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The argument is that the existing grades of railroad crossings were legally established, in accordance with the then wisbes of the people, but, with the increase in population, crossings formerly safe had become no longer so; that the highways were chiefly for the benefit of the local public, and it was the duty of the local municipal corporation to keep them safe; that this law applied to railroad corporations treatinent never accorded to other citizens in allowing the imposition of the entire expense of change of grade, both costs and damages, irrespective of benefits, on those companies, and in that respect, and in the exemption of the town from its just share of the burden, denied to them the equal protection of the laws.

And further that the order, and therefore the law which was held to authorize it, amounted to a taking of property without due process, in that it required the removal of tracks many feet from their present loca: tion, involving the destruction of much private property, the excavation of the principal highway, and those cominunicating, and the building of an expensive iron bridge, all at the sole expense, including damages, of the company, without a hearing as to the extent of the several responsibilities of the company and the town, or as to the expense of the removal of this dangerous crossing, as compared with other dangerous crossings, or of the degree of the responsibility of tlie company for the dangers existing at this particular crossing. The objection is not that hearing was not required and accorded, which it could not well be, in view of the protracted proceedings before the commissioners and the Superior Court and the review in the Supreme Court, but that the scope of inquiry was not as broad as the statute should have allowed, and that the particular crossing to be removed was authorized to be prejudged.

It is further objected that the Supreme Court had so construed the statute that, upon the issue whether the financial condition of the company warranted the order, no question of law could be raised as to the extent of the burdens which a certain amount of financial ability would warrant, and thus, in that aspect, by reason of the large amount of expenditure which might he, and as matter of fact was, in this instance, required, the obligation of the contracts made by the company with the holders of its securities was impaired. Complaint is made in this connection of the striking out by the Superior Court of certain paragraphs of the petition on appeal, held by that court and the Supreme Court to plead mere matters of evidence, and the decision by the Supreme Court that all the material issues were met by the findings. Those issues were stated by the court to he whether or not the company's directors had removed, or applied for the removal of, a grade crossing, as required by the statute ; whether or not the grade crossing ordered to be removed by the commissioners was in fact a dangerous one, which the directors onght to have removed, or for the removal of which the directors ought to have applied ; and whether or not the company's financial condition was such as to warrant the order.

And npon these premises it is urged, in addition, that the right to

amend the charter of the corporation was not controlling, because that did not include the right to arbitrarily deprive the stockholders of their property, which, though held by them, for purposes of management and control, under a corporate organization created by special law, was nevertheless private property, not by virtue of the charter, but “ by force of the most fundamental and general laws of modern society, whicb, from their nature, necessarily protect alike and fully all legitimate acquisitions of the members of the community, no matter whether held by them as individuals or partnerships or associations or corporations."

The Supreme Court of Connecticut held that the statute operated as an amendment to the charters of the railroad corporations affected by it; that, as grade crossings are in the nature of nuisances, the legislature had a right to cause them to be abated, and to require either party to pay the whole or any portion of the expense; that the statute was not unconstitutional, in authorizing the commissioners to determine their own jurisdiction, and that, besides, the right of appeal saved the railroad companies from any harm from their findings; that it was the settled policy of the State to abolish grade crossings as rapidly as could be reasonably done ; and that all general laws and police regulations affecting corporations were binding upon them without their assent.

We are askerl, upon the grounds above indicater, to adjudge that the bighest tribunal of the State in which these proceedings were had, committed, in reaching these conclusions, errors so gross as to amount in law to a denial by the State of rights secured to the company by the Constitution of the United States, or that the statute itself is void by reason of infraction of the provisions of that instrument.

But this court cannot proceed upon general ideas of the requirements of natural justice, apart from the provisions of the Constitution supposed to be involved, and in respect of them we are of opinion that our interposition cannot he successfully invoked.

As observed by Mr. Justice Miller in Davidson v. Nero Orleans, 96 U. S. 97, 104, the Fourteenth Amendment cannot be availed of “as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in the State court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded.” To use the language of Mr. Justice Field in Railway Co. v. Flumes, 115 U. S. 512, 520, 6 Sup. Ct. 110, “it is hardly necessary to say that the hardship, impolicy, or injustice of State laws is not necessarily an objection to their constitutional valiility, and that the remedy for evils of that character is to be sought from State legislatures."

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 rises 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 througlı 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 perforinance 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 highest court of a 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. Railway Co. v. Alabama, 128 U. S. 96, 9 Sup. Ct. 28; Banking Co. v. Smith, 128 U. S. 174, 9 Sup. Ct. 47; Railway Co. v. Beckwith, 129 U.S. 26, 9 Sup. Ct. 207; Dent v. West Virginia, 129 U. S. 114, 9 Sup. Ct. 231; Railroad Co. v. Gibbes, 142 U. S. 386, 12 Sup. Ct. 255 ; Railroad Co. v. Emmons, 149 U. S. 364, 13 Sup. Ct. 870.

Judgment affirmed.

NOTE.

The subjects treated in this chapter are intimately connected with those of the next, and are further illustrated there. – ED.

CHAPTER V.

UNCLASSIFIED LEGISLATIVE POWER. THE SO-CALLED

POLICE POWER.1

COMMONWEALTH v. ALGER.
SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1853.

[7 Cush. 53.] This was an indictment against the defendant for an alleged breach of the statutes of this Commonwealth establishing the commissioners' lines, so-called, in the harbor of Boston, by erecting, building, and maintaining a wharf over and beyond those lines into said harbor.

The indictment was found and returned into the Municipal Court of the city of Boston at June Term, 1849. It set forth the following statutes for fixing and limiting the lines of the harbor of Boston : “ An Act to preserve the Harbor of Boston, and to prevent Encroachments therein," passed April 19, 1837. St. 1837, c. 229, 7 Special Laws, 808. ..

The first and second sections of the Act of 1837, c. 229, established a line by local objects designated from the lower South Boston Free Bridge, around the easterly and northerly sides of the city, to the abutment on the Boston side of Warren Bridge, above Charles River Bridge. The third, fourth, fifth, and sixth sections of this Act were as follows. [These are given in note below. The case also recites the substance

1 Discussions of what is called the “police power” are often uninstructive, from a lack of discrimination. It is common to recognize that the subject is hardly susceptible of definition, but very often, indeed, it is not perceived that the real question in hand is that grave, difficult, and fundamental matter, — what are the limits of legislative power in general? In talking of the “ police power,” sometimes the question relates to the limits of a power admitted and fairly well-known, as that of taxation or eminent domain; sometimes to the line between the local legislative power of the States and the Federal legislative power; sometimes to legislation as settling the details of municipal affairs, and local arrangements for the promotion of good order, health, comfort, and convenience; sometimes to that special form of legislative action which applies the maxim of Sic utere tuo ut alienum non lædas, adjusts and accommodates interests that may conflict, and fixes specific limits for each. But often, the discussion turns upon the true limits and scope of legislative power in general, — in whatever way it may seek to promote the general welfare. Ed.

? “Section 3. No wharf, pier, or building, or encumbrance of any kind, shall erer hereafter be extended beyond the said line into or over the tide-water in said harbor.

“SECTION 4. No person shall enlarge or extend any wharf or pier, which is now

of Acts of 1840, 1841, and 1847, altering the former lines or establishing others.]

The indictment then averred that all the parts of the harbor of Boston, outside of and beyond the commissioners' lines, and between those lines and the high sea, were, and from the time whereof the memory of man was not to the contrary, an ancient, navigable harbor, and an ancient and common biglıway for all citizens of the Commonwealth. ... [Here follow the formal charges of unlawful building beyond the lines.]

At the trial in the Municipal Court before Wells, C. J., at Septeinber Term, 1819, the attorney for the Commonwealth put in evidence a statement agreed to and signed by himself and the defendant, exhibiting the following facts: The defendant is, and for more than thirty years past has been, seised of an estate on Fourth Stieet in South Boston, consisting of upland and of flats belonging thereto, just above the old South Boston Bridge, and bounding on that arm of the sea, lying between Boston proper and South Boston, in and through which the sea ebbs and flows to and from a bay above, called South Bay. In 1813, he began to build a wharf on his said flats, and constructed the L northerly wall thereof from his upland nearly to the channel, and then filled in and constructed said wharf, but did not complete it until the commissioners' line of 1847 had been established, after which he built the triangular piece set forth in the indictment, which forms a part of the wharf as originally commenced by him. This triangular piece is beyond said line, but is built on the defendant's own flats; it is not one hundred rods from the upland, is not below low water-mark, is no injury to navigation, and is not so far beyond the commissioners' line or so near the channel as the northerly wall of the wharf was built in 1843.

No other evidence was offered.

The defendant contended and requested the judge to rule and instruct the jury that the evidence offered did not sustain the indictinent, and that the defendant, upon these facts, was entitled to a verdict. But the judge refused so to rule, and instructed the jury that on the eridence introduced, if believed, the government were entitled to a verdict. Whereupon the jury returned a verdict of guilty; and the

erected on the inner side of said line, further towards the said line than such wharf or pier now stands, or than the same might have been lawfully enlarged or extended before the passing of this Act, without leave first obtained from the legislature.

“ Section 5. No person shall in any other part of the said harbor of Boston, belong. ing to the Commonwealth, erect or cause to be erected any wharf or pier, or begin to erect any wharf or pier therein, or place any stones, wood, or other materials in said harbor, or dig down or remove any of the land covered with water at low tide, in said harbor, with intent to erect any wharf or pier therein, or to enlarge or extend any wharf or pier now erected: provided, however, that nothing herein contained shall be construed to restrain or control the lawful rights of the owners of any lands or flats in said harbor."

[Section 6 imposes penalties, and declares the forbidden obstructions to be nuisauces.)

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