A federal question was specifically presented in the trial of
this case both in the trial court and at the hearing in error
before the supreme court of the state, and the motion to dismiss
cannot be allowed.
This Court, when reviewing the final judgment of a state court,
upholding a state law alleged to be in violation of the contract
clause of the Constitution,
Page 170 U. S. 58
must determine for itself the existence or the nonexistence of
the contract set up and whether its obligation has been impaired by
the state law.
The contract between the City of Omaha, the Union Pacific
Railway Company, and the Omaha & Southwestern Railroad Company
of February 1, 1886 (founded upon the Act of Nebraska of March 4,
1885, relating to viaducts, bridges and tunnels in cities),
providing for the building of a viaduct along Eleventh Street in
Omaha at the expense of the two railroad companies, was a contract
in such a sense that the respective parties thereto continued to be
bound by its provisions so long as the legislation in virtue of
which it was entered into remained unchanged, but it was not a
contract whose continuance and operation could not be affected or
controlled by subsequent legislation.
When the subject matter of such a contract is one which affects
the safety and welfare of the public, the contract is within the
supervising power and control of the legislature, when exercised to
protect the public safety, health and morals, and the clause of the
federal Constitution which protects contracts from legislative
action cannot in every case be successfully invoked.
In view of the paramount duty of a state legislature to secure
the safety of the community at an important railroad crossing
within a populous city, it was and is within its power to
supervise, control and change agreements from time to time entered
into between the city and the railroad company as to a viaduct over
such crossing, saving any rights previously vested.
It is competent for the legislature of the state to put the
burden of the repairs of such a viaduct crossing several railroads
upon one of the companies, or to apportion it among all, as it sees
fit, and an apportionment may be made through the instrumentality
of the City Council.
The State of Nebraska, on the relation of the City of Omaha,
filed its petition in the District Court of the Fourth Judicial
District of Nebraska on January 19, 1895, asking judgment for the
issuing of a writ of mandamus requiring the Chicago, Burlington
& Quincy Railroad Company to repair, in accordance with the
directions of a city ordinance enacted under certain statutes of
the state legislature, the south one-third of the viaduct at
Eleventh Street in the City of Omaha, a structure forming a part of
that street and spanning a number of railroad tracks, one of which
was owned and used by the said company, the others being owned by
the Union Pacific Railway Company and used by it and two other
companies. The defendant filed its answer on March 6, 1895,
alleging therein, among other things, that the Legislature of
Nebraska had no
Page 170 U. S. 59
power to impose upon the defendant the duty of maintaining or
repairing the viaduct for the reason that to do so would be in
violation of the obligations of the contract, hereinafter
described, under which the viaduct was constructed, and contrary to
the provisions of the Constitution of the United States. At the
trial of the case, evidence was adduced by both parties, but there
was substantially no dispute respecting the facts, the controversy
having relation only to the validity, interpretation, and effect of
legislative enactments, and to the validity of city ordinances. On
May 1, 1895, the court entered judgment in favor of the city and
directed that a peremptory writ of mandamus issue to the defendant
company commanding and requiring it to make the repairs in
question, the same to be commenced immediately and carried forward
without unnecessary delay. The defendant, having been denied a new
trial, took the case on writ of error to the supreme court of the
state, and, upon the affirmance by that court of the judgment of
the said district court, sued out a writ of error bringing the case
here, alleging in its assignment of errors that the statutes of
Nebraska, which were held by the Supreme Court of that state to be
valid and to require the company to make the said repairs, were
repugnant to the Constitution of the United States because they
impaired the obligation of contracts, abridged the company's
privileges and immunities, deprived it of its property without due
process of law, and denied to it the equal protection of the laws,
and that the judgment enforcing those statutes was therefore
erroneous.
The facts presented are substantially as follows:
The defendant company is a corporation of the State of Illinois,
has complied with the laws of the State of Nebraska, so as to be
authorized to do business as a railroad company in that state, and
maintains a general office therein, and is the grantee of and
successor to the Burlington and Missouri River Railroad Company in
Nebraska, a corporation of the State of Nebraska, which company was
the lessee of the Omaha and Southwestern Railroad Company, a
corporation organized in the year 1869, under chapter 25, Revised
Statutes of Nebraska
Page 170 U. S. 60
1866. That chapter contains, among other provisions, the
following:
"SEC. 83. If it shall be necessary in the location of any part
of any railroad to occupy any road, street, alley, or public way or
ground of any kind, or any part thereof, it shall be competent for
the municipal or other corporation or public officer or public
authorities owning or having charge thereof, and the railroad
company, to agree upon the manner and upon the terms and conditions
upon which the same may be used or occupied, and if said parties
shall be unable to agree thereon, and it shall be necessary, in the
judgment of the directors of such railroad company, to use or
occupy such road, street, alley, or other public way or ground,
such company may appropriate so much of the same as may be
necessary for the purposes of such road in the same manner and upon
the same terms as is provided for the appropriation of the property
of individuals by the eighty-first section of this chapter. . . .
"
"SEC. 86. Any railroad company may construct and carry their
railroad across, over, or under any road, railroad, canal, stream
or watercourse when it may be necessary for the construction of the
same, and in such cases said corporation shall so construct their
railroad crossing as not necessarily to impede the travel,
transportation or navigation upon the road, railroad, canal, stream
or watercourse so crossed. . . ."
"SEC. 103. Every railroad corporation shall maintain and keep in
good repair all bridges and their abutments which such corporation
shall construct for the purpose of enabling their road to pass over
or under any turnpike, road, canal, watercourse or other way."
On May 14, 1884, an ordinance of the City of Omaha was approved,
granting to the Omaha and Southwestern Railroad Company the right
of way through portions of certain streets and alleys, including
Eleventh Street, in that city. The ordinance was in part as
follows:
"Said Omaha and Southwestern Railroad Company shall have the
right to construct, maintain and operate a line of railroad along,
upon, through, and across said portions of said streets and alleys
as a part of its line, provided, that said
Page 170 U. S. 61
railroad track and tracks are constructed so as to conform to
the grade of said street as near as may be, and so as to interfere
as little as possible with the travel along and upon said streets,
and provided that nothing herein contained shall be construed as
interfering with the right of any property owner to recover from
said company any damages resulting to private property by reason of
the construction of said railroad, and nothing herein granted shall
authorize any interference with the tracks of the Union Pacific
Railway Company now laid and operated by said Union Pacific Railway
Company in any portions of the streets and alleys herein named and
enumerated."
On March 4, 1885, an act of the Legislature of Nebraska was
approved entitled "An act to provide for viaducts, bridges and
tunnels in certain cases, in cities of the first class," whereby it
was provided that the mayor and city council of any city of the
first class should have power, whenever they deemed any such
improvement necessary for the safety and convenience of the public,
to engage and aid in the construction of any viaduct or bridge over
or tunnel under any railroad track or tracks, switch or switches in
such cities when such track or switches crossed or occupied any
street, alley, or highway thereof in the manner and extent provided
for in the act, and should have the power to pass any and all
ordinances, not in conflict with the act, that might be necessary
or proper for the construction, maintenance, and protection of the
said works.
By virtue of this act, the City of Omaha, which was then a city
of the first class, and the Union Pacific Railway Company and the
Omaha and Southwestern Railroad Company, the lessor of the
defendant company, executed an agreement in writing February 1,
1886, providing, among other things, for the construction of a
viaduct on Eleventh Street across the tracks of those companies.
The agreement was in part as follows:
"That the said parties of the second part [the Union Pacific
Railway Company and the Omaha and Southwestern Railroad Company],
in pursuance of the provisions of an act
Page 170 U. S. 62
of the Legislature of the State of Nebraska entitled 'An act to
provide for viaducts, bridges and tunnels in certain cases, in
cities of the first class,' do hereby assume and agree to pay, as
may be required by the mayor and city council of said city,
three-fifths of the Eleventh Street, and three-fifths of the
damages Eleventh Street, and three-fifths of the damages to
abutting property on account of the construction of such viaduct
not otherwise provided for by waivers or private contributions,
such entire cost and damages not to exceed the sum of ninety
thousand dollars ($90,000), the amount so assumed and agreed to be
paid being three-fifths of the entire cost and damages, to be
proportioned between said parties of the second part as follows:
three-fourths thereof to be paid by said Union Pacific Railway
Company and one-fourth thereof to be paid by said Omaha and
Southwestern Railroad Company. . . . The plans and specifications
for said viaducts, before contracts for the construction thereof
are entered into, shall be submitted to and approved by said
parties of the second part, and should plans and specifications be
adopted by said party of the first part, and approved by said party
of the second part, which shall increase the said cost and damages
beyond the amounts herein limited, then the said parties of the
second part are to pay their respective proportions of said
increased cost and damages in the same manner and according to the
same division as hereinbefore agreed."
Under the provisions of this agreement, the viaduct was built,
and in 1887 it was opened to the use of the public. On March 30th
of that year, a short time before the viaduct was completed, an act
of the legislature was approved, entitled "An act to incorporate
metropolitan cities, defining, regulating and prescribing their
duties, powers and government." The act, which took effect from its
passage, declared that all cities in the State of Nebraska then
having a population of 60,000 inhabitants or more, according to the
state census of 1885, and all cities in the state which should
thereafter have a population of 60,000 inhabitants or more, should
be considered and known as cities of the metropolitan class, and
should be governed by the provisions of the act. Laws of
Page 170 U. S. 63
Nebraska, 1887, c. 10. At that time, the City of Omaha,
according to the state census of 1885, had a population in excess
of the said number, and under the act was incorporated a city of
the metropolitan class. Section 48 of this act, as amended by an
act approved in 1893, Laws of Nebraska, 1893, c. 3, is as
follows:
"SEC. 48. The mayor and council shall have power to require any
railroad company or companies, owning or operating any railroad
track or tracks upon or across any public street or streets of the
city, to erect, construct, reconstruct, complete and keep in repair
any viaduct or viaducts, upon or along such street or streets, and
over or under such track or tracks, including the approaches to
such viaduct or viaducts as may be deemed and declared by the mayor
and council necessary for the safety and protection of the public.
Whenever any such viaduct shall be deemed and declared by ordinance
necessary for the safety and protection of the public, the mayor
and council shall provide for appraising, assessing, and
determining the damages, if any, which may be caused to any
property by reason of the construction of such viaduct and its
approaches."
"The proceedings for such purpose shall be the same as provided
herein for the purpose of determining damages to property owners by
reason of the change of grade of a street, and such damages shall
be paid by the city, and may be assessed by the city council
against property benefited."
"The width, height and strength of any such viaduct, and the
approaches thereto, the material therefor, and the manner of the
construction thereof shall be as required by the board of public
works, as may be approved by the mayor and council."
"When two or more railroad companies own or operate separate
lines of track to be crossed by any such viaduct, the proportion
thereof, and the approaches thereto, to be constructed by each, or
the cost to be borne by each, shall be determined by the mayor and
council."
"It shall be the duty of any railroad company or companies, upon
being required as herein provided, to erect, construct,
reconstruct,
Page 170 U. S. 64
or repair any viaduct, to proceed within the time and in the
manner required by the mayor and council, to erect, construct,
reconstruct or repair the same, and it shall be a misdemeanor for
any railroad company or companies to fail, neglect, or refuse to
perform such duty, and upon conviction, any such company or
companies shall be fined one hundred dollars ($100), and each day
any such company or companies shall fail, neglect or refuse to
perform such duty shall be deemed and held to be a separate and
distinct offense, and in addition to the penalty herein provided
any such company or companies shall be compelled by mandamus or
other appropriate proceeding to erect, construct, reconstruct or
repair any viaduct as may be required by ordinance as herein
provided. The mayor and council shall also have power whenever any
railroad company or companies shall fail, neglect, or refuse to
erect, construct, reconstruct or repair any viaduct or viaducts,
after having been required so to do as herein provided, to proceed
with the erection, construction, reconstruction, or repair of such
viaduct or viaducts by contract or in such other manner as may be
provided by ordinance, and assess the cost of the erection,
construction, reconstruction, or repair of such viaduct or viaducts
against the property of the railroad company or companies required
to erect, construct, reconstruct, or repair the same, and such cost
shall be a valid and subsisting lien against such property, and
shall also be a legal indebtedness of said company or companies in
favor of such city, and may be enforced and collected by suit in
the proper court."
In May, 1890, the Union Pacific Railway Company, which now owns
twenty-one tracks crossing Eleventh Street beneath the said
viaduct, entered into agreements with the Chicago, Rock Island and
Pacific Railway Company and the Chicago, Milwaukee and St. Paul
Railway Company by the terms of which agreements it granted to
those companies the right to possess and use, in common with
itself, its main and passing tracks between certain points, which
tracks are among the said twenty-one tracks for the period of 999
years. Subsequently in that year, the said companies entered into
possession
Page 170 U. S. 65
of the interest granted them, and have since continued to use
the said tracks in common with their grantor.
By a concurrent resolution of the City Council of Omaha adopted
July 21, 1892, it was provided that the city engineer and the
committee on viaducts and railways should examine the roadbed of
the said viaduct and report whether or not it was necessary to
repave it. Acting under this resolution, the committee made an
examination, and on the 23d of the following month reported in
writing that both the roadway and sidewalk of the viaduct were in a
dangerous condition. By authority of the city, the viaduct was
closed to general public travel sometime in 1892, but continued to
be used by a street railway company, whose tracks were laid across
it, until the autumn of 1894, since which time the city has not
permitted it to be used for any travel.
By an ordinance approved December 12, 1893, the city declared
the necessity of repairing the viaduct, and empowered and directed
the board of public works to prepare plans and specifications for
the repairs. Such plans and specifications were thereafter
prepared, and were submitted to the council December 15, 1893, by
the board of public works and the city engineer, and on January 30,
1894, the council passed an ordinance, No. 3752, approved February
3, 1894, which is as follows:
"An ordinance approving the plans and specifications submitted
by the board of public works for the repairing of the Eleventh
Street viaduct over the railroad tracks and ordering the repairing
of said viaduct to be done."
"Whereas, it has been and hereby is deemed and declared
necessary for the safety and protection of the public that the
Eleventh Street viaduct be repaired as herein required; and"
"Whereas, it is right, proper and reasonable that the railroad
companies owning or operating railway tracks across said Eleventh
Street should make said repairs to said viaduct, therefore"
"
Be it ordained by the City Council of the City of
Omaha:"
"Section 1. That the plans and specifications submitted by the
Board of Public Works of the City of Omaha, December 15,
Page 170 U. S. 66
1893, for the repairs of the Eleventh Street viaduct over the
railroad tracks, upon and across Eleventh Street, from a point near
Jackson Street to a point near Mason Street, in the City of Omaha,
as prepared by the city engineer of said city, be and the same are
hereby approved and adopted."
"SEC. 2. That the Union Pacific Railway Company be and is hereby
ordered, directed, and required to repair that portion of said
Eleventh Street viaduct from the north end of said viaduct south
for a distance of two-thirds of the entire length of said viaduct,
and the Chicago, Burlington and Quincy Railroad Company, grantee
and successor to the Missouri River Railroad Company in Nebraska
and the Omaha and Southwestern Railroad Company, be and is hereby
ordered, directed and required to repair that portion of said
Eleventh Street viaduct commencing at the south end thereof and
extending northward a distance of one-third of the entire length of
said viaduct; the said repairs to be made in accordance with said
plans and specifications, and to be done under the supervision of
the city engineer, the said repairs to be commenced without
unnecessary delay and fully completed, as herein required, within
ninety days from the passage and approval of this ordinance."
"SEC. 3. This the city clerk be and is hereby directed to
furnish to said Union Pacific Railway Company and to said Chicago,
Burlington and Quincy Railroad Company, owning or operating
railroad tracks upon and across said Eleventh Street under said
Eleventh Street viaduct, a duly certified copy of this ordinance
without unnecessary delay, and that the city engineer is hereby
directed to furnish to each of said railroad companies a copy of
said plans and specifications, and to superintend the work of
making said repairs."
"SEC. 4. That this ordinance shall take effect and be in force
from and after its passage."
Certified copies of this ordinance and of the said plans and
specifications were furnished to the defendant company, but it
refused to make the said repairs or to take any action with
reference to making the same, wherefore the present proceeding was
instituted as aforesaid.
Page 170 U. S. 67
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The motion to dismiss the writ of error on the ground that the
rights and immunities of the plaintiff in error under the
Constitution of the United States were not set up or claimed in the
state courts at the proper time and in the proper way cannot be
allowed.
This subject has been so frequently and so recently discussed by
this Court that it is unnecessary for us to further consider it at
large. It is sufficient to say that this record discloses that the
plaintiff in error, in its answer to the writ of mandamus issued
out of the district court of Douglas County, State of Nebraska,
claimed that, by reason of certain provisions of its charter, of
general laws of the state, and of ordinances of the City of Omaha,
all of which were specifically set forth, a contract was created
between the plaintiff in error and said city in respect to the
viaduct in question, the obligations whereof would be violated by
the proposed enforcement of the subsequent act of 1887, contrary to
the provisions of the Constitution of the United States; that the
district court held that the laws and ordinances so pleaded did not
create a contract between the state and city, on the one side, and
the plaintiff in error, on the other; that the plaintiff in error,
in its petition in error to the supreme court of the state,
specifically assigned as error the holding of the trial court that
the said laws, charter, and ordinances did not constitute a
contract within the meaning and protection of the Constitution of
the United States, guarantying the inviolability of contracts, and
that the supreme court of the state, in its opinion disposing of
the case, states that
"the most important subject of inquiry is presented by
respondent's contention that the ordinance under which the city
proceeded in ordering the repairs
Page 170 U. S. 68
in question contemplates the taking of its property without due
process of law within the meaning of the state and federal
constitutions, and also impairs the obligation of the contract
under which its track was laid and under which said viaduct was
constructed."
We think it is plain from this recital that a federal question
was specifically presented in both the trial and supreme courts of
the state.
As the record further discloses that the state supreme court
overruled the railroad company's contention that it held an
existing contract whose obligation would be violated by the
enforcement of the provisions of a subsequent law of the state, it
becomes the duty of this Court to inquire whether there was error
in that judgment of the supreme court of the state.
We have often had occasion to say that this Court, when
reviewing the final judgment of a state court upholding a state
enactment alleged to be in violation of the contract clause of the
Constitution, possesses paramount authority to determine for itself
the existence or the nonexistence of the contract set up, and
whether its obligation has been impaired by the state enactment.
Jefferson Branch Bank v.
Skelly, 1 Black 436;
Railroad
Co. v. Rock, 4 Wall. 177;
New Orleans
Waterworks v. Louisiana Sugar Refining Co., 125 U. S.
18;
Mobile and Ohio Railroad v. Tennessee,
153 U. S.
492.
We shall proceed, therefore, to examine whether the statutes and
ordinances to which the plaintiff in error points us constituted a
contract within the protection of the Constitution of the United
States, and whether such contract, if found to exist, has been
impaired by the subsequent statute and the proceedings
thereunder.
The contract which the plaintiff in error sets up as
constitutionally protected from subsequent legislation is alleged
to be found in the Act of March 4, 1885, and the agreement in
compliance with the provisions of that act between the City of
Omaha, the Union Pacific Railway Company, and the Omaha and
Southwestern Railroad Company on the first day of February,
1886.
Page 170 U. S. 69
By the provisions of the act, the mayor and city council in any
city of the first class were authorized, whenever they deemed it
necessary for the safety and convenience of the public, to engage
and aid in the construction of any viaduct or bridge over or tunnel
under any railroad track or tracks, switch, or switches in such
cities, when such track or switches cross or occupy any street,
alley, or highway thereof; to adopt and secure plans and
specifications therefor, together with the estimated cost of the
work, and thereupon, if the railroad company or companies across
whose tracks or switches the work is proposed to be built will
assume three-fifths of all damages to abutting property on account
of the construction of said viaduct, bridge, or tunnel, and secure
to the city the payment of the necessary funds to meet it as the
work progresses, in such manner and with such security as the mayor
and city council shall require, and when the payment of the further
sum of one-fifth of the money required for said improvement is
arranged for in manner satisfactory to said mayor and council,
either by private donations or by execution of such good and
sufficient bonds as will protect said city from the payment of said
one-fifth, then the said mayor and council may proceed to contract
with the necessary party or parties for the construction of such
viaduct, bridge, or tunnel under the supervision of the board of
public works of such city, and to provide for the payment of
one-fifth of the cost thereof by the city, by special tax on all
taxable property in such city, and one-fifth by special tax on
property benefited. It was further provided that the city, with the
assent of the railroad company or companies aiding in the
construction of any such viaduct, bridge, or tunnel, may permit any
street railway company to build its street railway track and
operate its railway upon or through the same upon such terms and
conditions and for such compensation as shall be agreed upon
between the city and the street railway company, and that the
compensation for such use shall be set apart and used towards the
maintenance of such viaduct, bridge, or tunnel, and it was further
provided that the mayor and council of any such city should have
the power to pass any and all ordinances,
Page 170 U. S. 70
not in conflict with the act, that might be necessary or proper
for the construction, maintenance, and protection of the works
provided for.
The agreement made, in pursuance of the said act between the
City of Omaha, as party of the first part, and the Union Pacific
Railway Company and the Omaha and Southwestern Railroad Company, as
parties of the second part, provided that the parties of the second
part assumed and agreed to pay, as should be required by the mayor
and city council, three-fifths of the entire cost of constructing a
viaduct along Eleventh Street in said city over the railroad tracks
of the said second parties, and three-fifths of the damages to
abutting property on account of the construction of such viaduct,
not otherwise provided for by waivers or private contributions,
such entire cost and damages not to exceed the sum of $90,000, and
that the amount so assumed and agreed to be paid, being
three-fifths of the entire cost and damages, was to be apportioned
between the railroad companies so that three-fourths thereof should
be paid by the Union Pacific Railway Company and one-fourth by the
Omaha and Southwestern Railroad Company.
Under this agreement, the viaduct was built and formally opened
to the use of the public early in the year 1887.
By an Act approved March 30, 1887, c. 10, Laws of Nebraska,
1887, 105, entitled "An act incorporating metropolitan cities, and
defining, regulating and prescribing their duties, powers and
government," it was, among other things, provided as follows:
"The mayor and council shall have power to require any railroad
company or companies, owning or operating any railroad track or
tracks upon or across any public street or streets of the city, to
erect, construct, reconstruct, complete and keep in repair any
viaduct or viaducts upon or along such street or streets and over
or under such track or tracks, including the approaches to such
viaduct or viaducts as may be deemed and declared by the mayor and
council necessary for the safety and protection of the public. . .
. When two or more railroad companies own or operate separate lines
of track to be crossed by any such viaduct, the
Page 170 U. S. 71
proportion thereof and of the approaches thereto to be
constructed by each or the cost to by borne by each shall be
determined by the mayor and council. After the completion of any
such viaduct, any revenue derived therefrom by the crossing thereon
of street railway lines or otherwise shall constitute a special
fund, and shall be applied in making repairs to such viaduct. All
ordinary repairs to any such viaduct or to the approaches thereto
shall be paid out of such fund or shall be borne by the city."
In 1893, another act was passed, c. 3, Laws of Nebraska, 1893,
70, amending the act of 1887 and making it the duty of any railroad
company or companies to erect, construct, or repair any viaduct in
the manner required by the mayor and council, providing a penalty
for neglect or refusal to perform such duty, and prescribing a
proceeding by mandamus to compel the companies to erect or repair
any viaduct as may be required by ordinance and empowering the
city, in case of failure or refusal by the railroad companies,
itself to do the necessary work, the cost thereof to be a charge
and lien upon the property of the railroad companies, and also to
be a legal indebtedness of the companies, collectible by suit in
the proper court. On January 30, 1894, the city council passed an
ordinance requiring the Union Pacific Railway Company to repair
that portion of the said Eleventh Street viaduct for a distance of
two-thirds of the entire length of the viaduct, and the Chicago,
Burlington and Quincy Railroad Company, as grantee and successor of
the Omaha and Southwestern Railroad Company, to repair the other
one-third portion of said viaduct, said repairs to be made in
accordance with plans furnished by the city and under the
supervision of the city engineer, and to be completed within ninety
days. And upon the refusal of the companies to comply with said
ordinance, separate proceedings in mandamus were brought against
them.
No doubt the agreement of 1886 constituted a contract in such a
sense that the respective parties thereto continued to be bound by
its provisions so long as the legislation in virtue of which it was
entered into remained unchanged. While the agreement lasted, its
provisions defined the rights and duties
Page 170 U. S. 72
of the city and the railroad companies. But was it a contract
whose continuance and operation could not be affected or controlled
by subsequent legislation?
Usually where a contract not contrary to public policy has been
entered into between parties competent to contract, it is not
within the power of either party to withdraw from its terms without
the consent of the other, and the obligation of such a contract is
constitutionally protected from hostile legislation. Where,
however, the respective parties are not private persons dealing
with matters and things in which the public has no concern, but are
persons or corporations whose rights and powers were created for
public purposes by legislative acts, and where the subject matter
of the contract is one which affects the safety and welfare of the
public, other principles apply. Contracts of the latter description
are held to be within the supervising power and control of the
legislature when exercised to protect the public safety, health,
and morals, and that clause of the federal Constitution which
protects contracts from legislative action cannot in every case be
successfully invoked. The presumption is that when such contracts
are entered into, it is with the knowledge that parties cannot, by
making agreements on subjects involving the rights of the public,
withdraw such subjects from the police power of the
legislature.
We do not, indeed, understand that these principles are
questioned on behalf of the plaintiff in error. What is claimed is
that the subject matter of the contract in question does not fall
within the range of the police power of the state. It is argued
that
"while it may be true that a viaduct over railroad tracks
located across a public street may be essential to the public
safety, it does not follow that a legislative enactment impairing
the obligation of an existing contract is necessary to secure its
construction and maintenance, and that any attempt upon behalf of
the state to establish a viaduct through such legislation, however
necessary the viaduct itself may be to the public safety, would be
an invasion of the federal jurisdiction unless adopted under the
compulsion of state necessity; that while it is not questioned that
the
Page 170 U. S. 73
maintenance of the viaduct is essential to the safety of the
community, yet if existing contract obligations devolve this burden
upon the city, the legislature of the state cannot, under the plea
of public necessity, pass a law imposing it upon the plaintiff in
error without bringing the act within the prohibitions of the
federal Constitution."
Before considering this proposition, it is proper to observe
that it proceeds upon the assumption that, by the agreement between
the parties in the present case, the duty of repairing and
maintaining the viaduct was put upon the city. But an examination
of the terms of the contract fails to show that this assumption is
well founded. Certainly, there is therein no express provision or
stipulation that after the viaduct had been constructed, its future
repair and maintenance should be at the cost of the city. It is,
however, contended that as the viaduct, when constructed, became a
part of Eleventh Street, and as the law implies a duty on the city
to keep its streets in a safe condition, such a duty entered into
this contract as a part thereof, and therefore the city, by the
execution of the contract, became bound to keep the viaduct in
repair. On the other side, however, it was equally made the duty of
the railroad company by the statute of Nebraska, under which this
agreement was made,
"to maintain and keep in good repair all bridges, with their
abutments, which such corporation shall construct for the purpose
of enabling their road to pass over or under any turnpike, road,
canal, watercourse, or other way."
While, therefore, it is the equal duty of the city and of the
railroad company to guard the safety of the public by the erection
and maintenance of a proper crossing or viaduct, it does not follow
that in the absence of an express agreement to that effect, such a
duty is by implication of law devolved upon one party to the relief
of the other. Indeed the contract in question shows that in
consideration of their mutual duty to the public, the parties
participated in the expense of the construction of the viaduct, and
it would seem to be a reasonable implication that there should be a
common obligation to keep it in repair.
However this may be, we think that in view of the paramount
Page 170 U. S. 74
duty of the legislature to secure the safety of the community at
an important crossing within a populous city, it was and is within
its power to supervise, control, and change such agreements as may
be from time to time entered into between the city and the railroad
company in respect to such crossing, saving any rights previously
vested. Any other view involves the proposition that it is
competent for the city and the railroad company, by entering into
an agreement between themselves, to withdraw the subject from the
reach of the police power and to substitute their views of the
public necessities for those of the legislature.
This subject has been so often considered by this Court that it
seems needless to here enlarge upon it. It is sufficient to cite a
few of the cases.
Beer Co. v. Massachusetts, 97 U. S.
25;
Fertilizing Co. v. Hyde Park, 97 U. S.
659;
New Orleans Gas Co. v. Louisiana Light
Co., 115 U. S. 650;
Mugler v. Kansas, 123 U. S. 623.
In
New York & New England Railroad v. Bristol,
151 U. S. 556, the
subject was elaborately considered, and it was there held that an
act of the State of Connecticut relating to railway crossings,
being directed to the extinction of grade crossings as a menace to
public safety, was a proper exercise of the police power of the
state; that there is no unjust discrimination and no denial of the
equal protection of the laws in regulations regarding railroads
which are applicable to all railroads alike, and that the
imposition upon a railroad corporation of the entire expense of a
change of grade at a highway crossing is no violation of the
Constitution of the United States if the statute imposing it
provides for an ascertainment of the result in a mode suited to the
nature of the case. It is true that in that case, there was a
provision in the charter of the railroad company reserving a right
to the legislature to alter and amend the same, but this Court
based its reasoning and conclusion entirely upon the police power
of the state. The following language of the Supreme Court of
Connecticut was quoted with approval:
"The act, in scope and purpose, concerns protection of life.
Neither in intent nor in fact does it increase or diminish the
assets of either the city or of the
Page 170 U. S. 75
railroad companies. It is the exercise of the governmental power
and duty to secure a safe highway. The legislature, having
determined that the intersection of two railways with a highway in
the City of Hartford at grade is a nuisance, dangerous to life, in
the absence of action on the part either of the city or of the
railroads, may compel them severally to become the owners of the
right to lay out new highways and new railways over such land, and
in such manner as will separate the grade of the railways from that
of the highway at intersection; may compel them to use the right
for the accomplishment of the desired end; may determine that the
expense shall be paid by either corporation alone or in part by
both, and may enforce obedience to its judgment."
Wabash Railroad Company v. Defiance, 167 U. S.
88, was a case much like the present one. It was there
held, affirming the Supreme Court of Ohio, that the legislative
power of a city may control the question of grades and crossings of
its streets, and a power to that effect, when duly exercised by
ordinances, will override any license or consent previously given
by which the control of a certain street had been surrendered; that
such matters cannot, from their public nature, be made the subject
of a final and irrevocable contract.
Another ground of complaint is that the act in question
delegates to the municipality authority, in cases where two or more
railway companies own or operate tracks across public streets, to
impose the cost and expense of constructing and maintaining
viaducts over the same upon either or any of such companies, and
that the city ordinance, in execution of such authority, imposes
upon two of the four companies named in the record the entire
expense of the repairs in question, and this is said to deny the
plaintiff in error the equal protection of the law.
It is true that, by virtue of agreements between the Union
Pacific Railway Company and the Chicago, Milwaukee, and St. Paul
Railroad Company and the Chicago, Rock Island, and Pacific Railroad
Company, the two latter companies were using certain tracks
belonging to the former which were under said viaduct. But it is
not easy to see why the
Page 170 U. S. 76
plaintiff in error can complain that the city omitted to bring
those companies in as parties. The nature and extent of their
rights under the agreements with the Union Pacific Railway Company
do not appear, and, for aught that is disclosed in this record, it
may have been a feature of those agreements that the Union Pacific
should protect them from any charge or exaction of the kind in
question.
Again, it is said that the apportionment made by the ordinance
of the extent of the repairs, one-third to the plaintiff in error
and two-thirds to the Union Pacific Railway Company, was arbitrary,
without notice, and contrary to plain principles of justice and
equality.
But if, as we have seen, it would have been competent for the
legislature to have put the burden of these repairs upon one of the
parties, or to have apportioned them among the parties, as it saw
fit, so it may make a due apportionment through the instrumentality
of the city council. The latter was not directed to proceed
judicially, but to exercise a legally delegated discretion.
In
State v. Missouri Pacific Railway, 33 Kan. 176, the
power of the City of Atchison to compel the respondents to
construct viaducts was sustained under legislation similar to that
herein involved, and, referring to the subject of notice, the
court, per Judge Valentine, said:
"We do not think it necessary that the city should have given
the railroad companies notice before passing the ordinance
requiring them to construct the viaduct. Notice afterwards, with an
opportunity on the part of the railroad companies to contest the
validity of the ordinance and the right of the city to compel them
to construct the viaduct, is sufficient."
Health Department v. Trinity Church, 145 N.Y. 32, was
the case of an action to recover a penalty under a statute
requiring all tenement houses to be supplied with water on each
floor occupied or intended to be occupied by one or more families
whenever so directed by the board of health. The statute made no
provision for notice to property holders, and none in fact was
given, while it was admitted that it would cost the respondent a
considerable sum of money to comply with the order of the
board.
Page 170 U. S. 77
In the opinion of the court, per PECKHAM, J., it was said:
"The legislature has power, and has exercised it in countless
instances, to enact general laws upon the subject of the public
health or safety without providing that the parties who are to be
affected by those laws shall first be heard before they shall take
effect in a particular case. . . . The fact that the legislature
has chosen to delegate a certain portion of its power to the board
of health would not alter the principle, nor would it be necessary
to provide that the board should give notice and afford a hearing
to the owner before it made such order. . . . Laws and regulations
of a police nature, although they may disturb the enjoyment of
individual rights, are not unconstitutional though no provision is
made for compensation for such disturbance. They do not take
private property for public use, but simply regulate its use and
enjoyment by the owner. If he suffer injury, it is either
damnum absque injuria, or, in the theory of the law, he is
compensated for it by sharing in the general benefits which the
regulations are intended and calculated to secure."
So, in the present case, while no notice may have been given to
the railroad companies of the pendency of the ordinance, and while
they may not have been invited to participate in the proposed
legislation, yet they had an opportunity to, and did in fact, put
in issue by the answer both the validity of the ordinance and the
reasonableness of the amount apportioned to them respectively for
the repair of the viaduct in question.
The validity of the statute and of the ordinance having been
passed upon and upheld by the courts of the state, it is not the
function of this Court, apart from the provisions of the federal
Constitution supposed to be involved, to declare state enactments
void because they seem doubtful in policy and may inflict hardships
in particular instances.
The judgment of the Supreme Court of Nebraska is accordingly
Affirmed.
THE CHIEF JUSTICE took no part in the hearing and decision of
the case.
