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4. The order requiring the changes should be regarded as stating a condition that must be complied with if the railroad continues to use the soil of the State; but the railroad cannot be compelled to serve at a loss. P. 410.
5. There being reason to believe that safety requires the change, the facts that the execution of the plan will interfere with prior contracts and involve expenditures so heavy as to impair the efficiency of the railroad as an agency of interstate commerce or even lead to bankruptcy, do not bring the State's order into conflict with the contract or commerce clauses of the Constitution or the due process clause of the Fourteenth Amendment. P. 411.
6. The rights of the railroad company in respect of private sidings are no greater than those in respect of the main line. Id. 7. The burden of paying for the required changes may be laid upon an operating lessee railroad company, without regard to the financial ability of the lessors to compensate it for the required improvements if the leases should be terminated. Id.
8. As the railroad company might be charged the entire expense, it cannot complain that only 10 per cent. of it is cast upon a street railway company as to streets used by the latter. 412.
9. While it may be that an order of a state board directing such changes at heavy expense to a railroad company would be so unreasonable as to be void if the evidence plainly did not warrant a finding that the particular crossings were dangerous, yet such crossings are generally dangerous and the conclusion reached by the board and confirmed by the state courts is entitled to much weight and, if reasonably warranted, must stand. Id. 10. As a State may delegate legislative or quasi-legislative power to a board, subject to review in the courts (Hall v. Geiger-Jones Co., 242 U. S. 539,) the constitutional aspect of changes ordered at grade crossings, as regards the railroad company affected, is the same whether the board ordering them was obliged to do so upon finding danger or had a discretion in the matter, under the state law. P. 413. 11. A street railway crossing the tracks of a steam road at grade increases the danger and may be obliged to bear part of the expense of removing it. Id.
12. And where changes are lawfully ordered, a water company is not deprived of property without due process by being obliged to adjust the pipes to the new conditions at its own expense. Id. 13. In being so required, a water company is not denied equal protection of the laws as compared with a street railroad company required to pay 10 per cent. of the total expense of the crossing and
Argument for Plaintiff in Error in Nos. 33, 34. 254 U.S.
presumably more than the expense of merely readjusting its tracks. P. 413.
14. Held, that changes ordered at railroad grade crossings involving expense to a telegraph company in adjusting its lines, did not infringe its rights under the Fourteenth Amendment or violate the commerce clause. P. 414.
15. An order and plan for abolishing grade crossings of a railroad and public streets, if otherwise valid, is not unconstitutional because it will dislocate private sidings connected with the railroad and put their owners to expense. Id.
89 N. L. J. 57, 24; 90 N. J. L. 672, 673, 714, 729, 677, 694, 715, affirmed.
THE cases are stated in the opinion.
Mr. George S. Hobart and Mr. Charles E. Hughes for plaintiffs in error in Nos. 33 to 39. Mr. Gilbert Collins and Mr. George F. Brownell were on the brief for plaintiff in error in Nos. 33 and 34. Mr. William B. Gourley was on the brief for plaintiffs in error in Nos. 38 and 39. The argument in Nos. 33 and 34 was as follows:
The order imposes a burden upon the interstate traffic of the plaintiff in error and interferes with and impairs its ability to perform its duty as an interstate carrier of freight and passengers.
So far as relates to side tracks the execution of the order requires the entire destruction of several without any provision for reconstruction or relocation, and requires the destruction of others and suggests reconstruction at different grades and locations. If the order be construed to require such cost to be paid by the sidetrack owners, it is invalid, as these owners are not public utilities; if it requires the cost to be paid by plaintiff in error, it is equally invalid, because plaintiff in error is not legally bound to pay, and an order requiring it so to do takes its property for the benefit of others. As neither the railroad nor the siding owners can be compelled to reconstruct and relocate the several sidings, the result
Argument for Plaintiff in Error in Nos. 33, 34.
is that the sidings or the connections thereof with the main tracks are destroyed and no one can be compelled to restore them. This interferes with the interstate commerce of plaintiff in error and for that reason is in violation of the Federal Constitution. McNeill v. Southern Ry. Co., 202 U. S. 543.
The order also operates as a regulation of interstate commerce because the great cost of carrying it out impairs the ability of plaintiff in error to perform its public duty as a common carrier of interstate traffic. Discussing: Kansas City Southern Ry. Co. v. Kaw Valley District, 233 U. S. 75; Chicago, Burlington & Quincy R. R. Co. v. Wisconsin R. R. Commission, 237 U. S. 220; Mississippi R. R. Commission v. Mobile & Ohio R. R. Co., 244 U. S. 388. Distinguishing: Denver & Rio Grande R. R. Co. v. Denver, 250 U. S. 241.
There was no real occasion or necessity for imposing such an enormous burden upon the company in the present case. Under the statute upon which the order is based, the city might well have selected any one of the crossings, rather than combining 15 of them in a single proceeding. If 15 crossings in a single city may be considered in one proceeding, there is no reason why all of the crossings within the limits of a municipality should not be considered-indeed, there is no logical stopping place fixed by the boundary line of any municipality; we might as well include all of the grade crossings in the entire State upon any particular railroad. We do not ask this court to review the supposed discretion of the board to include more than one crossing in the same order, but we insist that under the undisputed testimony the necessary effect of an order which requires several millions to be spent within the limits of a single municipality, covering about two miles of main-line track, is a direct interference with and a burden upon the interstate commerce of plaintiff in error. There are over
Argument for Plaintiff in Error in Nos. 33, 34. 254 U. S.
2,200 miles of railroad tracks which it is necessary for plaintiff in error to maintain in an operating condition; and to appropriate a large part of the money which might be, and ought to be, used for that purpose and pour it into a single town-to the detriment of all the rest of the system, is a direct burden upon the interstate commerce; and, indeed, even more, because the inevitable result is to leave plaintiff in error no money with which to maintain the rest of its system, even if it had enough in the first instance (which the proof shows it had not) to pay the cost of eliminating the crossings in Paterson.
The order was unreasonable and arbitrary and therefore violates the due process clause, because the evidence shows without dispute that plaintiff in error did not have sufficient funds or any means of procuring them for the purpose of meeting the cost of complying.
The legislature may prescribe a standard, by which the action of an administrative board is to be governed, but when it undertakes to commit to such board certain powers which are dependent upon the existence of certain facts, the statute must itself prescribe some standard upon which the board's action is made to depend.
It is impossible to lay down any hard and fast rules for determining whether a crossing is "dangerous," and hence there is no standard upon which the action of the board in any particular case must be based. It is equally impossible to lay down any rule by which the question of whether public travel is "impeded" may be determined-unless the word "impeded" be applicable only to permanent obstructions and not merely to delays or hindrances caused by the passage of trains.
The statute confers on the board arbitrary power to order or to refuse to order the alteration of a grade crossing, even though it may find the jurisdictional facts on which the right to make such order under the statute depends.
Argument for Plaintiff in Error in Nos. 33, 34.
There is no provision which requires that the orders of the commission be lawful and reasonable, as there are in many other similar statutes. See Public Util. Comm. v. Toledo &c. R. R. Co., 267 Illinois, 93; State v. Great Northern Ry. Co., 100 Minnesota, 445.
Furthermore, there is no standard fixed with regard to the proportion of the expense to be borne by a street railway company, as the board may, but need not, order not exceeding 10 per cent. to be paid by the street railway company.
The opinion of the state Supreme Court is not clear as to whether the statute is to be construed as permissive or as mandatory, after the board has found the jurisdictional facts as to danger to public safety, or as to impediment to public travel. If the statute be so construed as to authorize the board to order plaintiff in error to do certain work for the purpose of eliminating grade crossings, and to decline to order some one else to do like work in substantially similar circumstances, plaintiff in error is deprived of the equal protection of the laws, by being obliged to use its money and property to eliminate grade crossings, while other railroads, similarly situated, might not be required so to do. In considering the constitutionality of a statute, the question depends upon not what is done, but what might or could be done under it. Montana Co. v. St. Louis Mining Co., 152 U. S. 160; Security Trust Co. v. Lexington, 203 U. S. 323; Central of Georgia Ry. Co. v. Wright, 207 U. S. 127; In re Christensen, 43 Fed. Rep. 243; Grainger v. Douglas Park Club, 148 Fed. Rep. 513.
On the other hand if, under the statute, the board has no power to consider any facts other than danger to public safety and impediment to public travel, and, therefore, cannot take into consideration the question of whether the elimination of the crossing or crossings would result in any compensating advantage to the railroad or to the