Illinois Central Railroad v. Copiah County

Whitfield, C. J., delivered the opinion of the court. The agreed case is this: “For the purpose of the trial of the above-styled cause, and for no other purpose, it is agreed by the parties hereto that the road ordered to be constructed by the board of supervisors, hereto attached, is a new public road, laid out and opened by the board within the past year, and that the railroad has been constructed and operated for more than the last twenty years at the point where this new road crosses it, and where the bridge is ordered to be constructed by the board. It is further agreed that the bridge has not been constructed, and that the road is a public road, and regularly laid out by the board in conformity with the law, and that if § 3555 of the Code of 1892, embraces and requires the erection of bridges over a railroad previously constructed, on public roads newly constructed, and laid out after the railroad .was built, then the railroad is liable in this suit, otherwise it is not, and that the bridge is necessary to the use of the road. It is [693] agreed that the defendant shall not be estopped to dispute any fact above admitted in any other suit to enforce the order of the board for noncompliance with it. ” We think the latter clause of § 3555 of the code of 1892 applies to railroads constructed prior to its passage. We have examined carefully all of the authorities cited by counsel for appellant on this point. Very many of them simply declare the well-known common law rule, that, where a highway is constructed over a previously existing highway, the expenses involved in making the crossing must be borne by the person or corporation making the crossing, and that the crossing must be so constructed as to interfere as slightly as possible with public travel over the first highway. Others of these cases hold that certain statutes or charter provisions relied on as changing the common-law .rule did not have that effect. We think it is very clear that § 3555 does change the common-law rule, and that the latter clause applies to railroads constructed before that section became a law, as well as to railroads constructed afterwards. It must necessarily have been within the contemplation of appellant’s lessor when the road was originally constructed through Mississippi that as the state was opened up, and hamlets, villages, and towns built, and population in the interior increased, very many new public roads crossing the railroad would be demanded by the very largely increased needs of the people in the matter of travel over public roads. All this appellant’s lessor must, of course, have contemplated; and it is not subjecting it to any unexpected burden, when the state, in the exercise of its police power, passed, subsequently to its construction, a statute requiring it to do what from the first it must have known the constantly increasing needs of the public as to travel would require it to do. Appellant’s second proposition — that, if this be the true construction of the statute, then it is unconstitutional, in depriving appellant of its property without due process of law, and in impairing its charter rights — is untenable. The supreme court [694] of Illinois, in the case of Ill. Cent. R. R. Co. v. Willenborg, 117 Ill., 203, also reported in 7 N. E., 698; 57 Am. Rep. 862, states fully the doctrine on this subject. The court says: “This is a misapprehension of the law. The regulations in regard to fencing railroad tracks, and the construction of farm crossings for the use of adjoining landowners, are police regulations, in the strict sense of those terms, and apply with equal force to corporations whose tracks are already built, as well as those to be thereafter constructed. They have reference to the public security, both as to persons and to property. All property devoted to public uses takes on a nature or qualification quasi public, and for that reason is held to be subject to legislative control in a greater or less degree, and to which the mere private property of the citizen is not subjected. Rights purely and exclusively private, in no wise affecting others, and in no way affecting public morals, are not regarded as being within the control of the police power, nor can mere private property be taken for public use without making the owner just compensation; yet the law has always required the citizen to so use his property as not necessarily to injure another, and, to compel the observance of that rule, even private property may be brought within legislative control to that extent. But where property belonging to a natural person or to a corporation becomes ‘affected with a public interest, it ceases to be juris privati only. ’ Where a party devotes his property to a public use, the community at large acquires such a qualified interest as will subject it to legislative control for the common welfare. Accordingly the property of railroads and other public corporations transacting business for and with the public has been subjected to burdens not imposed on the owners of mere private property, used purely and exclusively for private interests. The distinctions in this regard have been uniformly observed. It is for this reason it has been frequenly held that railroad corporations, notwithstanding no such right had been reserved in their charters, may be required to fence their tracks, to put [695] in cattle guards, to place upon their engines a bell, and to do many other things for the protection of life and property. No public exigency has ever made it necessary to impose such burdens on the citizens exercising no functions or occupations in their nature public or quasi public. Railroad companies are public corporations, in a limited sense, although the right of way, roadbed, and the track thereon, are for the exclusive use of the owners, over which only their own conveyances are pro • polled. . . • The fact that railroad corporations are granted exclusive franchise to conduct a business in its nature public must subject them to all reasonable control to secure the public safety and welfare. It is now the settled law that railroad corporations are within the operation of all reasonable police regulations; otherwise there would be no security for the life or property of the citizen residing in' the vicinity. . The case of Ill. Cent. R. R. Co v. Bloomington, 76 Ill., 447, is not analogous, in its facts or otherwise, with the case being considered, and is therefore no authority in support of the position taken by counsel in this case.” All statutes like this, and statutes requiring roads to fence their tracks, and to establish farm cattle guards, etc., are plainly ascribable to the police power of the state for their justification. Affirmed.