legislature could not interfere, upon the general maxim, that every one shall be bound and required, sic utere tuo ut alienum non laedas.” In Thorpe v. Rulland & R. R. Co., 27 Vt. 140, 62 Am. Dec. 625, it is .said that the police power extends to the protection of the lives, limbs, health, comfort and quiet of all persons, and the protection of all property within the State; and that according to the maxim given above, it must of course be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others. In Board of Health v. St. Johnsbury, 82 Vt. 276, 73 Atl. 581, 23 L. R. A. (N. S.) 766, 18 Ann. Cas. 496, the principle of this maxim is said to be “a universal and pervading obligation, and a condition on which all property is held, the application of which in the particular conditions must necessarily be within the reasonable discretion of the Legislature; and that when such discretion is exercised in a given case by means appropriate and reasonable, not oppressive nor discriminatory, it is not subject to constitutional objection.” See also State v. Morse, 84 Vt. 387, 80 Atl. 189, 34 L. R. A. (N. S.) 190, Ann. Cas. 1913 B, 218. In Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. 581, the court, through Mr. Justice Harlan, said: “The plaintiff in error took its charter subject to the power of the state to provide for the safety of the public, in so far as the safety of the lives and persons of the people were involved in the operation of the railroad. The company laid its tracks subject to the condition necessarily implied that their use could be so regulated by competent authority as to insure the public safety. And as all property, whether owned by. private persons or by corporations, is held subject to the authority of the state to regulate its use in such manner as not to unnecessarily endanger the lives and the personal safety of the people, it is not a condition of the exercise of that authority that the state shall indemnify the owners of property for the damage or injury resulting from its exercise. Property thus damaged or injured is not, within the meaning of the Constitution, taken for public use, nor is the owner deprived of it without due process of law. The requirement that compensation be made for private property taken for public use imposes no restriction — 518 — upon the inherent power of the state by reasonable regulations to protect the lives and secure the safety of the people. In the recent case of New York & N. E. R. Co. v. Bristol, 151 U. S. 556, 38 L. ed. 269, 14 Sup. Ct. 437, this Court declared it to be thoroughly established that the inhibitions of the Constitution of the United States upon the impairment of the obligation of contracts, or the deprivation of property without due process or of the equal protection of the laws, by the states, are not violated by the legitimate exercise of legislative power in securing the public safety, health, and morals. ‘The governmental power of self-protection’ the court said ‘cannot be contracted away, nor can the exercise of rights granted, nor the use of property, be withdrawn from the implied liability to govermnental regulation in particulars essential to the preservation of the community from injury- ’ ” The recent case of Bacon v. Boston & Maine R. R., 83 Vt. 421, 76 Atl. 128, contains a lengthy discussion of the police power and its applicability in regulating public service corporations in the interest of the public. There the report of the public service commission showed that at the railroad station in White River Junction, a condition inconsistent with the safety of the travelling public existed, and that additional platform space was necessary to relieve the situation; and it appeared that some change of tracks was a necessary incident of providing such platform space as should be reasonably safe and free from discomfort. It was held that so far as the movement of the rails adjacent to the station was such necessary incident, the commission had power to order it; that moving back from the station, the railroad tracks, as safety required, was a legitimate exercise of the police power, was not a taking of property without compensation, did not constitute expropriation of property, nor impair any obligation of contract. The facts reported show that the part of the petitionee’s high tension line, here in question, at the short distance it is now located from the petitioner’s parallel telegraph line west of the railroad track, is highly dangerous to the public safety, in that it constantly endangers the lives and persons of the petitioner’s linemen at work in the place mentioned, and the lives and persons of all those who are anywhere using the instruments and apparatus connected with that telegraph wire, and consequently that said high tension line constitutes a public nuisance. In these circumstances, on the authorities cited, the — 519 — commission has the constitutional power of regulation in the interest of the public, and if this power was not exercised by it in such a manner as to cause it to be within the rule that the substance and not the shadow, determines the validity of the exercise of the power, the order made is not confiscatory and does not deprive the petitionee of its property without due process of law. Interstate Commerce Com. v. Illinois Central R. Co., 215 U. S. 452, 54 L. ed. 280, 30 Sup. Ct. 155; Interstate Commerce Com. v. Union Pacific R. Co., 222 U. S. 541, 56 L. ed. 308, 32 Sup. Ct. 108. III. It is contended that the order, even though in form within the power delegated to the commission, is an unreasonable exercise of authority. This question must be determined upon the facts reported; for the findings of the commission, having the force and effect of reports of special masters in courts of equity, when the cause is iu this Court on appeal; are conclusive. When the petitionee constructed its high tension line, it had knowledge of the location of the petitioner’s lines; and it will be taken to have had knowledge of the natural tendencies of electric energy in its transmission under high voltage, and of the inherent dangers attending it. In such circumstances it would be most inequitable and unjust to say that the petitionee could locate this line in disregard of the legal rights of the petitioner, thereby create a public nuisance of the nature hereinbefore described, and then, because of some repairs, (by way of more or fewer new poles,) needed in the latter’s parallel line, that the nuisance should be abated and the dangers eliminated by the removal of the line of the innocent party, instead of by the removal of the line of the wrong-doer, as was ordered in this case. By the order made, the petitionee is required to separate its line of poles of the eighteen sections in question, to the minimum distance of thirty feet from the line of the poles of the petitioner on the west side of the railroad track, within the time limited, or thereafter to cease using its line for the transmission of high tension current until separation is made. Such separation is expressly found to be the most reasonable and feasible manner of eliminating the danger, if both lines are to be continued in operation. The commission having determined the necessity for such elimination, it was within the province of the commission to determine the manner in which this could best be accomplished with a view to the operation of the lines — 520 — and the public safety (Sayers v. Montpelier & W. R. R. R., 90 Vt. 201, 97 Atl. 660); and the record affords no basis for the contention that the order is an unreasonable exercise of authority to that end. Order of the Public Service Commission affirmed and cause remanded that the commission may fix a new time ivithin which the order shall be complied with.