Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. City of Hartford

Gillett, J. Action by appellee against appellant for the violation of a city ordinance. The charge is that the defendant violated said ordinance “by then and there unlawfully failing, neglecting and refusing, while operating said railway as aforesaid, to keep and maintain an electric light at a point where said tracks cross Walnut street in said city, of sufficient power to light the entire of said Walnut street crossing, but not to exceed the power of the electric lights in use in said city.” The ordinance requires that the company shall keep and maintain electric lights at certain points where its tracks intersect streets in said city, of sufficient power to light “the entire of said crossings,” but not to exceed the power of the electric lights used in said city, and also to keep said lights supplied with a sufficient amount of electric current, and burning for five minutes before the arrival of each and every engine and train of ears at said crossing, and until after such engine and train of cars have departed, at all times in the night-time when there is no moon, or the moon is obscured. Appellant answered in seven paragraphs. Demurrers were sustained to the last four of said paragraphs. The fourth paragraph challenged, in general terms, the reasonableness of said ordinance. The fifth paragraph alleged that defendant was a large taxpayer in said city, and that said lights would .be of no benefit to it, but for the exclusive use and benefit of those using said streets. The paragraph concluded with a charge that the requirement of the ordinance amounted to a taking' of defendant’s property without just compensation and without due process of law, contrary to the Constitution of the United States. The sixth paragraph set up the fact that defendant is a railroad company, organized and existing under the laws of Illinois, Indiana, Ohio, Pennsylvania and West Virginia, and as such is a common carrier of freight and passengers between the -states, and is also en [677] gaged in transporting United States mails; that it is necessary that all of defendant’s locomotives used in carrying on said business should be equipped with a headlight, to enable the engineman and fireman properly to perform their duties, and that the existence of an electric light at said street crossing would impair the efficiency of said headlights, and obscure and diminish, and in effect destroy, the light therefrom, and prevent the engineman and fireman from performing their duties, thus endangering defendant’s trains, and the passengers and freight carried thereon; that an electric light would prevent persons using said crossing from seeing the headlight upon an approaching locomotive, ■ and would hinder and prevent defendant’s servants operating said trains from seeing persons and objects along its tracks, thus' increasing the danger to those using said street, and incapacitating defendant from the performance of its duties as a carrier of interstate commerce and United States mails. The seventh paragraph challenges the constitutional validity of said ordinance as a taking of property without just compensation and without due process of law, and it. contains the averment that said ordinance was passed without affording appellant an opportunity to be heard relative thereto. The court found the facts specially, and filed conclusions of law thereon, which were adverse to appellant. A judgment against it followed, and from said judgment this appeal is prosecuted. 1. [678] 2. [677] The constitutional objections which appellant’s counsel urge to the ordinance are, for the most part, indicated by the last four paragraphs of answer. It appears to us that these questions are pretty well solved by the consideration of whether the ordinance is so far reasonable, as an attempted exercise of the police power, that the court should, under the grant of authority found in the statute then in force (Acts 1893, p. 302, §5255 Burns 1908), defer to the determination of the local legislative authority as to the expediency of its requirement. It is true that the [678] courts will arrest an arbitrary or plainly unreasonable exercise of the police power, where there has been an attempt thereby to lay a burden upon a subject in the use or enjoyment of his property, yet, notwithstanding this, the courts recognize that, as respects the police power, there is a broad authority within the field of legislative discretion, wherein, as respects what is good and expedient, the lawmaking power is absolutely the master of its own discretion. The ordinance in question does not fix the height of the electric light, and appellant would be within the requirements of the ordinance if the light were located at such a height that the engineer would not be required to look directly toward it. This being so, we are of opinion, notwithstanding the broad allegations of the sixth paragraph of the answer, that the court knows enough of electric lighting to affirm that at the most there would be presented only a question of expediency, relative to what it would be wise to do in the premises, and the mere fact that we might be of opinion that the ordinance was in some measure unsuited to the attainment of its ostensible end, would not justify us in striking it down. It must be presumed that the purpose of the requirement in question is to, add to the security of life and limb, and the possibility that a traveler might unwittingly pass into danger at the crossing, particularly if in a conveyance, without real opportunity to safeguard himself by looking and listening, is too great to warrant us in holding that the light may not be required, even if its effect be to compel the engineer to run slowly or cautiously in approaching it. 3. [680] 4. [678] Granting that the ordinance in question may in some degree affect interstate commerce, we are nevertheless of opinion that, as a local regulation designed to protect travelers upon the street, it was competent to establish the same. The railroad was built by the authority of the State, and, whether an interstate carrier or otherwise, the company must, so long as congress does not inter [679] fere, submit to reasonable local regulations in tbe use of its property. Any other holding would substitute government by a board of directors for government by the representatives of the people. It was said in Crutcher v. Kentucky (1891), 141 U. S. 47, 11 Sup. Ct. 851, 35 L. Ed. 649, that it is “within the undoubted province of the state legislature to make regulations with regard to the speed of railroad trains in the neighborhood of cities and towns, with regard to the precautions to be taken in the approach by such trains to bridges, tunnels, deep cuts, and sharp curves; and generally with regard to all operations in which the lives and health of people may be endangered, even though such regulations affect to some extent the operations of interstate commerce. Such regulations are eminently local in their character, and, in the absence of congressional regulations over the same subject, are free from all constitutional objections, and unquestionably valid.” In Hennington v. Georgia (1896), 163 U. S. 299, 16 Sup. Ct. 1086, 41 L. Ed. 166, the Federal Supreme Court upheld, against an interstate railroad, a statute of the state of Georgia forbidding the running of freight-trains on Sunday. In Lake Shore, etc., R. Co. v. Ohio (1899), 173 U. S. 285, 19 Sup. Ct. 465, 43 L. Ed. 702, that court upheld the right of the state to promote the convenience of local passengers, by requiring all railroads to stop three trains a day, should that many be run, at all cities or towns in the state of more than 3,000 inhabitants. In that ease the court said: “The plaintiff in error accepted its charter subject necessarily to the condition that it would conform to such reasonable regulations as the state might from time to time establish that were not in violation of the supreme law of the land. In the absence of legislation by congress, it would be going very far to hold that such an enactment as the one before us was in itself a regulation of interstate commerce. It was for the state to take into consideration all the circumstances affecting passenger travel within its limits, and as far as practi [680] cable make such regulations as were just to all who might pass over the road in question. * * * Any other view of the relations between the state and the corporation created by it would mean that the directors of the corporation could manage its affairs solely with reference to the interest of stockholders and without taking into consideration the interests of the general public.” It was further held in that ease that the statute authorizing railroad companies to carry the mails did not prohibit the enactment of reasonable police regulations by the state. See, also, Village of St. Bernard v. Cleveland, etc., R. Co. (1896), 4 Ohio Dec. 371; note to People, ex rel., v. Chicago, etc., R. Co. (1906), 7 Am. and Eng. Ann. Cas. 1. Of course, the courts are open to appellant to challenge the validity of the ordinance as an attempted exercise of the police power, but as the act was one of a legislative character, and was not judicial, appellant was not entitled to a hearing on the question whether the ordinance should be passed. 5. The ordinance does not amount to a taking of property without just compensation. The regulation being a just exercise of the police power, appellant must submit to the requirement, even though it lays some expense or inconvenience upon it. There is too large a body of legislative regulations of this character, which have received judicial sanction by the highest courts, to make the proposition a debatable one. 6. The mere fact that the General Assembly has seen fit to give the common council the power to prescribe the character of the light — with respect to its being electric or otherwise — and that the latter body has required that the lighting shall be done by electricity, affords no sufficient grounds for an overthrow of the ordinance. As was said in Missouri, etc., R. Co. v. May (1904), 194 U. S. 267, 24 Sup. Ct. 638, 48 L. Ed. 971: “Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it [681] must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as.the courts.” Nor does it appear to us that the common council exceeded its authority in requiring the light to be burning for five minutes before the arrival of a train. Such a provision as to the time that the light shall be burning is a very moderate one, and can well be defended on the ground that it is calculated to make it more certain that the duty will be performed. 7. The validity of the statute is questioned, in that it purports to be a grant of power to all cities not operating under a special charter. We may grant that this makes the statute special in its character, but from this it does not follow that it is invalid. As long as the legislation is not of a character sufficiently radical to amount to the creation of a municipal corporation, within the prohibition of article 11, §13, of the state Constitution, we know of no constitutional provision, federal or state, which is offended by a mere difference in the extent of lawmaking power which is granted to different cities or towns. As applied to the statute in question, it may be said that each street and railroad intersection presents its own considerations for the determination of the municipal legislature, and it is no discrimination that such power is not given to every city, or that every such intersection in the State is not ordered lighted. 8. It is contended by appellant’s counsel that the ordinance is within the condemnation of Chicago, etc., R. Co. v. Town of Salem (1906), 166 Ind. 71, because of the provision that the power shall not exceed that of the lights used by the city. In that case there was no standard fixed, except the shifting standard of the lights which the city might from time to time use, and it was held unreasonable to enforce by penalty a requirement that would compel the company to take notice of changes dehors the ordinance. Here the requirement is that the light shall be [682] “of sufficient power to light the entire of said Walnut street crossing.” And the limitation thereon is designed merely to keep the ordinance from calling on the'company to do more than the statute authorizes. In other words, if such limitation were not found in the words of the ordinance, it would still be subject to the statute. We are of opinion that in this respect the case is ruled by Chicago, etc., R. Co. v. City of Crawfordsville (1905), 164 Ind. 70. ■The ordinance is not so indefinite in its requirement as to be invalid.- Upon the hearing of such a case it would be the duty of the court to construe the ordinance, and we are of opinion that its legal effect is to require a light of sufficient power — not exceeding that used by the city — to enable a traveler, of good eyesight, in the night-time, and before going upon the crossing, to see the tracks at the point of intersection and the character of the way across the same. While it may be that a light of greater power than this might be required by the city, yet, as a matter of legal construction, any uncertainty must cut down the operation of the ordinance until it be brought within the limits of the clear requirements of the provision, and when so construed it must be said that the standard of duty is definite. See Chicago, etc., R. Co. v. City of Crawfordsville, supra. 9. We regard the complaint as sufficient. The statute specifically authorizes the city by ordinance or resolution to “provide what kind of lights the railroad company shall maintain,” and, as a proper means to an authorized end, we are of opinion that it was proper for the common council to direct that a light be located at said street intersection. There is no available error in the record. Judgment affirmed.