S. Pac. Co. v. Interstate Com. Comm'n, 200 U.S. 536 (1906)

SOUTHERN PACIFIC COMPANY, Appt., v.

INTERSTATE COMMERCE COMMISSION.

(No. 162.)

(See S. C. Reporter’s ed. 536-561.)

by initial earrier — Nothing in the provi¬ sions of the act of February 4, 1887 (24 Stat. at h. 379, chap. 104, U. S. Comp. Stat. 1901, pp. 3154-3165), § 6, requiring joint traffic rates, when agreed upon, to be filed with the Interstate Commerce Commission, and made public when required, and empowering the Commission to prescribe forms of schedules of such rates, forbids the adoption by com¬ mon carriers, as part of an agreement for a through rate from California to the East, for oranges and other citrus fruits, of a rule under which the right of routing beyond its own terminal is reserved to the initial car¬ rier as the condition of guaranteeing the through rates to the shipper, where such rule has served, as was intended, to break up re¬ bating by the connecting lines, and, in its practical operation, the actual routing is generally conceded to the shipper, and his re¬ quests to divert shipments en route are us¬ ually allowed.

a. Carriers — Federal regulation — dis¬ crimination — routing by initial car¬ riers. — \ discrimination forbidden by the act of February 4, 1887 (24 Stat. at L. 379, chap. 104, U. S. Comp. Stat. 1901, pp. 3154- 3165), § 3, is not made by the adoption by common carriers, as part of an agreement for a through rate from California to the East, for oranges and other citrus fruits, of a rule under which the right of routing beyond its

585

537, 538

Supreme Court op the United States.

Oct. Term,

own terminal is reserved to the initial car¬ rier as the condition of guaranteeing the through rates to the shipper, where such rule has served, as was intended, to break up re¬ bating by the connecting lines, and, in its practical operation, the actual routing is gen¬ erally conceded to the shipper, and his re¬ quests to divert shipments en route, are us¬ ually allowed.

S. Commerce — enforcement by courts of orders of Interstate Commerce Com¬ mission.— The enforcement of an order of the Interstate Commerce Commission direct¬ ing common carriers to desist from maintain¬ ing or enforcing a rule adopted by them may be decreed by a Federal circuit court if it finds such rule is, for any reason, in vio¬ lation of the act of February 4, 1887 (24 Stat. at L. 379, chap. 104, U. S. Comp. Stat. 1901, pp. 3154-3165), although such reason may not have been the one relied upon by the Commission itself to invalidate the rule.

ing: — routing by initial carrier.— The pooling of freights of competing railroads, forbidden by the act of February 4, 1887 (24 Stat. at L. 379, chap. 104, U. S. Comp. Stat. 1901, pp. 3154-3165), § 5, is not accom¬ plished by the adoption by common car¬ riers, as part of an agreement for a through rate from California to the East, for oranges and other citrus fruits, of a rule under which the right of routing beyond its own terminal is reserved to the initial carrier as the con¬ dition of guaranteeing the through rates to the shipper, even though the initial carrier promises fair treatment to the connecting lines, and carries out such promise, where such rule has served, as was intended, to break up rebating by the connecting lines, and, in its practical operation, the actual routing is generally conceded to the shipper, and his requests to divert shipments en route are usually allowed.

[Nos. 158, 159, 160, 161, 162.]

Argued, January 23, 2Jf, 1906. Decided February 26, 1906.

APPEALS from the Circuit Court of the United States for the Southern District of California to review a decree for the en¬ forcement of an order of the Interstate Com¬ merce Commission requiring carriers to de¬ sist from maintaining or enforcing a rule under which initial carriers, as a condition of guaranteeing a through rate, were given the right to designate the route beyond their own terminals. Reversed and re¬ manded with instructions to dismiss the bill. See same case below, 132 Fed. 829.

Statement by Mr. Justice Feckham: These are appeals from orders or decrees of the circuit court of the United States for the southern district of California, in proceedings wherein that court affirmed, and ordered to be enforced, the determina¬ tion of the Interstate Commence Commis¬ sion, relating to the above-named railroad 586

companies, directing them to desist from maintaining or enforcing a rule adopted by them and pertaining to shippers of oranges and other citrus fruits in southern Cali¬ fornia, whereby those shippers were denied their alleged right of designating the routes for the transportation of their property from California to the Eastern markets, under a tariff of through rates, as mentioned in the orders or decrees.

The proceeding in each case was com¬ menced before the Commission under §§ 13, 14, and 15 of the interstate*commerce act (24 Stat. at L. 379, chap. 104, U. S. Comp. Stat. 1901, pp. 3154-3165,) by the filing of a petition with the Commission, on the part of certain corporations of the state of California, called the Consolidated Forwarding Company, and the Southern California Fruit Exchange, engaged in the business of shipping oranges and other cit¬ rus fruit from southern California to the Eastern markets. The proceeding was con¬ tinued in the circuit court under § 16 of the act. The petition charged the railroads with various violations of the interstate commerce act, including specially the agree¬ ment for “routing,” hereinafter set forth, and asked the Commission to enjoin such companies from any further violation of the act. The companies put in answers to the petition, denying its material averments.

Testimony was then taken before the Commission, and the following, among other facts, were shown:

The through tariff of rates from Cali¬ fornia to the East, with the right of rout¬ ing, which had been agreed upon between the companies complained of (hereinafter called the initial carriers) and their East¬ ern connections regarding the orange and other citrus fruit transportation, was in force January 1, 1900, and these proceed¬ ings were commenced February 26, 1900. Before the adoption of the rule for routing, there had been among the Eastern connec¬ tions of the initial carriers under the through joint tariff rates then existing, the greatest rivalry to obtain the Califor¬ nia fruit freight business; and this rivalry led, on the part of the connecting carriers, to a system of rebates from the through tariff rates, which was a clear violation of the commerce act, and was demoralizing in every way to honest business. Indeed, the president of one of complainants be¬ fore the Commission admitted that his com¬ pany (the Southern California Fruit Ex¬ change) had in four years received rebates to an amount of over $174,000. The prac¬ tice had become so general that the ship¬ pers came to regard a rebate as part of the legitimate returns from the orange busi¬ ness. Among those who participated in this

200 U S.

Southern P. Co. v. Interstate Com. Commission.

538-541

system of rebates were what is termed the car line companies, which were incorporated

companies *owning cars in which the fruit was packed, described as ventilator or re¬ frigerator cars, which were peculiarly adapted to the carriage of the fruit, and were hired by the initial carriers because they did not want to own equipment cars which they could keep in service only part of the year, while the car companies could use the cars for other purposes in other parts of the United States when the orange transportation was over. These car com¬ panies made arrangements with the connec¬ tions of the initial carrier east of Chicago and New Orleans, by which a certain bonus, varying from $10 to $40 per car, was given the car line companies, in consideration of the car being routed over the line paying the bonus, a part of the bonus, varying from a quarter to a half, being usually turned over to the shipper by the car com¬ pany, for the privilege allowed the latter of routing the shipment.

The initial carriers form two systems, — one called the Southern Pacific System, and the other the Santa F4 System. There are numerous points of junction on these lines of the defendants, where connec¬ tion is made with other carriers, and at their termini in Chicago, Ogden, and New Orleans such connection is made, and through lines are formed over which the citrus fruit is transported to practically all the markets of the United States. The two systems are the only ones which reach the section of country where the orange industry in Southern California ex¬ ists, and they about equally divide the trans¬ portation of the oranges therefrom. The Commission said the evidence was unsatis¬ factory as a basis for a conclusion whether the initial carriers pooled their citrus fruit traffic or divided the earnings therefrom; and it therefore retained such question for further hearing and investigation.

Prior to January, 1900, the rebates by the Eastern companies, already referred to, had become so great and demoralizing that the initial carriers at length determined to try and crush the whole thing. The con¬ necting carriers were themselves dissatis¬ fied with this state of things, but each felt it necessary in order to compete with the

others. It had been ‘assumed that the car line companies were not common carriers, and were not within the commerce act, and therefore they were more ready to indulge in the practice of getting rebates whenever they could, and paying part of the amount to the shippers for giving them the right to route the shipment. Prior to the adop¬ tion of the through rate tariff with this rule under discussion, the shippers had been 200 U. S.

permitted by the initial carriers to control the routing of the freight, and also to divert it, en route, from the destination point named in the bill. In order to stop the re¬ bating on these joint through rates it was proposed to agree upon a through rate tariff, to be assented to and accepted by the railroads interested in the fruit trans¬ portation, or by as many of them as pos¬ sible, with the rule in question to form part of the agreement. Such a tariff agreement was made between some of the roads (and subsequently assented to and joined in by most of the roads ) and filed with the Commission, for the transportation of oranges and other citrus fruit from South¬ ern California at $1.25 per hundred pounds, to practically all points east of the Missouri river. The tariff agreed upon by the com¬ panies contains the rule complained of, which is part of such agreement, and by it the initial carriers agreed to guarantee the through rates to the shipper, buj, only on the following conditions:

“In guaranteeing the through rate named herein, the absolute and unquali¬ fied right of routing beyond its own ter¬ minal is reserved to initial carrier giving the guaranty. In accordance with this rule, agents will not accept shipping orders or other documents, if routing instructions are shown thereon. Neither will agents ac¬ cept verbal routing instructions.”

Another rule reads :

“Initial carrier will route each car from point of origin to point of destination, and diversions in transit will not be permitted except by consent of initial carrier, who will thereupon designate new routing when diversion necessitates change therein.”

Notwithstanding the rule thus published in regard to routing, *the initial carriers

generally thereafter permitted the shippers to route the cars containing their fruit as they desired. The right to divert freight from the destination point or route named in the bill of lading, and before the freight reached the billed destination, had been exercised generally by shippers, and had been allowed by the carriers throughout the country, and the practice was regarded of value to the shippers, as it enabled them sometimes to realize higher prices than they otherwise might if the freight were con¬ tinued to the original destination. This di¬ version by the shippers also continued to be generally allowed.

The reason for the rule, reserving to the initial carrier this right to route the traffic, is stated to have been because it enabled the initial carriers to secure the discontin¬ uance of the practice of paying rebates.

Since the adoption of that rule the rebntes which had been paid to shippers- and to

587

541, 542

Supreme Court of the United States.

Oct Term,

owners of car lines were discontinued, and the Commission says there is no evidence that the practice has been resumed. They were discontinued for the obvious reason that the shippers could not control the route, and hence it would be useless for the Eastern railroad company to pay the ship¬ pers or the car line companies rebates on freight the Eastern company might not receive, and which the initial carrier alone had the routing of. As soon as the routing was agreed upon and the through tariff rates fixed, the Eastern connections had to do business with the initial carriers instead of the car company or the shipper. The shippers prepay or guarantee freight charges to destination. The initial carrier does not assume liability from damage resulting from negligence of any connecting line.

The Commission (the chairman, Mr. Com¬ missioner. Knapp, dissenting) ordered the defendants to cease from exacting from the shippers .the right to themselves make thr route which the freight should take. The ground taken by the Commission was that such routing by the initial carriers sub¬ jected the shippers to undue, unjust, and unreasonable prejudice and disadvantage, and gave to the carrier an undue and un-

reasonable ‘preference and advantage, and was a violation of the 3d section of the act.

The initial carriers, believing the Com¬ mission had erred in its decision, refused to obey the order which it made, and there¬ upon the Commission, pursuant to the 16th section of the act, filed its bill in the cir¬ cuit court for the purpose of enforcing its order.

The bill thus filed by the Commission was demurred to by the defendants, and the demurrer was overruled. 123 Fed. 598.

The railroad companies then answered, and the case, after the taking of further evi¬ dence, came up for final hearing, when the order of the Commission was affirmed and directed to be enforced (132 Fed. 829), although the circuit court put the affirm¬ ance on the ground that the agreement as to routing showed that there was a violation of § 5 of the interstate commerce act, in that such agreement amounted to a contract or combination for the pooling of freights. The court passed upon no other question raised in the case. A very full statement of facts is contained in the report in 132 Fed. supra.

A motion was made for a supersedeas pending the hearing of this appeal, which, for the reasons stated in the opinion of the circuit court, was denied. 137 Fed. 606.

Mr. Maxwell Evarts argued the cause, and, with Mr. R. S. Lovett, filed a brief for appellant, the Southern Pacific Company:

588

The court is not to decide whether the appellants have violated an order which the Commission might have lawfully made, but whether they have violated one which was lawfully made.

Interstate Commerce Commisson v. Dela¬ ware, L. & IF. R. Co. 5 Inters. Com. Rep. 144, 64 Fed. 723; Detroit, G. H. & M. R. Co. v. Interstate Commerce Commission , 21 C. C. A. 103, 43 U. S. App. 308, 74 Fed. 803; Interstate Commerce Commission v. Louis¬ ville <& N. R. Co. 73 Fed. 409; Farmers’ Loan & T. Co. v. Northern P. R. Co. 83 Fed. 249.

At common law the appellants could route through freight beyond their own terminals, and they have not been deprived of such right by the interstate commerce act

Atchison, T. & 8. F. R. Co. v. Denver £ N. O. R. Co. 110 U. S. 667, 28 L. ed. 291, 4 Sup. Ct. Rep. 185; Louisville & N. R. Co. v. West Coast Naval Stores Co. 193 U. S. 483, 497, 49 L. ed. 1135, 1140, 25 Sup. Ct. Rep. 745 ; Post v. Southern R. Co. 103 Teen. 184, 55 L.R.A. 481, 52 S. W. 301.

The joint tariff is a matter entirely of private arrangement between the carriers, not governed in any way by the act.

Chicago <£- N. W. R. Co. v. Osborne, 4 Inters. Com. Rep. 257, 3 C. C. A. 347. 10 U. S. App. 430, 52 Fed. 912; Little Rock & M. R. Co. v. St. Louis S. W. R. Co. 26 L.R.A. 192, 4 Inters. Com. Rep. 8d4, 11 C; C. A. 417, 27 U. S. App. 380, 63 Fed. 775; Kentucky & I. Bridge Co. v. Louis¬ ville &. N. R. Co. 2 L.R.A. 289, 2 Inters. Com. Rep. 351, 37 Fed. 567.

Before the carrier can be deprived of its right to route freight beyond its own termi¬ nal, which it has at common law, it must so appear by the clear and specific terms of the act.

Little Rock & M. R. Co. v. St. Louis S. W. R. Co. supra.

There is nothing in the act which gives the Commission the power to change the tariff as filed, and say what sort of a joint tariff should be made.

Central Stock Yards Co. v. Louisville & N. R. Co. 63 L.R.A. 213, 55 C. C. A. 63, 118 Fed. 113, Affirmed in 192 U. S. 568, 48 L. ed. 565, 24 Sup. Ct. Rep. 339; Prescott <6 A. C. R. Co. v. Atchison , T. & S. F. R. Co. 73 Fed. 438; Cincinnati, N. O. <£ T. P. R. Co. v. Interstate Commerce Commission, 162 U. S. 184, 197, 40 L. ed. 935, 939, 5 Inters. Com. Rep. 391, 16 Sup. Ct. Rep. 700; Interstate Commerce Commission v. Baltimore & O. R. Co. 3 Inters. Com. Rep. 192, 43 Fed. 37.

When two carriers unite in a joint tariff, the requirement is only that such joint tariff shall be filed with the Commission, and nothing but the kind and extent of

200 U. S.

Southern P. Co. v. Interstate Com. Commission.

publication thereof is left to the discretion of the Commission.

Interstate Commerce Commission v. Cin¬ cinnati , N. 0. d T. P. R. Co. 167 U. S. 479, 504, 42 L. ed. 243, 254, 17 Sup. Ct. Rep. 896.

Mr. Robert Dunlap also argued the cause, and, with Messrs. Thomas J. Norton and Gardiner Lathrop, filed a brief for ap¬ pellants, the Atchison, Topeka, & Santa Fe Railway Company. Santa Fe Pacific Rail¬ road Company, and Southern California Railway Company:

If the Commission have misconstrued or misapplied the provisions of this law, their order is invalid.

Interstate Commerce Commission v. Le¬ high Valley R. Co. 74 Fed. 784; Detroit, G. E. d M. R. Co. v. Interstate Commerce Commission, 21 C. C. A. 103, 43 U. S. App. 308, 74 Fed. 803; Interstate Commerce Commission v. Delaware, L. d TF. R. Co. 5 Inters. Com. Rep. 146, 64 Fed. 723; East Tennessee, V. d- G. R. Co. v. Interstate Com¬ merce Commission, 181 U. S. 1, 45 L. ed. 719, 21 Sup. Ct. Rep. 516.

The facts found by the Commission were insufficient to warrant its conclusions and orders, and it is therefore evident that the Commission erred in applying the law to the case before them.

Louisville d N. R. Co. v. Behlmer, 175 U. S. 674-676, 44 L. ed. 319-320, 20 Sup. Ct. Rep. 209.

The Commission erred in holding that the routing provision in question, made on con¬ dition or in consideration of the making the joint tariff rate, subjected the shippers to undue prejudice, and gave initial carriers an undue advantage.

Ilwaco R. d- Nav. Co. v. Oregon Short Line d U. N. R. Co. 5 Inters. Com. Rep. 627, 6 C. C. A. 495, 15 U. S. App. 173, 57 Fed. 673; Little Roclc d M. II. Co. v. East Tennessee, V. d G. R. Co. 4 Inters. Com. Rep. 261, 47 Fed. 771; Mannheim Ins. Co. v. Erie d W. Transp. Co. 72 Minn. 357, 75 N. W. 602.

The supposed right of the shipper to route is neither recognized nor protected by any provision of the interstate commerce act. It is purely a matter of agreement.

Eastings v. Pepper. 11 Pick. 43: Snow v. Indiana, B. d IF. R. Co. 109 Ind. 422, 9 N. E. 702; Chicago, I. d- L. R. Co. v. Wood¬ ward (Ind.) 72 N. E. 558; White v. Ashton, 51 N. Y. 280; Einckley v. New York C. d E. It. R. Co. 56 N. Y. 429; Indianapolis d C. It. Co. v. Remmy, 13 Ind. 518; Patten v. Union P. R. Co. 29 Fed. 591 ; Post v. South¬ ern R. Co. 10'3 Tenn. 220. 55 L.R.A. 481, 52 S. W. 301 ; Loice v. Seaboard Air Line R. Co. 63 S. C. 248, 90 Am. St. Rep. 678, 41 S. E. 297.

As the assertion of the right to route by

200 U. S.

the initial carrier contrary to the wishes of the shipper is not “something done or omitted to be done in violation of the pro¬ visions” of the interstate commerce act, or any law cognizable by the Commission, the Commission had no authority to make the order in question, since its power and juris¬ diction is confined to investigations con¬ cerning something done or omitted to be done in violation of the provisions of that law.

Wannan v. Scottish C. R. Co. 1 Nev. & MacN. (Railway & Canal Traffic Cases), 237 ; Bennett v. Manchester, S. d L. R. Co.

1 Railway & Canal Traffic Cases, 288, 6 C. B. N. S. 707.

Agreements between connecting carriers concerning the making of joint rates and conditions applicable thereto are purely matters of voluntary agreement between such carriers.

Kentucky d I. Bridge Co. v. Louisville d N. R. Co. 2 L.R.A. 289, 2 Inters. Com. Rep. 351, 37 Fed. 629; 4 Elliott, Railroads, § 1685; Little Rock d M. R. Co. v. St. Louis, I. M. d S. R. Co. 4 Inters. Com. Rep. 537, 59 Fed. 400, 26 L.R.A. 192, 4 Inters. Com. Rep. 854, 11 C. C. A. 417, 27 U. S. App. 380, 63 Fed. 775; Oregon Short Line d U. N. R. Co. v. Northern P. R. Co. 4 Inters. Com. Rep. 249, 51 Fed. 465, Affirmed in 4 Inters. Com. Rep. 718, 9 C. C. A. 409, 15 U. S. App. 479, 61 Fed. 158; St. Louis Drayage Co. v. Louisville d N. R. Co. 5 Inters. Com. Rep. 137, 65 Fed. 39; Prescott d A. C. R. Co. v. Atchison, T. d- S. F. It. Co. 73 Fed. 438; Gulf, C. d S. F. R. Co. v. Miami S. S. Co. 30 C. C. A. 142, 52 U. S. App. 732, 86 Fed. 407 ; Louisville d N. R. Co. v. West Coast Naval Stores Co. 198 U. S. 497, 498, 49 L. ed. 1140, 1141, 25 Sup. Ct. Rep. 745; Little Rock d M. R. Co. v. St. Louis, I. M. d S. R. Co. 2 Inters. Com. Rep. 763, 41 Fed.

Beyond the requirement that such agree¬ ments or tariffs shall be filed with the Com¬ mission, and the tariffs may be required to be published, as the Commission may de¬ termine, they are not subject to any regula¬ tion or control by the Commission; nor are they otherwise affected by any provision of the interstate commerce act. No pro¬ vision in that law forbids or makes unlaw¬ ful the routing provision which was imposed by the initial carriers as a condition of their making or entering into the joint rate in question.

Interstate Commerce Commission v. Cin¬ cinnati, N. O. d T. P. R. Co. 16/ U. S. 504- 506, 42 L. ed. 254-256, 17 Sup. Ct. Rep. 896; Cincinnati, N. O. d T. P. R. Co. v. Interstate Commerce Commisison, 162 U. S. 197, 40 L. ed. 939, 5 Inters. Com. Rep. 391, 16 Sup Ct. Rep. 700; Nicholson v. Great

589

Supreme Court of the United States.

Oct. Term,

Western R. Co. 7 C. B. N. S. 755; 1 Nev. & MacM. 149; Interstate Commerce Com¬ mission v. Alabama Midland R. Co. 21 C. C. A. 51, 5 Inters. Com. Rep. 685, 41 U.

S. App. 453, 74 Fed. 723; Interstate Com¬ merce Commission v. Western & A. R. Co. 35 C. C. A. 217, 93 Fed. 91; Interstate Commerce Commission v. Western A A. R. Co. 4 Inters. Com. Rep. 120, 88 Fed. 196.

Neither the Commission nor the court could make a different agreement or con¬ tract for these carriers than the one made by such carriers, and the attempt of the Commission to keep in force the joint rate, and strike out the condition or consider¬ ation therefor, would be equivalent to mak¬ ing a new agreement for the parties which they did not desire to make.

Little Roclc £ M. R. Co. v. St. Louis S. W. R. Co. 26 L.R.A. 192, 4 Inters. Com. Rep. 854, 11 C. C. A. 417, 27 U. S. App. 380, 63 Fed. 779; Southern P. Co. v. Colorado Fuel £ Iron Co. 42 C. C. A. 12, 101 Fed. 779; Little Rock £ M. R. Co. v. St. Louis, I. M. £ S. R. Co. supra; Pullman’s Palace Car Co. v. Missouri P. R. Co. 115 U. S. 587, 29 L. ed. 499, 6 Sup. Ct. Rep. 194; Atchison,

T. £ S. F. R. Co. v. Denver £ N. O. R. Co. 110 U. S. 682, 683, 28 L. ed. 297, 14 Sup. Ct. Rep. 185; Express Cases, 117 U. S. 1, 29, 29 L. ed. 791, 803, 6 Sup. Ct. Rep. 542,

Any restriction upon the supposed right of the shipper to divert his shipment while in transit would not be in violation of the interstate commerce law. The privilege of diverting this traffic, as practised by the shippers thereof, was merely a concession granted by the carriers, to which the ship¬ pers were not entitled as a matter of right.

Pinnix v. Charlotte £ S. C. R. Co. 66 N. C. 34; Ellis v. Willard, 9 N. Y. 529; Violett v. Settinius, 5 Cranch, C. C. 559, Fed. Cas. No. 16,953; Braithwaite v. Aiken, 1 N. D. 455, 48 N. W. 354; Hutchinson, Carr. 2d ed. § 444a.

The initial carriers should have the right to route under the joint tariffs or joint through rates. The condition in question was lawful and valid and facilitated trans¬ portation.

Post v. Southern R. Co. 103 Tenn. 220, 55 L.R A. 481, 52 S. W. 301.

Section 5 of the interstate commerce act does not prohibit a mere division of traffic between connecting lines, even if com¬ petitive. It only concerns agreements for a division of receipts or earnings, which are to be combined or pooled and afterwards distributed upon an agreed proportion or ratio.

United States v. Trans-Missouri Freight Asso. 24 L.R.A. 73, 4 Inters. Com. Rep. 443,

7 C. C. A. 15, 19 U. S. App. 30, 58 Fed. 65!

590

The word “freights” in § 5 has a mean¬ ing akin to “earnings” as it is used in the same connection.

4 Words & Phrases Judicially Defined, pp. 2973-2976; 3 Kent, Com. 12th ed. p. 219; The Main v. Williams , 152 U. S. 129, 38 L. ed. 383, 14 Sup. Ct. Rep. 486; Giles v. The Cynthia, 1 Pet. Adm. 203, Fed. Cas. No. 5,424; Poland v. The Spartan, 1 Ware, 130, Fed. Cas. No. 11,246; Lord v. Neptune Ins. Co. 10 Gray, 112; Schenley’s Appeal, 70 Pa. 101 ; Hadley v. Perks, L. R. 1 Q. B. 455; Lewis’s Sutherland, Stat. Constr. §§ 414-416; Holman’s Appeal, 106 Pa. 502; Newport News £ M. Valley Co. v. United States, 9 C. C. A. 579, 22 U. S. App. 145, 61 Fed. 488.

To justify a finding of undue preference either as between shippers or traffic it must be shown that they come in compe¬ tition with each other so that injury re¬ sults to the one by reason of the preference given the other. v

Interstate Commerce Commission v. Baltimore £ 0. R. Co. 3 Inters. Com. Rep. 192, 43 Fed. 37 ; United States v. Chicago £ N. W. R. Co. 62 C. C. A. 465, 127 Fed. 785 ; Hosier v. Caledonian R. Co. 1 Nev. & MacN. 27 ; Interstate Commerce Commission v. Baltimore £ 0. R. Co. 145 U. S. 282-284, 36 L. ed. 705, 706, 4 Inters. Com. Rep. 92, 12 Sup. Ct. Rep. 844; Nicholson v. Great Western R. Co. 1 Nev. & MacN. 150; Lees, Lancashire, R. Co. 1 Nev. & MacN. 352; Nicholson v. Great Western R. Co. 1 Nev.

& MacN. 121; Phipps v. London £ N. 17. R. Co. [1892] 2 Q. B. 236.

As the initial carrier, by making a joint rate which, under the law, it could not be compelled to make, affords the shipper a concession, it has the right to stipulate for the consideration or condition upon which such joint rate shall be offered; and in imposing this condition it does not give itself an unjust advantage or subject the shippers of this traffic to an undue disad¬ vantage. It is identical with a case in which the carrier affords to the shipper rates for carriage at “owner’s risk” much less than rates applicable to carriage at “carrier’s risk.”

Mannheim Ins. Co. v. Erie £ W. Transp. Co. 72 Minn. 357, 75 N. W. 602; Post v! Southern R. Co. supra.

The joint through rate is applicable where the carrier exercises the right to route. The sum of the locals is the through rate applicable where the shipper exer¬ cises the right to route.

Didcot It. Co. v. Great Western R. Co. 10 ' Railway & Canal Traffic Cases, 5.

In this proceeding the Federal courts have no power or authority to make another

200 U. S.

Southern P. Co. v. Interstate Com. Commission.

or different order than that made by the Commission, or to modify the one made.

Interstate Commerce Commission v. Louisville & N. R- Go. 73 Fed. 409; Inter¬ state Commerce Commission v. Delaware,

L. & IF. R. Co. 5 Inters. Com. Rep. 146, 64 Fed. 723; Detroit, G. H. & M. R ■ Go. v. Interstate Commerce Commission, 21 C. C. A. 103, 43 U. S. App. 30$, 74 Fed. 803; Farmers’ Loan & T. Co. v. Northern P. R. Co. 83 Fed. 249 ; Interstate Commerce Com¬ mission v. Western New York & P • R- Go.

82 Fed. 192. ,

Mr. I.. A. Shaver argued the cause and

filed a brief for appellee:

Competition is favored by the laws.

East Tennessee, V. & G. R. Co. v. state Commerce Commission, 39 C. C. A. 413 99 Fed 61; United States v. Trans- uteri' Freigk, A, so. IX U.

41 L. ed. 1027, 1028, 17 Sup. Ct. Rep. 540

Defendants concede to the shipper the right to select the route on condition of his paving a higher rate (the sum of the

locals) for the privilege.

The exaction of the sum of the locals as a through rate results in an unreasonable

or excessive rate. n ,

King v. New York. N. E. d H. R. Co. 3 Inters. Com. Rep. 272; Augusta Southern R. Co. v. Wright sville & T. R. Co. 74 ^ Fed- 527 ; Minneapolis d St. L. R. Co. v- ^wne. sota, 186 U. S. 262, 46 R e<L 1155, 22 Sup. Ct. Rep. 900; Chicago , M. & St. P. K. Co. v. Tompkins, 176 U. S. 167, • e

417, 20 Sup. Ct. Rep. 336.

Mr Joseph H. Call also argued the

cause and filed a brief for appellee:

The rule and practice of defendants serving absolute control of routing, as found by the Commission, is, as matter ot law in 'violation of § 6 of the commerce act, providing for joint tariffs over connect¬ ing railroads showing “continuous lines of routes.” and prohibiting a greater charge than tariff rates for shipments over such

1 i T1

Cincinnati, .V. 0. T. P. A Co v. 1* state Commerce Commission, 162 U. fe. .

199 40 L. ed. 935, 938, 5 Inters. Com. Rep. 39l’ 16 Sup. Ct. Rep. 700; Minneapolis & St L R Go. v. Minnesota, 186 U. S. 263, 264 46 L. ed. 1156, 22 Sup. Ct. Rep. 900.

The provisions of § 5 of the interstate commerce act and of § 7 of the Sherman antitrust act both relate to the regulation of interstate commerce, — a subject within the plenary power of Congress under the Con¬ stitution. .

They both prohibit combinations and agreements between individuals or corpo¬ rations which have for their object the stifling of competition and obstruction o

200 U. S.

interstate commerce by simultaneous action between competing lines.

Section 5 of the interstate commerce act is expressly leveled against railroad cor¬ porations engaged in interstate commerce, while § 7 of the Sherman antitrust act in¬ cludes all persons, and it has been held to include railways engaged in interstate commerce.

United States v. Trans- Missouri Freight Asso. 166 U. S. 290, 41 L. ed. 1007, 17 Sup. Ct. Rep. 540; United States v. Joint Traf¬ fic Asso. 171 U. S. 505, 578, 43 L. ed. 259, 290, 19 Sup. Ct. Rep. 25; Addyston Pipe d Steel Co. v. United States, 175 U. S. 211, 248, 44 L. ed. 136, 150, 20 Sup. Ct. Rep. 96; W. W. Montague & Co. v. Lowry, 193 U. S. 38, 48 L. ed. 608, 24 Sup. Ct. Rep. 307 ; Swift & Co. v. United States, 196 U. S. 375,’ 49 L. ed. 518,25 Sup. Ct. Rep. 276; Interstate Commerce Commission v. Baird, 194 IT. S. 25, 47, 48 L. ed. 860, 870, 24 Sup. Ct. Rep. 563.

These acts, being in pari materia, by a settled rule of construction are to be con¬ sidered together and read as a single act, the latter being amendatory of the first.

Chew Heong v. United States, 112 U. S. 536, 28 L. ed. 770, 5 Sup. Ct. Rep. 255; Chicago, M. & St. P. R. Co. v. United States, 127 U. S. 406, 32 L. ed. 180, 8 Sup. Ct Rep. 1194; District of Columbia v. Hutton, 143 U. S. 18, 36 L. ed. 60, 12 Sup. Ot. Rep. 369.

Whatever the method employed, if the defendant railways— they being different and competing lines — have actually ac¬ complished, or have agreed or combined to accomplish, by the routing rule, a pool of freights or a division of the aggregate or net proceeds of the earnings, they clearly have violated the statute.

Tift v. Southern R. Co. 138 Fed. 753.

Statutes intended to prevent fraud and wrong, although containing penal pro¬ visions, are to be construed liberally in favor of the public.

Taylor v. United States , 3 How. 197, 210, 11 L. ed. 559, 564; Smythe v. Fiske, 23 Wall. 374, 380, 23 L. ed. 47, 49; United States v. Stowell, 133 U. S. 1, 12, 33 L. ed. 555, 558, 10 Sup. Ct. Rep. 244.

Franchises, privileges, and powers claimed under authority of the state or nation are to be construed in favor of the public, and against the grantee, and nothing will be deemed to have been passed or taken against the public upon any implication, and all doubts and ambiguities are to be construed favorably to the government.

Dubuque & P . R- Go. v. Litchfield, 23 How. 83, 88, 16 L. ed. 507, 509; Leaven¬ worth, L. & G. R. Go. v. United States, 92 U S 733, 740, 23 L. ed. 634, 637; Coosaw

591

350-352

Supreme Court of the United States.

Min. Co. v. South Carolina, 144 U. S. 550, 562, 30 L. ed. 537, 542, 12 Sup. Ct. Rep. 689; Holyoke Water Power Co. v. Lyman, 15 Wall. 500, 512, 21 L. ed. 133, 137 ; Sli¬ dell v. Crandjean, 111 U. S. 412, 437, 28 L. ed. 321, 329, 4 Sup. Ct. Rep. 475; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 6S5, 696, 41 L. ed. 1165, 1168, 17 Sup. Ct. Rep. 718.

Bill of complaint shows discrimination by defendant carriers forbidden by supplemen¬ tary act of February 19, 1903. This suit is maintainable independently of any report by Commission.

Missouri P. R. Co. v. United States, 189 U. S. 274, 284, 47 L. ed. 811, 814, 23 Sup. Ct. Rep. 507.

Mr. Justice Feckham, after making the foregoing statement, delivered the opinion of the court:

Although there are separate proceedings in these various cases, the question arising in all is identical, and the crises will here¬ after be spoken of as if there were but one proceeding before the court. The single question presented is, Has the carrier that takes the fruit from the shipper in Cali¬ fornia the right, under the facts herein, to insist upon the rule permitting such car¬ rier to route the freight at the time it is received from the shipper?

The Commission has decided that the carrier has not the right, and that the rule denies to shippers the use of their trans¬ portation facilities, which such shippers are entitled to, and that, in its application by the initial carriers to the fruit traffic, the shippers are subjected to undue, unjust, and unreasonable prejudice and disadvan¬ tage, and the carriers are given an undue and unreasonable preference and advantage.

If this be the necessary effect of the rule, it may be assumed to be a violation of §

3 of the interstate commerce act, and the Commission, therefore, rightly ordered the carriers to desist from observing it.

By § 16 of the act, the circuit court is given authority to enforce “any lawful order or requirement of the Commission.” If the order be not a lawful one, the court is with¬ out power to enforce it. Whether or not such order was lawful is the matter to be determined.

The Commission does not find that any contract existed between the initial carrier and its Eastern connections to bill the fruit according to certain proportions among the connecting railroads. The Commission said:

“The situation warrants the inference, however, that these two initial carriers or systems, connecting with other carriers at various points, and they, in turn, connect-

592

ing with numerous other carriers, as shown by the tariff, are able, by acting in concert, and routing as they see fit, to only send traffic over the roads of such carriers a3 fulfilled an agreement to refrain from mak¬ ing any rate concession to the shippers, and some influence of like character could doubt¬ less be exerted by them upon the car lines which are also hereinafter referred to.”

Such statement simply shows that if any Eastern railroad with which an agree¬ ment for joint through rates existed should give rebates on the joint through rate tar¬ iff, thus carrying freight below the rates agreed upon as the through rate tariff, that road would not get the freight.

We see nothing in the initial carrier en¬ deavoring to maintain the rates agreed up¬ on as a through rate tariff, and thereby preventing the paying of rebates, which in itself is a violation of the act. The act especially prohibits, in the 6th section, any alteration of the rates agreed upon, in favor of any person or persons. There is no finding that there has in fact, as a re¬ sult of the rule, been any discrimination or unjust action as between the initial car¬ riers and the shippers themselves, and there is no evidence that any was ever practised.

*In the examination of the rule it is well

to bear in mind the situation of the com¬ panies and the business at the time of its adoption. It is fully set forth in the fore¬ going statement of facts. The payment of the rebates was a shame, and was in truth unsatisfactory to all the railroads, besides being plainly a violation of the commerce act.

We think there is nothing in the act which clearly prohibits the roads from adopting the rule in question. The decision turns upon the construction of a statute which at least does not in terms prohibit.

In cases such as this a court is bound to consider the bearing of the result of either construction upon the general pur¬ poses of the act. In enacting the commerce act this court has stated that the object of Congress was to facilitate and promote commerce by the adoption of regulations to make charges for transportation just and reasonable, and to forbid undue and unrea¬ sonable preferences or discriminations.

Texas & P. R. Co. v. Interstate Commerce Commission, 162 U. S. 197, 40 L. ed. 940,

5 Inters. Com. Rep. 405, 16 Sup. Ct. Rep.

The importance of the rule in this case, so far as the shipper is concerned, is not so great as is its importance to the rail¬ roads in preventing rebates. If the right of routing be looked at alone, without any connection with the claimed right of divert¬ ing the freight, the rule itself would be gen-

200 U. S.

SOUTHEBN P.' CO. V. INTERSTATE COM. COMMISSION.

552-555

erally of little importance to the shipper. In all probability the freight gets to its destination when routed by the carrier as early as if rbuted by the shipper, and in that event the particular route taken is not very important to the latter. The evidence before the circuit court shows that the routing, when done by the carrier, was fair¬ ly apportioned among the Eastern connec¬ tions, having an eye to good service and ex¬ pedition, and the roads that the routing was done over were the best roads in the country ; the roads that have been elimi¬ nated were the roundabout roads; there were no roads that were insolvent, so far as known by the witnesses. Now, as the fact appears that the actual routing is generally conceded the shipper, and also his request for a diversion allowed, there is nothing in

the mere ‘right of routing by the compa¬ nies, separate from other facts, of which the shipper can properly complain. The Com¬ mission says it does not distinctly appear in testimony that a delivery by a particular terminal road has been denied in any par¬ ticular case, yet the manifest evil results of an arbitrary application of the rule must be considered in determining its legality. If there is no such arbitrary application, we do not agree that the rule itself is to be held illegal because a violation of the act may be committed, while the evidence is that none in fact was committed. It does appear that the mere existence of the right to route on the part of the company has ended the practice of rebating. But the opportunity to obtain rebates on the part of the shipper is surely not a ground for action by the Commission or by the court. Of course, if, in attempting to cut off re¬ bates, there is a violation of the act, the act must be followed, and that means of prohibiting them must be abandoned. Courts may well look with some degree of care before so construing a statute which confessedly does not in terms so provide, as to prohibit such a rule on the ground that it would be a violation of the statute. We are of opinion that the rule is not a viola¬ tion thereof.

It is conceded that the different railroads forming a continuous line of road are free to adopt or refuse to adopt joint through tariff rates. The commerce act recognizes such right, and provides for the filing, with the Commission, of the through tariff rates, as agreed upon between the companies. The whole question of joint through tariff rates, under the provisions of the act, is one of agreement between the companies and they may, or may not, enter into it, as they may think their interests demand. And it is equally plain that an initial car¬ rier may agree upon joint through rates 200 U. S.

with one or several connecting carriers, who, between each other, might be regard¬ ed as competing roads.

It is also undoubted that the common car¬ rier need not contract to carry beyond its own line, but may there deliver to the next succeeding carrier, and thus end its respon¬ sibility, ‘and charge its local rate for the

transportation. If it agree to transport be¬ yond its own line, it may do so by such lines as it chooses. Atchison, T. & S. F.

R. Co. v. Denver & N. 0. R. Go. 110 U. S.

667, 28 L. ed. 291, 4 Sup. Ct. Rep. 185; Louisville & N. R. Co. v. West Coast Naval Stores Co. 198 U. S. 483, 49 L. ed. 1135,

25 Sup. Ct. Rep. 745. This right has not been held to depend upon whether the origi¬ nal carrier agreed to be liable for the de¬ fault of the connecting carrier after the goods are delivered to such connecting car¬ rier. As the carrier is not bound to make a through contract, it can do so upon such terms as it may agree upon; at least, so long as they are reasonable and do not other¬ wise violate the law. In this case, the initial carrier guarantees the through rate, but only on condition that it has the rout¬ ing. It was stated by the late Mr. Justice Jackson of this court, when circuit judge, in the case of Interstate Commerce Com¬ mission v. Baltimore dc 0. R. Co. 3 Inters.

Com. Rep. 192, 43 Fed. 37, as follows:

“Subject to the two leading prohibitions that their charges shall not be unjust and unreasonable, and that they shall not un¬ justly discriminate, so as to give undue pref¬ erence or advantage, or subject to undue prejudice or disadvantage persons or traffic similarly circumstanced, the act to regulate commerce leaves common carriers as they were at common law, free to make spe¬ cial contracts looking to the increase of their business, to classify their traffic, to adjust and apportion their rates so as to meet the necessities of commerce, and generally to manage their important interests upon the same principles which are recognized as sound, and adopted in other trades and pur¬ suits.”

This statement was _ approved by this court in Cincinnati, N. 0. t€ T. P. R. Co. v. Interstate Commerce Commission, 162 U. S. 184-197, 40 L. ed. 935, 939, 5 Inters. Com.

Rep. 391, 16 Sup. Ct. Rep. 700.

Having this right to agree on a joint through tariff on terms mutually satisfac¬ tory, we cannot find anything in the com¬ merce act which forbids the agreement with such a condition therein as to routing.

It is said that the 6th section, property construed, prohibits such condition. We confess our inability to find anything in that section which does so.

‘The fact that the rate, when agreed up-

593

555-557

Supreme Court of the United States.

Oct. Term,

on, must be filed with the Commission, and made public by the common carriers when directed by the Commission, does not pre¬ vent the adoption of an agreement for a through rate tariff with the condition as stated. Nor does the provision granting power to the Commission to prescribe forms of schedules of rates, as provided for in the 6th section, have any such effect. Where there is an agreed through rate tariff, and as part of such agreement, which is joined in by several railroads, the right to route cars is reserved to the initial carrier, we do not think that the shipper, by virtue of the 6th section, has the right to ignore the condition which is part of the agreement under which the through rate is made and is guaranteed.

We cannot see that the rule violates the 3d section of the act. All the facts referred to by the Commission are nothing but state¬ ments as to how, under such a rule, there might occur a violation of that section, but we find nothing in the facts stated by the Commission, showing that such violation had occurred. In truth, the companies did not always even enforce the rule; still le«s did they discriminate against shippers or in favor of carriers. On the contrary, the Commission stated that “while the ini¬ tial carriers do not always route as request¬ ed by the shippers, they generally comply with their request.” The mere failure to do so does not, however, prove a violation of the section.

The right to route is also complained of because the rule confined it to the fruit business, and therefore it was, as contend¬ ed, a discrimination against those engaged in it or against the traffic itself. The transportation of this fruit is a special business; large interests are involved in it, and particular pains are taken to transport it as speedily as possible. With regard to all other freight it has substantially noth¬ ing in common. The cases are wholly un¬ like, and there has been no proof or com¬ plaint as to rebates being given in connec¬ tion with other freight, and the witnesses for the railroad state if there were any evi¬ dence or complaint’ of such rebates, the

same rule as to ‘routing would be immediately adopted. As has been said, there is no pretense of discrimi¬ nation under this rule between the shippers of freight themselves. There seems to be unanimous agreement that all shippers are treated alike and are granted the same privileges, and the routing is generally ac¬ corded them. It is the po\yer to route, which rests with the initial carrier, that really takes away the motive for a rebate in the manner indicated, and, therefore, the granting of the request of the shipper as 594

to a particular route may be, and is, gen¬ erally conceded without danger that the rebate business may be again practised.

The important facts that control the situation are that the carrier need not agree to carry beyond its own road, and may agree upon joint through tariff rates or not, as seems best for its own interests. Having these rights of contract, the carrier may make such terms as it pleases ; at least, so long as they are reasonable and do not otherwise violate the law. We think the routing rule is not unreasonable under the facts herein, and that it does not violate the 3d section of the act.

Because opportunities for the violation of the act may occur by reason of the rule is no ground for holding, as a matter of law, that violations must occur, and that the rule itself is therefore illegal. We are, consequently, unable to concur in the view taken by the Commission that the rule violates the 3d section of Hie act.

Upon the proceeding before the circuit court, that court did not pass upon the question decided by the Commission, but held that the routing rule agreed to between the initial carrier and the various Eastern companies, and forming a part of the sub¬ sequent joint through tariffs which were filed with the Commission, was in itself a contract or combination for the pooling of freights.

The defendants objected that the circuit court had no authority to decree the en¬ forcement of the order upon any other ground than that taken by the Commission itself. We think that the court was not confined to those grounds, and if it ‘found

the rule was, in itself, for any reason ille¬ gal as a violation of the act, the order might be valid and be a lawful order, al¬ though the Commission gave a wrong rea¬ son for making it. If it held the rule to be a violation of one section, the order to desist might be valid if, instead of the sec¬ tion named by the Commission, the court should find that the rule was a violation of another section of the act. All the facts being brought out before the Commission or the court, the court could decide whether the order was a lawful one, without being confined to the reasons stated by the Com¬ mission. We therefore look to see the ground taken by the circuit court.

That court found that the rule was adopted to uphold their published rates; or, in other words, to maintain the rates on the joint through tariff. Although, under the previous through rate tariff, these rates had been secretly cut by the Eastern connections of the initial carriers, yet, when the routing rule was agreed to as part of the through rate tariff, these re-

200 U. S.

SOUTHERN P. CO. V. INTERSTATE COM. COMMISSION.

557-559

bates ceased. Hence, as the court said, the purpose of the rule was undoubtedly to maintain the through rate tariff, and that it was effectual. But the court held, as a result, that this routing provision, being part of the through rate tariff agreed to by the various Eastern roads, made a con¬ tract among those roads for the pooling of freights on competing railroads within the meaning of § 5 of the commerce act. It held that it was not necessary, in order to form a pool, in violation of that section, that the contract or agreement should fix the percentages of freight the several rail¬ roads were to receive, or that the rail¬ roads should know in advance what the per¬ centages should be; that it was sufficient to constitute a pool if the contract or agree¬ ment provided for special means or agencies for apportioning freights, which would destroy the rivalry which would otherwise exist between the competing railroads; and an agreement by which the apportionment was left to the will of the initial carrier accomplished that purpose as effectually as though definite percentages were fixed in the contract; that defendant’s plan to

maintain through rates *through the opera¬ tion of the routing rule necessarily destroyed competition, and the adoption of the rout¬ ing rule put the shippers in a position where their patronage could not possibly be competed for by the defendant’s Eastern connections.

Thus the mere fact that the initial car¬ rier was granted by this through tariff agreement the right to route the freight was held to result in the formation of a pool, in violation of the 5th section of the act. There was no other agreement proved in the case. It is stated by the Commission that the shipments are forwarded by the initial carrier so as to give certain per¬ centages of the traffic to connecting lines. At the same, time the Commission finds that initial carriers generally comply with the requests of the shippers to route the freight as desired. The substance of the report of the Commission is, therefore, that there is a certain percentage of the traffic given the connecting carriers when there is no re¬ quest for routing given by the shippers. It amounts to the giving of fair treatment to the connecting carriers. It is true the Commission calls this a tonnage pool be¬ tween the connecting carriers, to which the initial carriers give effect by their routing arrangement, and that its object was not so much to prevent rebates, which was but an incident, as to affect the tonnage division. We are of opinion, however, that the evi¬ dence is substantially one way, and that is, that the arrangement for routing was

200 U. S.

to break up rebating, and that it has been accomplished. The evidence before the cir¬ cuit court was to the effect that there was no agreement whatever with the eastern o""- nections that any of them should have any particular proportion of the freight, but the Eastern roads entered into the routing agreement because they were satisfied that it would be better that the then piesent practice of rebating, and they thought that they would get a fair share of the business ; or, in other words, would be fairly treated by the initial carriers, who gave them to understand that they would be so treated.

The tonnage pool was, as the witnesses said, a myth; and it was testified to that there was not one of the Eastern ‘companies that

knew what percentage of the whole business that company secured. They simply knew that the through rates were maintained under the operation of the routing agree¬ ment and that rebating ceased; and they were satisfied with the manner of their treatment by the initial carrier.

The circuit court, in order to arrive at its result, necessarily treated the connect¬ ing carriers as rival and competing trans¬ portation lines for this freight, and assumed that between these lines there would ex¬ ist, but for the routing agreement, a com¬ petition for the fruit transportation which could not be extinguished by any agree¬ ment as to routing, as a condition for mak¬ ing through tariff rates ; that as com¬ petition was destroyed by this rule, it was idle to say that such result was not intend¬ ed by the defendant, and so it was held that the carrying out of the routing agreement violated the act.

We think these various roads were real¬ ly not competing roads within the meaning of the 5th section of the commerce act, when the facts are carefully examined. That act recognizes the right of the carriers to agree upon, and provides for the publication of, joint through tariff rates between contin¬ uous roads, on such terms as the roads may choose to make, provided, of course, the rates are reasonable, and no discrimination or other violation of the act is practised.

The initial carrier did not, on its line, reach the Eastern markets, but it reached various connecting railroads which did reach those markets. The initial carrier had the right to enter into an agreement for joint through rates With all or any one of these connecting companies, though such companies were competing ones among themselves. And the agreements could be made upon such terms as the various com¬ panies might think expedient, provided they were not in violation of any other provision of the act.

Prior to the adoption of the routing rule

595

559-561

Supreme Court of the United States.

Oct. Term,

these connecting railroads were already acting under a through rate tariff which continued up to the time when the agree¬ ment for the routing was adopted. When

so acting it was no longer possible to ‘com¬ pete with each other as to rates (and it is upon the rebates as to rates that this whole controversy is founded) provided the com¬ panies fulfilled their joint rate tariff agree¬ ments. The only way the rate competition could exist under the through rate tariff was by violating the law. This, unfortu¬ nately, was habitually done, and during that time the competition consisted in a rivalry between these roads as to which would be the greatest violator of the law by giving the greatest rebates.

In truth, the only way in which these connecting lines could legally become com¬ peting railroads for this California fruit trade would be in the absence of all joint tariff rate agreements. The moment they made such agreements, and carried them out, rate competition would cease.

All that would be needed for the total suppression of rate competition among the connecting railroads would be the honest fulfilment of their agreement as to joint through rates. And just here is where they failed and where they violated their agree¬ ment and tie law by granting rebates; or, in other words, by competing, as to rates, for the freight, in violation of the joint rates. In such case we do not see any violation of the pooling section of the act, by putting in the agreement for joint through rates the provision for routing by the initial carrier. It achieved its purpose and stopped rebating, although it thereby also stopped rate competition which, in the presence of the through rate tariff, was al¬ ready illegal. The railroads are no longer rate-competing roads after the adoption of a through rate tariff by them, and they have no right to privately reduce their rates.

Now, while the most important, if not the only, effect of the routing agreement is to take away this rebating practice, and to hold all parties to that agreement as part of the joint through rate tariff, we think no case is made out of a violation of the pooling provision in the 5th section of the act, even where the initial carrier promises fair treatment to the connecting roads, and carries out such prqmises.

We must remember the general purpose [561 ]of the act, which is, *as has been said, to obtain fair treatment for the public from the roads, and reasonable charges for the transportation of freight,, and the honest performance of duty, with no improper or unjust preference or discrimination. Un¬ der such circumstances, the court ought not to adopt such a strict and unnecessary con- 596

struction of the act as thereby to prevent an honest and otherwise perfectly legal at¬ tempt to maintain joint through rates, by destroying one of the worst abuses known in the transportation business. The effort to maintain the published through joint tariff' rates is entirely commendable.

We think that the agreement in question, upon its face, does not violate any provi¬ sion of the commerce act, and there is no evidence in the case which shows that in fact there has been any such violation.

The decree of the Circuit Court is re¬ versed and the case remanded with instruc¬ tions to dismiss the bill.

Reversed, etc.

CHICAGO, BURLINGTON, & QUINCY RAILWAY COMPANY, Plff. in Err.,

t>.v

PEOPLE OF THE STATE OF ILLINOIS ex rel. I. 0. GRIMWOOD, F. L. O’Brien, and Joseph Eccles, as Commissioners of Drainage District No. One of the Town of Bristol, Kendall County, Illinois.

(See S. C. Reporter’s ed-. 561-601.)

tion — cl ecision on non-Federal

ground. — A state court cannot, by resting its judgment upon some ground of local or general law, defeat the appellate jurisdiction of the Supreme Court of the United States, if a Federal right or immunity was specially set up or claimed which, if recognized and enforced, would require a different judgment.

The police power of a state embraces reg¬ ulations designed to promote the public con¬ venience or the general prosperity as well as those designed to promote the public

Note. — On how and when questions must he raised and decided in a state court in order to make a case for a writ of error from the Supreme Court of the United States — see note to Mutual L. Ins. Co. v. McGrew, 63 L.R.A. 33.

As to what constitutes a taking of private property for public use — see notes to Memphis & C. R. Co. v. Birmingham, S. & T. River R. Co. 18 L.R.A. 166 ; D. M. Osborne & Co. v. Missouri P. R. Co. 37 L. ed. U. S. 156; Sweet v. Rechel, 40 L. ed. U. S. 188; A. Backus & Sons v. Fort Street Union Depot Co. 42 L. ed. U. S. 853 ; and High Bridge Lumber Co. v. United States, 16 C. C. A. 468.

On the drainage of private lands as a pub¬ lic purpose for which the power of eminent domain may be exercised — see note to Re Tut- hill, 49 L.R.A. 781.

As to what constitutes due process of law — see notes to Kuntz v. Sumption, 2 L.R.A. 655 ; Re Gannon, 5 L.R.A. 359 ; Ulman v. Balti¬ more, 11 L.R.A. 224 ; Gilman v. Tucker, 13 L.R.A. 304 ; People v. O’Brien, 2 L.R.A. 255 ; Pearson v. Yewdall, 24 L. ed. U. S. 436 ; and Wilson v. North Carolina, 42 L. ed. U. S. 865.

200 U. S.

Chicago, B. & Q. R. Co. v. Illinois ex rel. Gum wood.

health, the public morals, or the public safe¬ ty.

law — taking private property for public nse. — The imposition upon a rail¬ way company of the entire cost of removing and rebuilding a railway bridge and cul¬ vert made necessary by the proposed widen¬ ing and deepening of the channel of a creek by drainage commissioners acting under the authority of the Illinois farm drainage act of July 1, 1885, does not amount to a tak¬ ing of private property for public use, which requires compensation in order to afford the due process of law guaranteed by the Federal Constitution.

of tlie laws. — The equal protection of the laws guaranteed by the Federal Constitu¬ tion is not denied to a railway company by requiring it to stand the entire expense of removing and rebuilding its bridge and cul¬ vert, made necessary by the proposed widen¬ ing and deepening of the channel of a creek by drainage commissioners acting under the authority of the Illinois farm drainage act of July 1, 1885, to effect the drainage of low lands.

law — taking private property for public use. — The expense of removing the soil attendant upon the widening and deep¬ ening of the channel of a creek across a railroad right of way by drainage commission¬ ers acting under the authority of the Illi¬ nois farm drainage act of July 1, 1885, can¬ not be imposed upon the railway company without denying it the due process of law guaranteed by the Federal Constitution, which requires that compensation be made when private property is taken for public use.

[No. 157.]

Argued December lJf, 1905. Decided March 5, 1906.

IN ERROR to the Supreme Court of the State of Illinois to review a judgment af¬ firming a judgment of the Circuit Court of Kendall County, in that state, awarding mandamus in proceedings presenting the question as to the right to impose upon a railway company the expense attendant upon the removal and rebuilding of & bridge and culvert, made necessary by the widening and deepening of the channel of a creek to subserve the drainage of low lands. Af¬ firmed , subject to the qualification that the expense attendant merely upon the removal of the soil cannot be cast upon the com¬ pany.

See same case below, 212 Ill. 103, /2 N. E. 219.

The facts are stated in the opinion.

Mr. A. J. Hopkins argued the cause, and, with Messrs. Robert Bruce Scott and Chester M. Daices, filed a brief for plaintiff in error:

A writ of error lies from the United 200 U. S. U. S., Book 50.

States Supreme Court where the state court orders a writ of mandamus and a Federal question is involved.

Hartman v. Greenhoio, 102 U. S. 672, 26

L. ed. 271; McPherson v. Blacker , 146 U. S. 1, 36 L. ed. S69, 13 Sup. Ct. Rep. 3; Minne¬ apolis d St. L. R. Co. v. Minnesota , 193 U. S. 53, 48 L. ed. 614, 24 Sup. Ct. Rep. 396.

Even though the state court did not, in its opinion, expressly refer to the Federal Constitution, if the judgment of affirmance necessarily denied Federal rights specially set up by defendant, a writ of error will lie from the United States Supreme Court.

Roby v. Colehour, 146 U. S. 153, 36 L. ed. 9^2, 13 Sup. Ct. Rep. 47 ; Green Bay d

M. Canal Co. v. Patten Paper Go. 172 U. S. 58, 43 L. ed. 364, 19 Sup. Ct. Rep. 97.

The Supreme Court of the United States has jurisdiction in error over a judgment of the supreme court of a state when it necessarily involves the decision of the ques¬ tion — raised in that appellate court for the first time, and not noticed in its opinion — - whether a statute of the state conflicts with the Constitution of the United States.

Arroiosmith v. Harmoning, 118 U. S. 194, 30 L. ed. 243, 6 Sup. Ct. Rep. 1023; Chicago L. Ins. Co. v. Needles, 113 U. S. 574, 579, 28 L. ed. 1084, 1086, 5 Sup. Ct. Rep. 681; McCullough v. Virginia, 172 U. S. 102, 116, 43 L. ed. 3S2, 387, 19 Sup. Ct. Rep. 134; Chapman v. Goodnow ( Chapman v. Crane) 123 U. S. 540, 548, 31 L. ed. 235, 23S, 8 Sup. Ct. Rep. 211; Green Bay d M. Canal Co. v. Patten Paper Co. 172 U. S. 58, 68, 43 L. ed. 364, 368, 19 Sup. Ct. Rep. 97.

Even where this court is left in doubt by the briefs whether the statute, as construed by the state supreme court, was objected to, or only its application under the facts of the case, still, if the statute was directly attacked in the answer, a motion to dismiss the writ of error for want of jurisdiction will be denied, and the court will consider whether the grounds of objection to the statute are substantial and sufficient.

Minneapolis d St. L. R. Co. v. Minnesota, 193 U. S. 53, 61, 48 L. ed. 614, 617, 24 Sup. Ct. Rep. 396.

A Federal question is involved if the ef¬ fect of the state decision is to construe an act alleged to violate the Federal Consti¬ tution, although the state court does not mention the statute.

Houston d T. G. R. Co. v. Texas, 177 U. S. 66, 44 L. ed. 673, 20 Sup. Ct. Rep. 545.

There can be no doubt that the record fairly presented a Federal question for re¬ view.

Detroit, Ft. W. d B. I. R. Co. v. Osborn, 189 U. S. 383, 47 L. ed. 860, 23 Sup. Ct. Rep. 540; Erie R.-Co. v. Purdy, 185 U. S. 148 46 L. ed. 847, 22 Sup. Ct. Rep. 605.

38 ’ 597

Supreme Court of

A railroad corporation is a person within the meaning of the 14th Amendment, declaring that no state shall deprive any person of property without due process of law, nor deny to any person within its juris¬ diction the equal protection of the laws.

Smyth v. Ames, 169 U. S. 466, 626, 42 L. ed. 819, 842, 18 Sup. Ct. Rep. 418; Lake Shore d M. S. R. Co. v. Smith, 173 U. S. 684, 690, 43 L. ed. 858, 861, 19 Sup. Ct. Rep. 565.

Recognizing the difficulty in defining with exactness the phrase “due process of law,” it is certain that these words imply a con¬ formity with natural and inherent prin¬ ciples of justice, and forbid that one man’s property or right of property shall be taken for the benefit of another or for the benefit of the state without compensation.

Holden v. Hardy, 169 U. S. 366, 390, 42 L. ed. 780, 790, 18 Sup. Ct. Rep. 383.

Since the adoption of the 14th Amend¬ ment, compensation for private property taken for public uses constitutes an essen¬ tial element in “due process of law,” and without such compensation the appropria¬ tion of private property to public uses, no matter under what form of procedure it is taken, violates the provisions of the Fed¬ eral Constitution.

Scott v. Toledo, 1 L.R.A. 688, 36 Fed.

Corporations existing for drainage pur¬ poses are public corporations, and, where property is sought to be taken for the pur¬ pose of a ditch, it is for a public use, and compensation must be made before prop¬ erty of an individual can be taken for pub¬ lic use.

Payson v. People, 175 Ill. 276, 51 N. E.

The farm drainage act contemplates pay¬ ment of full damage done, and, if it did not it would be unconstitutional, as a taking of private property for the public use without compensation.

Chronic v. Pugh, 136 Ill. 539, 27 N. E.

The same rules for ascertaining damages which govern proceedings for the condemn¬ ing of private property for public use apply to cases arising under the drainage stat¬ ute.

Oinn v. Moultrie Drainage District, 188 Ill. 305, 58 N. E. 988.

Quasi public corporations are entitled to claim the protection of the Constitution for their property rights.

Monongahela Nav. Co. v. United States, 148 U. S. 313, 37 L. ed. 463, 13 Sup. Ct. Rep. 622; Western U. Teleg. Co. v. Penn¬ sylvania R. Co. 195 U. S. 540, 49 L. ed. 312, 25 Sup. Ct. Rep. 133.

Where, long after the construction of a 598

the United States. Oct. Term,

railroad, a street was extended so as to cross the same, and the city passed an ordi¬ nance requiring the railway company to make a safe and proper crossing by grading the approaches of the street at the crossing, it was held that the company was not liable for this hew burden any further than might have been required of' an individual ; and that, as the whole burden was sought to be placed upon the company, without regard to benefits, the ordinance was in violation of the Constitution, and could not create any liability upon the company, and that the legislature itself could not impose such burden without making compensation.

Illinois C. R. Co. v. Bloomington, 76 Ill.

Pa. 174; Chicago d N. W. R. Co. v. Cicero, 154 Ill. 656, 39 N. E. 574; Old Colony d F. River R. Co. v. Plymouth County, 14 Gray, 155.

In Chicago d Q. T. R. Co. v. Chappell, 124 Mich. 72, 82 N. W. 8Q0, it was held that a statute of the state of Michigan simi¬ lar to the one before the court in the case at bar, requiring a railroad company to make and maintain a suitable culvert through its right of way for a drainage ditch, was unconstitutional.

A statute cannot deprive a railroad of compensation for outlays in building ap¬ proaches and for fences and cattle guards made necessary by the laying out of high¬ ways across its tracks (Chicago d G. T. R. Co. v. Hough, 61 Mich. 507, 28 N. W. 532), nor compel the railroad company to build that part of a highway which would cross its right of way (People v. Lake Shore d M. S. R. Co. 52 Mich. 277, 17 N. W. 841).

And the damage done to a railroad by having a boulevard cross it must necessarily include all the additional expense entailed by such crossing, whicn, in a city, may in¬ volve the expense of erecting gates.

Parks d Boulevards v. Michigan G. R. Co. 90 Mich. 385, 51 N. W. 447 ; Grand Rapids v. Grand Rapids d I. R. Co. 58 Mich. 648, 26 N. W. 159; Massachusetts C. R. Co. v. Boston, C. d F. R. Co. 121 Mass. 124; Perley v. Chandler, 6 Mass. 453, 4 Am. Dec. 159.

The location and construction of a drain¬ age ditch across the right of way of a rail¬ road company is an appropriation of the company’s property which entitles it to compensation for the value of the interest so taken; and when, in the construction of such a ditch, it becomes necessary to make an excavation under the tracks of the rail¬ road, and for the company to incur expense in supporting the tracks or otherwise while the ditch is being constructed, such expense should be taken into account in estimating the damages of the company.

200 TT. S.

CHICAGO; B. & Q. R. Co. v.

Lake Erie c£ W. R. Co. v. Hancock Coun¬ ty, 63 Ohio St. 23, 57 N. E. 1009; Re Tut- hill. 163 N. Y. 133, 49 L.R.A. 781, 79 Am. St. Rep. 574, 57 N. E. 303.

Mandamus will not lie to compel the own¬ er of a bridge across a water course to re¬ move the same, so that the stream may be enlarged for drainage purposes.

State ex rel. Fadley v. Henry County, 157 Ind. 96, 60 N. E. 939.

The statute in question was passed after the railroad was constructed and its rights had become vested, and to enforce such stat¬ ute would be to impair the obligation of a contract, and thereby to violate the Fed¬ eral Constitution.

Cooley, Const. Lim. p. 721 ; Bailey v. Philadelphia, W. & B. R. Co. 4 Harr. (Del.) 389, 44 Am. Dec. 593; Washington Bridge Co. v. State, 18 Conn. 53.

The doctrine of dominant and servient estates does not apply in this case. Pe¬ titioners do not seek to use the water course in its natural state, but seek to compel the railway company, at its own ex¬ pense, to widen, deepen, and enlarge the channel, and by so doing to take and dam¬ age the bridge lawfully erected over said water course, and also the land adjacent thereto.

Dayton v. Drainage Comrs. 128 Ill. 271, 21 N. E. 198; Groff v. Ankenhrandt, 124 Ill. 51, 7 Am. St. Rep. 342, 15 N. E. 40; Union Drainage District v. O’Reilly, 132 Ill. 631, 24 N. E. 426; Noonan v. Albany, 79 N. Y. 470, 35 Am. Rep. 540; McCormick v. Horan, 81 N. Y. 86, 37 Am. Rep. 479; Gould, Waters, 3d ed. p. 52; 2 Farnham, Waters, pp. 969, 1052; 24 Am. & Eng. Enc. Law, p. 925; Hicks v. Sillintan, 93 Ill. 255; State ex rel. Fadley v. Henry County, supra.

If drainage work could 'be done under the police power, no assessment of benefits would be necessary. Proceedings by eminent do¬ main and proceedings under the police power are entirely distinct and separate in character, — the one always implying compensation, the other never involving it.

22 Am. & Eng. Enc. Law, 2d ed. p. 916.

To require plaintiff in error so to remove its bridge, and to enlarge, widen, and deepen the natural channel of the creek, at its own expense, is to require it to bear the cost of drainage work, which should be paid for by special assessments upon the property benefited thereby.

Heffner v. Cass & Morgan Counties, 193 Ill. 439, 58 L.R.A. 353, 62 N. E. 201.

If the statute, under the guise of police regulation, is an invasion of the property rights of an individual, it is the duty of the court to declare it void.

Chicago v. N etcher, 183 Ill. 104, 48 200 U. S.

Illinois ex rel. Gktmwood.

L.R.A. 261, 75 Am. St. Rep. 93, 55 N. E.

Laws enacted in the exercise of the police power must be reasonable; and are always subject to the provisions of both the Fed¬ eral and state Constitutions, and to judicial scrutiny.

Re Wilshire , 103 Fed. 620.

Drainage for the purpose of private ad¬ vantage, such as improving the quality of the land or rendering it more productive or fit for cultivation, cannot be justified under the police power.

Kinnie v. Bare, 68 Mich. 625, 36 N. W.

Lands cannot be permanently appropriat¬ ed for drains for the benefit of other lands, under the police power of the state or other¬ wise, without compensation.

Re Cheesebrough, 78 N. Y. 232.

Mr. John K. Newliall argued the cause, and, wuth Mr. John M. Raymond, filed a brief for defendants in error:

Where the record discloses that, if a question has been raised and decided ad¬ versely to a party claiming the benefit of a provision of the Constitution or laws of the United States, another question, not Fed¬ eral, has also been raised and decided against such party, and the decision of the latter question is sufficient, notwithstand¬ ing the Federal question, to sustain the judgment, this court will not review the judgment.

Eustis v. Bolles, 150 U. S. 361, 37 L. ed 1111, 14 Sup. Ct. Rep. 131; Hale v. Akersr 132 U. S. 554, 33 L. ed. 442, 10 Sup. Ct. Rep. 171; Hopkins v. McLure, 133 U. S 3.80, 33 L. ed. 660, 10 Sup. Ct. Rep. 407 ; Fowler v. Lamson, 164 U. S. 252, 41 L. ed. 424, 17 Sup. Ct. Rep. 112i

Where the state court based its judg¬ ment, not on law raising a Federal ques¬ tion, but on an independent ground, this court wall not take jurisdiction of the case, even though it may think the decision of the state court an unsound one.

DeSaussure v. Gaillard, 127 U. S. 216, 32 L. ed. 125, 8 Sup. Ct. Rep. 1053.

This court has no jurisdiction of a judg¬ ment in a state court in which a Federal question was not decided, and in which, in the view which the court below took of the case, such a decision was not necessary.

McManus v. O’Sullivan , 91 U. S. 578, 23 L. ed. 390.

It must appear that the decision of a Federal question was necessary to the de¬ termination of the cause, and that it was actually decided, or that the judgment as rendered could not have been given without deciding it.

Brown v. Atwell , 92 U. S. 327, 23 L. ed.

599

Supreme Court of the United States.

Oct. Term,

In the state of Illinois it is the common- law duty of a railroad, when it constructs its railway across any stream of water, to restore such stream or water course to its former state or to such a state as not un¬ necessarily to impair its usefulness, and keep such crossing in repair.

Ligare v. Chicago, 139 Ill. 46, 32 Am. St. Rep. 179, 28 N. E. 934; Ohio d M. R. Co. v. Thillman, 143 Ill. 127, 36 Am. St. Rep. 359, 32 N. E. 529.

This duty of restoration and provision for keeping such crossing in repair, and con¬ structing the necessary culverts or sluices for the necessary drainage, is a continuing duty; and if, by the increase of population, establishment of lawful drainage districts, or other causes, the crossing becomes in¬ adequate to meet the new and altered con¬ ditions of the country, it is then the duty of the railroad to make such alterations as will meet the present necessities o'f the pub¬ lic.

Chicago & N. TP. R. Co. v. Chicago, 140 Ill. 309, 29 N. E. 1109; Ohio d M. R. Co. v. McClelland, 25 Ill. 140; Chicago , R. I. d P. R. Co. v. Moffitt, 75 Ill. 524; People ex rel. Bloomington v. Chicago d A. R. Co. 67 Ill. 118; Illinois C. R. Co. v. Willenborg, 117 Ill. 203, 57 Am. Rep. 862, 7 N. E. 698; Cleveland v. Augusta, 102 Ga. 233, 43 L.R.A. 638, 29 S. E. 584; State ex rel. Min¬ neapolis v. St. Paul, M. d M. R. Co. 35 Minn. 131, 59 Am. Rep. 313, 28 N. W. 3; Atchison, T. d S. F. R, Co. v. Henry, 57 Kan. 154, 45 Pac. 576; Cooke v. Boston d L. R. Corp. 133 Mass. 185; Lake Erie d W. R. Co. v. Smith, 61 Fed. &85; Indiana ex rel. Muncie v. Lake Erie d TP. R. Co. 83 Fed.

An obligation to keep up a crossing, im¬ posed as a condition of a right to cross a highway, must be regarded as necessarily attaching to whatever person or corporation may be the owner of the road, as long as the Tight is exercised. It is a continuing con¬ dition, inseparable from the enjoyment of the franchise.

People ex rel. Bloomington v. Chicago d A. R. Co. supra.

.Where authority was conferred upon a railroad company to cross any stream of water in the line of its road, coupled with the duty to restore the stream so crossed to its former state, or such state as not un¬ necessarily to impair its usefulness, it was held to apply to streams not navigable as well as to those that were navigable; as legislative authority was as necessary to cross the one as the other.

Chicago, R. I. d P. R. Co. v. Moffitt, supra.

When a franchise is granted to construct ways or streets across a water way, there is

600

no implied right to destroy the water way, but it must be so bridged that its use will not be unnecessarily impaired.

Ligare v. Chicago, supra.

Federal courts follow state decisions as to the rights and liabilities respecting sur¬ face water, as a matter of local law.

Walker v. New Mexico d S. P. R. Co. 165 U. S. 593, 41 L. ed. 837, 17 Sup. Ct. Rep.

In Illinois it is the common-law duty of plaintiff in error, in constructing a bridge or culvert across a natural water course, to anticipate that upper riparian proprietors may, by artificial drainage, increase the flow in such natural water course, and plaintiff in error must provide against such increased flow by giving enough room for the water to flow freely across the right of way.

Kankakee d S. R. Co. v. Horan, 131 Ill. 288, 23 N. E. 621.

A railroad constructing its road over a water course must make suitable bridges, culverts, or other provisions for carrying off the water effectually. The duty imposed by statute upon such company to restore the stream crossed to its former state, or so to restore it as not to impair its usefulness, exists also in the absence of statutory re¬ quirements.

Angell, Water Courses, 7th ed. § 4656; Pierce, Railroads, p. 203; Ohio d M. R. Co. v. Thillman, supra.

The statutes in question are valid consti¬ tutional enactments, being simply reason¬ able police regulations, and apply with equal force to corporations whose roads are al¬ ready built and to those hereafter con¬ structed.

Illinois C. R. Co. v. Willenborg, Chicago d N. W. R. Co. v. Chicago, and People ex rel. Bloomington v. Chicago d A. R. Co. supra.

Requiring that the burden of a service deemed essential to the public, in conse¬ quence of the existence of the railroad cor¬ porations, and the exercise of privileges ob¬ tained at their request, should be borne by the corporations in relation to whom the service is rendered, and to whom it is use¬ ful, is neither denying to them the equal protection of the laws nor making any un¬ just discrimination against them, all rail¬ road corporations in the state being treated alike in this respect.

Charlotte, C. d A. R. Co. v. Oibbes, 142 U. S. 386, 35 L. ed. 1051, 12 Sup. Ct. Rep.

Railroads are public highways, and, in their relations as such to the public, are subject to legislative supervision and the police power of the state.

Chicago dN. W. R. Go. v. Chicago, supra.

The adjudication of the highest court of a

200 U. S.

Chicago, B. & Q. R. Co. v. Illinois ex rel. Grimwood.

562, 563

state that a law enacted in the exercise of the police power of the state, to protect the public from danger, is valid, will not be re¬ versed by this court, on the ground of an infraction of the Constitution of the United States.

New York d N. E. R. Go. v. Bristol, 151 U. S. 556, 38 L. ed. 269, 14 Sup. Ct. Rep.

The police power is a power coextensive with self-protection, and is not inaptly termed “the law of overruling necessity.”

Chicago d N. W. R. Co. v. Chicago, supra ; Lake View v. Rose Hill Cemetery Co. 70 Ill. 191, 22 Am. Rep. 71.

It is well settled that neither a natural person nor a corporation can claim damages on account of being compelled to render obedience to a police regulation, destined to secure the common welfare.

Chicago d A. R. Co. v. Joliet, L. d A. R. Co. 105 Ill. 388, 44 Am. Rep. 799; Chi¬ cago d N. W. R. Co. v. Chicago, supra.

In granting a charter to a private corpo¬ ration, the state does not part with its powers to enact proper police regulations, operating upon such corporations the same as upon natural persons; and these bodies accept their charters upon the implied con¬ dition that they are to exercise their rights subject to the power of the state to regulate their action as it may individuals.

Ohio d M. R. Co. v. McClelland, 25 Ill.

It is in the power of the state to require local improvements to be made which are essential to the health and prosperity of any community within its borders. To this end it may provide for the construction of canals for draining marshy and malarious districts and of levees to prevent inunda¬ tions.

Hagar v. Reclamation Dist. No. 108, 111 U. S." 701, 28 L. ed. 569, 4 Sup. Ct. Rep.

Since the amendment to the Illinois Con¬ stitution, adopted in 1878, the Illinois court has held that corporations formed for drain¬ age purposes are public corporations.

Heffner v. Cass d Morgan Counties, 193, Ill. 439, 58 L.R.A. 353, 62 N. E. 201.

The right of drainage through a natural water course or a natural water way is the natural easement appurtenant to the land of every individual through whose lands such natural water course runs, and every owner of land along such water course is obliged to take notice of the natural ease¬ ment possessed by other owners along the same water course. For the drainage of large areas of land, drainage districts were authorized by the Illinois Constitution, to be provided for by proper legislative action. But the constitutional amendment was not 200 IT. S.

solely to authorize drainage along the line of natural water courses; the constitutional provision was an express declaration of the people of the right of one man to drain his land over and across the lands of the other.

It was the declaration of the people of the state, that, in a country such as the state of Illinois, the rights of drainage of the lands where such large portions were swamp and overflowed lands, were paramount to the right of the individual who sought to deny such drainage.

Chicago, B. d Q. R. Co. v. People, 212 Ill.

103, 72 N. E. 219.

A natural water course is not required to be used only in its natural state, but may be improved either by being deepened, or widened by artificial means or by the con¬ struction along its course of a channel or drain for the purpose of more effectually carrying off the surface water from the land. The construction of such improve¬ ment does not create a substantially new water course, nor amount to an abandon¬ ment of the natural water course.

Lambert v. Alcory, 144 Ill. 313, 21 L.R.A.

611, 33 N. E. 53.

The public, represented by defendants in error, have the right to have the surface water, falling or coming naturally upon the district in question, pass off the same through the natural and usual channel or outlet, and over the right of way of plain¬ tiff in error, and have the right to construct ditches or drains for the purpose of carrying such surface water into the natural and usual channel or outlet, even though the water thus carried across the right of way is thereby increased.

Graham v. Keene, 143 Ill. 425, 32 N. E.

180; Kankakee d S. R. Co. v. Horan, 131 Ill. 288, 23 N. E. 621.

This is one of the inevitable results ex¬ perienced in the drainage and improvement of land, which the development of the coun¬ try cannot always permit to remain in a state of nature.

Ribordy v. Murray, 177 Ill. 134, 52 N. E.

Mr. Justice Harlan delivered the opin¬ ion of the court :

This is a contest between certain drainage commissioners in Illinois and the Chicago, Burlington, & Quincy Railway Company, as to the validity of a demand made by the for¬ mer that the latter should remove the bridge and culvert now maintained by it over Rob Roy creek, in Kendall county, Illinois, and, if it continues to maintain a bridge and cul¬ vert at the same point, that one be substi¬ tuted that will meet the requirements of a certain plan of drainage adopted by *those[563]

601

663—665

Supreme Court of the United States.

Oct. Term,

commissioners. Let us see in what way the dispute arises.

This suit or proceeding is based in part on what is known as tile farm drainage act of Illinois, in force July 1st, 1885, entitled, “An Act Provided for Drainage for Agri cultural and Sanitary Purposes, etc.-’ Hurd’s Rev. Stat. (Ill.) 1901, p. 712. By that act the commissioners of highways in each town, in the several counties under township organization, are constituted drainage commissioners for all drainage dis¬ tricts in their respective towns, with power as a body politic to sue and be sued, con¬ tract and be contracted with. § 1. Owners of lands are authorized to “drain the same in the general course of natural drainage, by constructing open or covered drains, dis¬ charging the same into any natural water course, or into any natural depression, whereby the water will be carried into some natural water course, or into some drain on the public highway, with the consent of the commissioners thereto; and when such drainage is wholly upon the owner’s land, he shall not be liable in damages therefor to any person or persons or corporation.” § 4.

The act also provided: “When the case involves a system of combined drainage in one town, and it is proposed that the cost shall be borne proportionately by the several parties benefited, a petition addressed to the drainage commissioners shall be pre¬ sented to the town clerk, signed by a ma¬ jority in number of the adult owners of land lying in a proposed district, and they shall be the owners in the aggregate of more than one third of the lands lying in the proposed district, or by the owners of the major part of the land and who constitute one third or more of the owners of the land in the proposed district, setting forth the boundaries, or a description of the sev¬ eral tracts of land thereof or fractions as usually designated: . . . Said peti¬

tion shall state that the lands lying with¬ in the boundaries of said proposed district require a combined system of drainage or protection from wash or overflow; that the petitioners desire that a drainage district [564] may be ‘organized, embracing the lands therein mentioned, for the purpose of con¬ structing, repairing, or maintaining a drain or drains, ditch or ditches, embankment or embankments, grade or grades, or all or either, within said district, for agricultural and sanitary purposes, by special assess¬ ments upon the property benefited thereby.”

§ 11. Again: “Upon the organization of a drainage district, the commissioners shall go upon the" land and determine upon a sys¬ tem of drainage, which shall provide main outlets of ample capacity for the waters of 602

the district, having in view the future con¬ tingencies, as well as the present. . . .

The maps and papers showing the final de¬ termination as to the system of drainage shall be filed in the clerk’s office and be re¬ corded in the drainage record.” § 17.

Hurd’s Rev. Stat. (Ill.) 1901, pp. 713, 714,

Section 40% has, however, a more special application to the present case. It is in these words: “The commissioners shall have the power and are required to make all necessary bridges and culverts along or across any public highway or railroad which may be deemed necessary for the use or pro¬ tection of the work, and the cost of the same shall be paid out of the road and bridge tax, or by the railroad company, as the case may be : Provided, however, notice shall first be given to the road or railroad au¬ thorities to build or construct such bridge or culvert, and they shall have thirty days in which to build or construct the same, such bridges or culverts shall, in all cases, be constructed so as not to interfere with the free flow of water through the drains of the district. Should any railroad company refuse or neglect to build or construct any bridge or culvert as herein required, the commissioners constructing the same may recover the cost and expenses therefor in a suit against said company before any jus¬ tice of the peace or any court having juris¬ diction, and reasonable attorney’s fees may be recovered as part of the cost. The proper authorities of any public road or railroad shall have the right of appeal the same as provided for individual landowners ” §

40%. Ibid., 723.

*It is contended by the defendants in error[565] that § 56 of what is known as the levee act has a bearing on the case. That section need not, however, be set out, as the su¬ preme court of the state adjudged in this case that a district organized under the farm drainage act was subject only to the provisions of that act, and that the drainage commissioners could not claim any author¬ ity under the other act. 212 Ill. 103, 72 N.

E. 219. See also Gauen v. Moredock d I. L. Drainage Dist. No. 1, 131 Ill. 446, 23 N. E.

633; Drainage Comrs. v. Volke, 163 Ill. 243,

4° E. 415; McCaleb v. Coon Run Drain¬ age d Levee District, 190 Ill. 549, 60 N E

1 lie present proceeding was instituted in the circuit court of Kendall county, Illinois, by the defendants in error as drainage com¬ missioners for the Bristol drainage district in that county, against the Chicago, Bur¬ lington, & Quincy Railway Company. It is a petition for mandamus.

Besides a general demurrer, the railway

200 U. S.

565-567

Chicago, B. & Q. R. Co. v.

company demurred specially upon the ground that a judgment in favor of the commissioners would take its property for public use without compensation, and there¬ fore without due process of law, as well as deny to it the equal protection of the laws, in violation of the Constitution of the United States. The demurrer was overruled. The defendant having elected to stand by its demurrer, judgment was rendered ordering a writ of mandamus as prayed for in the petition. That judgment was affirmed by the supreme court of Illinois, 212 Ill. 103, 72 N. E. 219, and hence the present writ of error.

As the case was determined upon the de¬ murrer, the facts are to be taken as alleged in the petition. The case, thus presented, is as follows:

The drainage district in question was or¬ ganized under the farm drainage act above referred to and contains about 2,000 acres of land on both sides of Rob Roy creek, across which are the road and right of way of the railway company. For more than fifty years before the district was estab¬ lished, that creek had been, as it now is, £566] a natural water course. Prior *to June 24th, 1903, the commissioners located a ditch or drain on the line of the creek for the pur¬ pose of enlarging its channel or water course, and thereby enabling the lands in the drainage district to be better drained and made more tillable.

The railway company operated and main¬ tained its road across Rob Roy creek, not under any specific grant of authority, but under its general corporate power to con¬ struct, operate, and maintain a railroad. It placed a bridge or culvert 12 by 30 feet at the point where the road crosses the creek. In constructing a foundation for the bridge or culvert the company sank or placed in the creek at the point of crossing huge wooden timbers and stones, thereby preventing the deepening and enlarging of the creek by the commissioners, unless they removed such timber and stones; and if that be done the result will be the destruc¬ tion of the bridge or culvert. The present channel or water way of the creek, under the bridge or culvert; is 3 feet in depth and 12 feet in width. It is insufficient to allow the natural flow of water in the ditch or drain proposed to be constructed by the commissioners. The estimated cost of this ditch or open drain is $20,000. The present bridge across the creek does not exceed $8,000 in value, and a new bridge, con¬ forming to the plan of the Commissioners, will cost not exceeding $13,000.

On the 24th of June, 1903, the drainage commissioners notified the railway company in writing that a bridge was necessary at 200 U. S.

Illinois ex rel. Geimwood.

the point where the company’s right of way would be crossed or intersected by the pro¬ posed ditch; that it was necessary to en¬ large the opening ’under the present bridge; that the proposed improvement was to be the water way of a combined system of drainage established in the vicinity . under the charge and direction of the drainage commissioners of the district; that the main ditch of the drainage, where it will inter¬ sect the company’s right of way, must be of the width of 23 feet and of the depth of 9 y2 feet, the bridge constructed to be of the width of 23 feet *in the clear at the sur-[5 face or level of land, and to permit at least sixteen feet in the clear at the bottom of the ditch. The notice stated that the com¬ pany was required, in pursuance of the stat¬ ute in such case made and provided, to build and construct such bridge within thirty days from the date of the notice, in default whereof the commissioners would construct the same at the cost and expense of the company.

The company disregarded the notice and failed to build and construct the required bridge or culvert at the point of intersection with the creek, in accordance with the di¬ mensions specified in the notice, and so as to permit such enlargement of the channel un¬ der the bridge as would be sufficient for the natural flow of water in the proposed ditch or drain.

The petition averred that a majority of the lands of the drainage district were swamp or slough lands, and in their pres¬ ent condition were not subject to cultiva¬ tion, but by means of the proposed deepen¬ ing and enlarging of Rob Roy creek, and as a result of the removal of the timbers and stones in the creek and the enlargement and deepening of the creek, all the lands in the drainage district would be “greatly im¬ proved, and made good, tillable land, sub¬ ject to cultivation;” that the proposed lo¬ cation of the ditch or drain along the creek was the best route or means for drainage of the district, constituting the only natural water course of the drainage district, and affording the only natural out¬ let or way of drainage of the lands to make them tillable ; that if said improvement and enlargement of the ditch was made and the timbers and stones removed from the creek at the point of crossing, all of the lands of the district would be made good, tillable lands for general farming purposes; and that the proposed construction of a ditch or drain along Rob Roy creek, when com¬ pleted in accordance with said plans, would “not divert or carry waters which by nature of force of gravity would flow or drain into any other natural water course in

603

Supreme Court of tiie United States.

Oct. Term.

567, 568, 579-581

said drainage district or the vicinity there¬ of.”

The commissioners allege in their peti- [568]tion that the neglect, *fa‘ilure, and refusal of the railway company to remove the tim¬ bers and stones it had placed in the creek, and to construct and enlarge the opening under its bridge or culvert, had prevented them from completing the construction of the ditch or drain in accordance with the plans adopted by them; that it was necessary for the use and protection of the proposed drainage work that the opening underneath the bridge or culvert be constructed and en¬ larged in the manner indicated in order that the lands in the district might be drained in accordance with said plans; which plans “are reasonable for the suitable and proper drainage of said district.”

The relief asked was a writ of mandamus commanding the railway company to forth¬ with enlarge, deepen, and widen the water way over and across the company’s right of way across Rob Roy Creek.

thority of this court to review the judgment below. As we have seen, the railway com¬ pany insisted in the court of original ju¬ risdiction that the statute under which the [580] drainage commissioners proceeded * could not be applied in this case without taking its property for public use without compen¬ sation, and therefore depriving it of proper¬ ty without due process of law, or without denying to it the equal protection of the laws, guaranteed by the Constitution of the United States. The judgment of the trial court was adverse to that view, in the su¬ preme court of the state the railway com¬ pany, by its assignments of error, preserved its objection based on constitutional grounds. That court did not, in words, refer to the Constitution of the United States, and its opinion concluded: “Entertaining the views above expressed, and founding our conclu¬ sion upon the rights and duties of the par¬ ties as found in the common law, we deem it unnecessary to pass upon the constitutional¬ ity of § 40 y2 of the farm drainage act.” [212 Ill. 120, 72 N. E. 225.]

The contention is that as the state court based its judgment on the common- law duty of the railway company, and not expressly on any Federal ground, it cannot be said that there was any denial of the Federal right claimed by the company; consequently, it is argued, this court is without jurisdic¬ tion to re-examine the final judgment. Rev. Stat. § 709, U. S. Comp. Stat. 1901, p. 575.

Undoubtedly, the general rule is that where the judgment of the state court rests upon an independent, separate ground of local or general law, broad enough or suffi¬ cient in itself to cover the essential issues 604

and control the rights of the parties, how¬ ever the Federal question raised on the record might be determined, this court will affirm or dismiss, as the one course or the other may be appropriate, without consider¬ ing that question. But it is equally well settled that the failure of the state court to pass on the Federal right or immunity spe¬ cially set up, of record, is not conclusive, hut this court will decide the Federal ques¬ tion if the necessary effect of the judgment is to deny a Federal right or immunity spe¬ cially set up or claimed, and which, if recog¬ nized and enforced, would require a judg¬ ment different from one resting upon some ground of local or general law. And such plainly was the effect of the judgment in this case. If, as the railway company contended, the proposed *action of the drainage commis-[581] sioners would deprive it of property without due process of law and also deny to it the equal protection of the laws, then a judg¬ ment should have been rendered for the com¬ pany. And that result could not be avoided merely by silence on the Federal question, ana by placing the judgment on some prin¬ ciple of the common law. The constitutional grounds relied on must, if sustained, displace or supersede any principle of general or local law which, but for such grounds, might be sufficient for the complete determination of the rights, of the parties. The claim of a Federal right or immunity specially set up from the outset went to the very root of the case and dominated every part of it. If that claim be valid, then the law is for the railway company; for the supreme law of the land must always control. Therefore a failure to recognize such Federal right or immunity, and the decision of the case on some ground of general or local law, neces¬ sarily has the same effect as if the claim of Federal right or immunity had been express¬ ly denied. That claim having, then, been dis¬ tinctly set up by the company, and being broad enough to cover the entire case, it may not be ignored, and this court cannot refuse to determine whether the alleged Federal right exists and is protected by the Constitution of the United States. If the case had been decided in favor of the railway company on some ground of local or general law, then the claim of a Federal right would have become immaterial, and we could not have re-examined the judgment. But the decision was otherwise, and was, in law, a denial of the claim of a Federal right.

For these reasons we are of opinion that tins court has jurisdiction to re-exarqine the final judgment of the state court so far as it involved the Federal right or immunity specially set up by the railway company.

tion and the demurrer is this: A public

200 TJ. S.

Chicago, B. & Q. R. Co. v. Illinois ex rel. Gbimwood.

581-584

corporation, charged by law with the duty of causing a large body of lands, principally swamp and slough lands, to be drained

[582] and made capable of cultivation, *has, under direct legislative authority, adopted a rea- s enable and suitable plan to accomplish that object. That plan requires the enlarging and deepening of the channel of a natural water course running through the district, which is the only natural outlet or way of drainage of the lands of the district, — the best and only practicable mode by which the lands can be made tillable. But that plan cannot be carried out unless the timbers and stones in the creek — placed there by the railway company when it constructed the foundation for its present bridge — are re¬ moved. The timber and stones referred to cannot, however, be removed without de¬ stroying the foundations of the present bridge and rendering it nejpessary (if the railway company continues to operate it3 road, which we assume it intends to do) to construct another bridge with an opening underneath wide enough to permit a channel sufficient to carry off the waters of the creek as increased in volume under the drainage system adopted by the commis¬ sioners.

The contention of the railway company is that, as its present bridge was lawfully con¬ structed, under its general corporate power to build, construct, operate, and main¬ tain a railroad in the county and township aforesaid, and as the depth and width of the channel under it were sufficient, at the time, to carry off the water of the creek as it then flowed, and now flows, — the foundation of the bridge cannot be removed and its use of the bridge disturbed unless compensation be first made or secured to it in such amount as will be sufficient to meet the expense of removing the timbers and stones from the creek and of constructing a new bridge of such length and with such opening under it as the plan of the commissioners requires. The company insists that to require it to meet these expenses out of its own funds will be, within the meaning of the Consti¬ tution, a taking of its property for public use without compensation, and, therefore, without due process of law, as well as a deni¬ al to it of the equal protection of the laws.

The importance of these questions will justify a reference to some of the adjudged cases; referring first to those recognizing

[583] *the distinction between an incidental in¬ jury to rights of private property result¬ ing froflKthe exercise of governmental pow¬ ers, lawfully and reasonably exerted for the public good, and the taking , within the meaning of the Constitution, of private property for public use.

In Northern Transp. Co. v. Chicago, 99 U. 200 U. S.

S. 635, 642, 25 L. ed. 336, 338, which involved a claim for damages directly resulting from the construction by the city of Chicago of a tunnel under Chicago river, whereby for a very long time the plaintiff was prevented from using its dock and other property for purposes of its business; in Mugler v. Kan¬ sas, 123 U. S. 623, 669, 31 L. ed. 205, 213, 3 Sup. Ct. Rep. 273, which related in part, to the lawful prohibition by the state of the use of private property in a particular way whereby its value was materially diminished, if not practically destroyed; in New York & N. E. R. Co. v. Bristol, 151 U. S. 556,

557, 571, 38 L. ed. 269, 272, 274, 14 Sup.

Ct. Rep. 437, which involved the question whether a railroad company could be re¬ quired, at its sole expense, to remove a grade crossing which it had lawfully established and used, and to establish another crossing at a different place; in Chicago, B. & Q. R.

Co. v. Chicago, 166 U. S. 226, 252, 41 L. ed.

976', 990, 17 Sup. Ct. Rep. 581, in which one of the questions was whether it was a con¬ dition of the exercise by the state of its au¬ thority to regulate the use of property owned by individuals or corporations, that the owner should be indemnified for the damage or injury resulting from the exercise of such authority for legitimate public purposes; in Gibson v. United States, 166 U. S. 269,

271, 276, 41 L. ed. 996, 998, 1002, 17 Sup. Ct.

Rep. 578, in which the owner of a farm on an island in the Ohio river, at which there was a landing, sought to recover compensa¬ tion for the injury done to the farm by rea¬ son of the construction by the United States of a dike for tne purpose of concentrating the waterflow in the mam channel of the river; and in Scranton v. Wheeler, 179 U. S. 141,

164, 45 L. ed. 126, 137, 21 Sup. Ct. Rep. 48, which involved the question whether the United States was required to com¬ pensate an owner of land fronting on a public navigable river, when his ac¬ cess from the shore to the navigable part of such river was permanently ob¬ structed by a pier erected in the river under *the authority of Congress for the purpose [584] of improving navigation, — in each of those cases this court recognized the principle that injury may often come to private property as the result of legitimate governmental action, reasonably taken for the public good and for no other purpose, and yet there will be no taking of such property within the meaning of the constitutional guaranty against the deprivation of property without due process of law, or against the taking of private property for public use without com¬ pensation. To this class belongs the recent, and, as we think, decisive case of Neio Or¬ leans Gaslight Co. v. Drainage Commission,

197 U. S. 453, 49 L. ed. 831, 25 Sup. Ct. Rep.

605

684—586

Supreme Coubt of the United States.

Oct. Term,

471, to be hereafter adverted to in another connection. In this class may also be placed Mills v. United States, 12 L. R. A. 673, 46 Fed. 738. That was the case of an im¬ provement by the United States of the navi¬ gation of Savannah river, which resulted in so raising the water in that river as to make it impossible to prevent the flooding of adjacent rice fields that were ordinarily and naturally drained into the river, and rendering it necessary that expense be in¬ curred in order to provide new drainage from those fields into a back river, where the water levels were suitable. In com¬ menting upon that case, this court said, in United States v. Lynah, 188 U. S. 445, 47 L. ed. 539, 23 Sup. Ct. Rep. 349 : “Obvious¬ ly there was no taking of the plaintiff’s lands, but simply an injury which could be remedied at an expense, as alleged, of $10,- 000, and the action was one to recover the amount of this consequential injury. The court rightfully held that it could not be sustained.” See also Bedford v. United States, 192 U. S. 217, 48 L. ed. 414, 24 Sup. Ct. Rep. 238, and Manigault v. Springs, 199 U. S. 473, ante, 274, 26 Sup. Ct. Rep. 127.

We refer also, as having direct applica¬ tion here, to some of the cases, familiar to the profession, that recognize the possession by each state of the power, never surrender¬ ed to the government of the Union, of guard¬ ing and promoting the public interests by reasonable police regulations that do not vio¬ late the Constitution of the state or the Con¬ stitution of the United States. Gibbons v. Ogden, 9 Wheat. 1, 6 L. ed. 23; Hannibal <.£- St. •/. R. Go. v. Husen, 95 U. S. 465, 472, 24 L. ed. 527, 530; Patterson v. Kentucky, 97 U- [585JS.501, 503, 24 L. ed. 1115, UIQ-,* Morgan’s L. c£ T. R. ct- S. S. Co. v. Board of Health, 118 U. S, 455, 464, 30 L. ed. 237, 241, 6 Sup. Ct. Rep. 1114; Hennington v. Georgia, 163 U. S. 299, 308, 309, 41 L. ed. 166, 170, 171, 16 Sup. Ct. Rep. 1086; New York, N. H. & H. R. Co. v. New York, 165 U. S. 628-631, 41 L. ed. 853, 854, 17 Sup. Ct. Rep. 418.

We assume that the drainage statute in question is entirely consistent with the Con¬ stitution of Illinois. It is so regarded by the supreme court of the state, and that is all-sufficient in this case. We assume, also, without discussion — as from the decisions of the state court, we may properly assume — that the draining of this large body of lands so as to make them fit for human habitation and cultivation is a public purpose, to accomplish which the state may. by appropriate agencies, exert the general powers it possesses for the common good. By the removal of water from large bodies of land, the state court has said, and by “the subjection of such lands to cultivation, they are made to bear their proper proportionate 606

burden to the support of the inhabitants and the commerce of the state. Their value is increased, and thereby their contribution in taxes to the state and local governments is increased.” 212 Ill. 103, 119, 72 N. E. 219.

It is conceded that this public purpose can¬ not be certainly and effectively attained ex¬ cept through the plan adopted by the drain¬ age commissioners. Further, the regula¬ tions against which the railway company in¬ vokes the Constitution have a real, direct, and obvious relation to the public objects sought to be accomplished by them; in no sense are they arbitrary or unreasonable. Indeed it is admitted that the plan of the commissioners, is appropriate and the best that can be devised for draining the lands in question. But the railway company, in effect, if not in words, insists that the rights which it asserts in this case are superior and paramount to any that the public has to use the water course in ’question for the[586] purpose of draining the lands in its vicinity, although such water course was in existence, for the benefit of the public, long before the railway company constructed its bridge.

This contention cannot, however, be sus¬ tained, except upon the theory that the ac¬ quisition by the railway company of a right of way through the lands in question, and the construction on that right of way of a bridge across Rob Roy creek at the point in question, carried with it a surrender by the state of its power, by appropriate agencies, to provide for such use of that na¬ tural water course as might subsequently become necessary or proper for the public interests. If the state could part with such power, held in trust for the public,— which is by no means admitted, — it has not done so in any statute, either by express words or by necessary implication. When the rail¬ way company laid the foundations of its bridge in Rob Roy creek, it did so subject to the rights of the public in the use of that water course, and also subject to the possi¬ bility that new circumstances and future public necessities might, in the judgment of the state, reasonably require a material change in the methods used in crossing the creek with cars. It may be — and we take it to be true — that the opening under the bridge as originally constructed was suffi¬ cient to pass all the water then or now flow¬ ing through the creek. But the duty of the company, implied in law, was to maintain an opening under the bridge that would be ad¬ equate and effectual for such an increase in the volume of water as might result from lawful, reasonable regulations established by appropriate public authority from time to time for the drainage of lands on either side of the creek. Angell, Water Courses, 6th ed.

§ 4656, p. 640.

200 U. S,

586-589

Chicago, B. & Q. R. Co. v.

The supreme court of Illinois said in this case: “The right of drainage through a natural water course or a natural water way is a natural easement, appurtenant to the land of every individual through whose land such natural water course runs, and every owner of land along such water course is obliged to take notice of the natu¬ ral easement possessed by other own¬ ers along the same water course.” Again, in the same case: “Where lands are valuable for cultivation, and the country, as this, depends so much upon agriculture, the public welfare demands that the lands shall be drained; and, in the absence of any con¬ stitutional provision in relation to such laws they have been sustained, upon high autlior- [587] ity^ as the exercise of the ’police power.” Further: “A natural water course, being a natural easement, is placed upon the same ground, in many respects as to the public right, as is a public highway. At the com¬ mon law, if a railroad or another highway crosses a natural water course or a public highway, such highway or railroad must be so" constructed across the existing highway or water way, and so maintained, that said highway or water way, as the case may be, shall not only subserve the demands of the public as they exist at the time of crossing the same, but for all future time. . . .

The great weight of authority is, that where there is a natural water way, or where a highway already exists and is crossed by a railroad company under its general license to build a railroad, and without any specific grant by the legislative authority to ob¬ struct the highway or water way, the rail¬ road company is bound to make and keep its crossing, at its own expense, in such condi¬ tion as shall meet all the reasonable require¬ ments of the public as the changed condi¬ tions and increased use may demand.” The court said that the implied authority of the company to build its present bridge was coupled with its common law duty “to build its bridge over the natural water course with a view of the future as well as the pre¬ sent contingencies and requirements of such water course, and with the further implied provision that there remained in the state, whenever the public welfare required it, the right to regulate its use.” Still further: “The subject [the draining of lands] was deemed of such importance that the people, by § 31 of article 4 of the Constitution of 1870, conferred upon the general assembly plenary powers in making provision for drainage for agricultural and sanitary pur¬ poses, and pursuant to that power the gen¬ eral assembly passed the act under which the appellees are proceeding, declaring that the organization should be for agricultural and sanitary purposes. The drainage districts 200 U. S.

Illinois ex rel. Gbfmwood.

organized as are the appellees, under that law are invested with the right of eminent domain and the power of taxation, upon the theory that they are public utilities and are held to be quasi public corporations. In their organic character ’they do not repre-[588] sent merely the individual property owners or themselves, but they represent the state in carrying out its policy, as found in the com¬ mon law and declared by its Constitution and statutes. It has been so often said that it need only be adverted to here, that cor¬ porations such as appellant do not hold their property and exercise their franchises strict¬ ly in a private right, but that from the na¬ ture of their business and their relation to society they are public corporations in a sense, and are subject to public control and regulation, though with their grant of pow¬ er to traverse the state with their lines of railroad it cannot be said that their right of private property attaches to every high¬ way and water course over which their roads may be constructed. To so hold would ren¬ der such enterprises, which are designed for the benefit of the state, obstacles to its prog¬ ress and a menace to its general welfare.

. . . Of course, in the exercise of the

right of the public interest, as against such corporations, the demand must be reasonable, and must clearly appear to be for the public welfare. In this case it is not questioned that the improvement of Rob Roy creek, as pro¬ posed, is necessary for the proper drainage of the lands comprising the drainage district.

The petition alleges that such enlargement is necessary and that the same cannot be car¬ ried on with the obstructions placed in the bed of said creek by appellant. This the appellant does not deny.” 212 Ill. 109-111,

114, 118, 72 N. E. 219.

In Ohio & M. R. Co. v. McClelland, 25 Ill. 140, 144, it was said — indeed, all the cases hold— that “the power to enact police regulations operates upon all alike;” that that power “is incident to and a part of gov¬ ernment itself, and need not be expressly re¬ served, when it grants rights or property to individuals or corporate bodies, as they take subservient to this right.”

A case quite in point is that of Kankakee & 8. R. Co. v. Horan, 131 Ill. 288, 23 N. E.

company to recover for damage from the backing of water upon plaintiff’s land by reason of an insufficient culvert constructed *>by it for the passage of water from a certain [589] natural water course. The contention of the company was that the culvert when construc¬ ted was sufficient for the flow of water at the time, and that it was not bound to make such provision as was necessary for an in¬ crease of water in the slough subsequently arising from the drainage into it of the

607

589-591

Supreme Court op the United States.

Oct. Term,

lands along its course. Upon this point the supreme court of Illinois said: We do not

subscribe to this doctrine. The Parker slough was a water course, and it was the legal right of anyone along its line for miles above the railroad, where the water natural¬ ly shed toward the slough, to drain into it, and no one below, owning land along the slough, would have any legal remedy against such person so draining water into the slough above him, for any damage done to his inheritance by means of an increased flow of water caused thereby. In other words, the slough was a legal water course for the drainage of all the land the natural tendency of which was to cast its surplus water, caused by the falling of rain and snow into it; and this whether the flow was increased by artificial means or not. It would seem legitimately to follow that the railroad com¬ pany, in providing a passageway for the slough, was bound to anticipate and pro¬ vide for any such legal increase of the water flow. If it did not, it was doing a wrong and legal injury to any one situated like the appellee, who received injury in conse¬ quence of a failure on its part to do its duty.” See also the following Illinois cases: People ex rel. Bloomington v. Chicago it A. R. Co. 67 Ill. 118; Chicago, R. I. d P. R. Co. v. Mofjfitt, 75 Ill. 524; Chicago d N. W. R. Co. v. Chicago, 140 Ill. 309, 29 N. E. 1109; Ohio d M. R. Co. v. Thillman, 143 Ill. 127, 30 Am. St. Rep. 359, 32 N. E. 529; Fra¬ zer v. Chicago, 186 Ill. 480, 486, 51 L. R. A. 306, 78 Am. St. Rep. 296, 57 N. E. 1055.

Many eases in other courts are to the same general effect. They negative the sugges¬ tion of the railway company that the adequa¬ cy of its bridge and the opening under it for passing the water of the creek at the time the bridge was constructed determines its obligations to the public at all subse¬ quent periods. In Cooke v. Boston d L. R.

[590](7orp. 133 Mass. 185, 188, *it appeared that a railroad company had statutory authority to cross a certain highway with its road. The statute provided that if the railroad crossed any highway it should be so con¬ structed as not to impede or obstruct the safe and convenient use of the highway. And one of the contentions of the company was that the statute limited its duty and obli¬ gation to provide for the wants of travel¬ ers at the time it exercised the privilege granted to it. The court said: “The legis¬ lature intended to provide against any ob¬ struction of the safe and convenient use of the highway, for all time; and if, by the increase of population in the neighborhood, or by an increasing use of the highway, the crossing which at the outset was adequate is no longer so, it is the duty of the railroad corporation to make such alteration as will meet the pres-

608

ent needs of the public who have occasion to use the highway.” In Lake Erie d W. R. Co. v. Cluggish, 143 Ind. 347, 42 N. E. 743, the court said (quoting from Lafce Erie d W. R.

Co. v. Smith, 61 Fed. 885): “The duty of a railroad to restore a stream or highway which is crossed by the- line of its road is a continuing duty; and if, by the increase of population or other causes, the crossing be¬ comes inadequate to meet the new and altered conditions of the country, it is the duty of the railroad to make such alterations as will meet the present needs of the public.”

So, in Indiana ex rel. Muncie v. Lake Erie d W. R. Co. 83 Fed. 287, which was the case of an overhead crossing lawfully constructed on one of the streets of a city, the court said: “If, by the growth of population or otherwise, the crossing has become inade¬ quate to meet the present needs of the pub¬ lic, it is the duty of the railroad company to remedy the defect by restoring the crossing so that it will not unnecessarily impair the usefulness of tiie highway.”

The cases to which we have referred are in accord with the declarations of this court in the recent case of New Orleans Gaslight Co. v. Drainage Commission, 197 U. S. 453,

49 L. ed. 831, 25 gup. Ct. Rep. 471. That case would seem to be decisive of the ques¬ tion before us. It there appeared that a g;;s company had acquired an exclusive right *to[591] supply gas to the city of New Orleans and its inhabitants through pipes and mains laid in the streets. In the exercise of that right it had laid its pipes in the streets. Subse¬ quently a drainage commission, proceeding under statutory authority, devised a system of drainage for the city, and in the execution of its plans it became necessary to change the location in some places of the mains and pipes laid by the gas company. The conten¬ tion of that company was that it could not be required, at its own cost, to shift its pipes and mains so as to accommodate the drain¬ age system; that to require it to do so would be a taking of its property for public use without compensation, in violation of the Constitution of the United States. This court said : “The gas company did not ac¬ quire any specific location in the streets; it was content with the general right to use them; and when it located its pipes it was at the risk that they might be, at some fu¬ ture time, disturbed, when the state might require, for a necessary public use, that changes in location be made. . . . There

is nothing in the grant to the gas company, even if it could legally be done, undertaking to limit the right of the state to establish a system of drainage in the streets. We think whatever right the gas company acquired was subject, in so far as the location of its pipes was concerned, to such further regu-

200 U. S,

Chicago, B. & Q. R. Co. v. Illinois ex rel. Grimwood.

591-593

lations as might be required in the interest of the public health and welfare. These views are amply sustained by the authori¬ ties. Nationr1, Waterworks Go. v. Kansas City, 28 Fed. 921, in which the opinion was delivered by Mr. Justice Brewer, then circuit judge; Columbus Gaslight & Coke Co. v. Columbus, 50 Ohio St. 65, 19 L. R. A. 510,

40 Am- St. Rep. 648, 33 N. E. 292; Jamaica Pond Aqueduct Corp. v. Brookline, 121 Mass. 5; Re Deering, 93 N. Y. 361; Chicago, B. iG Q. R. Co. v. Chicago, 166 U. S. 226, 254,

41 L. ed. 979, 990, 17 Sup. Ct. Rep. 581. In the latter case it was held that uncompensat¬ ed obedience to a regulation enacted for the public safety under the police power of the state was not taking property without due compensation. In our view, that is all there is to this case. The gas company, by its grant from the city, acquired no exclusive right to the location of its pipes in the

[592] streets, as chosen *by it, under a general grant of authority to use the streets. The city made no contract that the gas company should not be disturbed in the location chos¬ en. In the exercise of the police power of the state, for the purpose highly necessary in tlie promotion of the public health, it has become necessary to change the location of the pipes of the gas company so as to ac¬ commodate them to the new public work. In complying with this requirement at its own expense none of the property of the. gas company has been taken, and the in¬ jury sustained is damnum absque injuria.”

The learned counsel for the railway com¬ pany seem to think that the adjudications relating to the police power of the state to protect the public health, the public morals, and the public safety are not applicable, in principle, to cases where the police power is exerted for the general well-being of the community apart from any question of the public health, the public morals, or the pub¬ lic safety. Hence, he presses the thought that the petition in this case does not, in words, suggest that the drainage in question has anything to do with the health .of the drainage district, but only avers that the system of drainage adopted by the commis¬ sioners will reclaim the lands of the dis¬ trict, and make them tillable or fit for cul¬ tivation. We cannot assent to the view ex¬ pressed by counsel. We hold that the police power of a state embraces regulations de¬ signed to promote the public convenience or the general prosperity, as well as regula¬ tions designed to promote the public health, the public morals, or the public safety. Lake Shore cG M. S. R. Co. v. Ohio, 173 U. S. 285, 292, 43 L. ed. 702, 704. 19 Sup. Ct. Rep. 465; Gilman v. Philadelphia, 3 Wall. 713, 729, 18 L. ed. 96, 100; Pound v. Turck, 95 U. S. 459, 464, 24 L. ed. 525, 527 ; Hanni- 200 U. S.

bal <£- St. J. R. Co. v. Husen, 95 U. S. 470,

24 L. ed. 529. And the validity of a police regulation, whether established directly by the state or by some public body acting un¬ der its sanction, must depend upon the cir¬ cumstances of each case and the character of the regulation, whether arbitrary or rea¬ sonable, and whether really designed to ac¬ complish a legitimate public purpose. Pri¬ vate property cannot be taken without com¬ pensation for public use under a police regu¬ lation relating 'strictly to the public health, [593] the public morals, or the public safety, any more than under a police regulation having no relation to such matters, but only to the general welfare. The foundations upon which the power rests are in every case the same. This power, as said in Carthage v. Frederick, 122 N. Y. 268, 10 L. R. A. 178,

19 Am. St. Rep. 490, 25 N. E. 480, has al¬ ways been exercised by municipal corpora¬ tions, “by making regulations to preserve order, to promote freedom of communica¬ tion, and to facilitate the transaction of business in crowded communities. Compen¬ sation has never been a condition of its ex¬ ercise, even when attended with inconven¬ ience or pecuniary loss, as each member of a community is presumed to be benefited by that which promotes the general welfare.”

The constitutional requirement of due proc¬ ess of law, which embraces compensation for private property taken for public use, applies in every case of the exertion of gov¬ ernmental power. If, in the execution of any power, no matter what it is, the gov¬ ernment, Federal or state, finds it necessary to take private property for public use, it must obey the constitutional injunction to make or secure just compensation to the owner. Cherokee Nation V. Southern Kan¬ sas R. Co. 135 U. S. 641, 659, 34 L. ed. 295,

303, 10 Sup. Ct. Rep. 965; Sweet v. Rechel,

159 U. S. 380, 399, 402, 40 L. ed. 188, 196,

197, 16 Sup. Ct. Rep. 43; Monongahela Nav.

Co. v. United States, 148 U. S. 312, 336,

37 L. ed. 463, 471, 13 Sup. Ct. Rep. 622; United States v. Lynah, 188 U. S. 445, 47 L. ed. 539, 23 Sup. Ct. Rep. 349. If the means employed have no real, substantial relation to public objects which govern¬ ment may legally accomplish, — if they are arbitrary and unreasonable, beyond the ne¬ cessities of the case, — the judiciary will dis¬ regard mere forms, and interfere for the pro¬ tection of rights injuriously affected by such illegal action. The authority of the courts to interfere in such cases is beyond all doubt. Minnesota v. Barber, 136 U. S.

313, 320, 34 L. ed. 455, 458, 3 Inters. Com.

Rep. 185, 10 Sup. Ct. Rep. 862. Upon the gen¬ eral subject there is no real conflict among the adjudged cases. Whatever conflict there is arises upon the question whether there

609

593-596

Supreme Court of the United States.

Oct. Teem,

has beet> or will be in the particular case, within the true meaning of the Constitution, a “taking” of private property for public use. If the injury complained of is only in¬ cidental to the legitimate exercise of gov¬ ernmental powers for the public good, then

[594] there is *no taking of property for the pub¬ lic use, and a right to compensation, on ac¬ count of such injury, does not attach under the Constitution. Such is the present case. There are, unquestionably, limitations upon the exercise of the police power which can¬ not, under any circumstances, be ignored. But the clause prohibiting the taking of private property without compensation “is not intended as a limitation of the exercise of those police powers which are necessary to the tranquillity of every well-ordered community, nor of that general power over private property which is necessary for the orderly existence of all governments. It has always been held that the legislature may make police regulations, although they may interfere with the full enjoyment of private property, and though no compensa¬ tion is given.” Sedgw. Stat. & Const. Law,

It remains to deal with a particular as¬ pect of the case. The opening under the present bridge, we assume from the record, was sufficient, when the bridge was con¬ structed, to pass all the water naturally flowing in the creek from lands in that lo¬ cality. It is sufficient if the channel of the river be left as it is now. The commission¬ ers demand, however, as they may rightfully do in the public interest, a larger, deeper, and wider channel in order to accommodate the increased volume of water in the creek that will come from the proposed plan of the commissioners. But that is a matter which concerns the public, not the railway company. The duty of the company will end when it removes the obstructions which it has placed in the way of enlarging, deep¬ ening, and widening of the channel. It fol¬ lows, upon principles of justice, that while the expense attendant upon the removal of the present bridge and culvert and the tim¬ bers and stones placed by the company in the cr«ek, as well as the expense of the erection of any new bridge which the com¬ pany may elect to construct in order to con¬ form to the plan of the commissioners, should be borne by the railway company, the expense attendant merely upon the re¬ moval of soil in order to enlarge, deepen, and widen the channel must be borne by the district. The expense to be borne by the

[595] district and the railway ’company, respec¬ tively, can be ascertained by the state court in some appropriate way, and such orders made as will be necessary to facilitate the ex¬ ecution of the plan of the commissioners. 610

Without further discussion, we hold it to be the duty of the railway company, at its own expense, to remove from the creek the present bridge, culvert, timbers, and stones placed there by it, and also (unless it abandons or surrenders its right to cross the creek at or in the vicinity of the present crossing) to erect at its own expense and maintain a new bridge for crossing that will conform to the regulations established by the drainage commissioners, under the au¬ thority of the state ; and such a requirement if enforced will not amount to a taking of private property for public use within the meaning of the Constitution, nor to a denial of the equal protection of the laws.

Leaving it to the state court to give ef¬ fect to these views by appropriate orders, and subject to the above qualifications, the decree of the state court is affirmed.

Mr. Justice Holmes, concurring:

I concur in the main with the judgment of the court. I agree that the public au¬ thority has a right to widen or deepen a channel if it sees fit, and that any cost that the railroad is put to in rebuilding a bridge the railroad must bear. But the public must pay for the widening or deepening, and I think that it does not matter whether what it has to remove is the original earth or same other substance lawfully put in the place of the original earth. Very likely in this case the distinction is of little im¬ portance; but it may be hereafter. I sup¬ pose it to be plain, as my brother Brewer says, that, if an expense is thrown upon the railroad unlawfully, its property is taken for public use without due compensation. Woodward v. Central Vermont R. Co. 180 Mass. 599, 62 N. E. 1051.

*1 am authorized to say that my brothers[596] White and McKenna agree with my view.

Mr. Justice Brewer, dissenting:

The question in this case is a narrow one, yet of profound importance, and, involving, as in my judgment it does, a grievous wrong to owners of private property, I am con¬ strained to dissent. Conceding the regulari¬ ty of the proceedings and the power of the state to drain the lands in the drainage dis¬ trict, and, if necessary therefor, to compel the building of a new and enlarged bridge over Rob Roy creek, I dissent from the con¬ clusion that the state may cast the entire cost of such rebuilding upon the railroad company.

It appears from the petition, which was demurred to, and whose allegations of fact must therefore be taken as true, that the drainage district consists of about 2,000 acres on both sides of Rob Roy creek; that a majority of the lands of said drainage

200 TJ. S.

Chicago, B. & Q. R. Co. v. Illinois ex rel. Grimwood.

596-598

district are swamp or slough lands, and, under natural conditions, not subject to cul¬ tivation, but by drainage will all be greatly improved and made good tillable lands. The railroad company has for forty years maintained a bridge or culvert over Rob Roy creek which has answered and does answer all its purposes and necessities. The cost of the ditches and drains in the drainage dis¬ trict in accordance with the plans adopted by the commissioners is estimated at $20,-

the creek does not exceed in value $8,000, and a new bridge or culvert can be con¬ structed at a cost of not exceeding $13,000. The drainage act provides for an appraise¬ ment of the damage done to any tract by the construction of the proposed work, and a judgment in favor of the owner against the commissioners of the district for that amount. It also provides for an assessment of the benefits to the different tracts, upon the basis of which assessments taxes are to be levied to pay for the construction and maintenance of the drainage system. In [597] other words, any damage done to *any par¬ ticular tract by the construction of the drainage system is to be paid to the owner of that tract, if a private individual, and the tracts which are benefited are to be charged with the cost in proportion to the amount of benefit i-eceived. Section 40% of the drainage act then provides :

“The commissioners shall have the power and are required to make all necessary bridges and culverts along or across any public highway or railroad which may be deemed necessary for the use or protection of the work, and the cost of the same shall be paid out of the road and bridge tax, or by the railroad company, as the case may be: Provided, however, notice shall first be given to the road or railroad authorities to build or construct such a bridge or culvert, and they shall have thirty days in which to build or construct the same, such bridges or culverts shall, in all cases, be constructed so as not to interfere with the free flow of wa¬ ter through the drains of the district. Should any railroad company refuse or neglect to build or construct any bridge or culvert as herein required, the commissioners construc¬ ting the same may recover the cost and ex¬ penses therefor in a suit against said com¬ pany before any justice of the peace or any court having jurisdiction, and reasonable attorney's fees may be recovered as part of the cost. The proper authorities of any public road or railroad shall have the right of appeal the same as provided for individ¬ ual landowners.”

According to this, if any bridge or culvert on any public highway is needed in order to perfect the drainage system, the cost of it

200 U. S.

is to be paid out of the public funds; but if a bridge or culvert is required on a rail¬ road, the cost of it must be paid by the rail¬ road company. And this is arbitrary, with¬ out any appraisement of benefits or damages.

Now, the property of a railroad company is private property. It cannot be taken for public uses without just compensation.

True, it is used by the owners in perform¬ ing the quasi public work of transportation, but it is not given up to public uses general¬ ly. It is not devoted to education or the improvement of farm lands, or, indeed, any other use than that of transportation. *If[598] taken therefrom and devoted to other public uses it is the taking of private property for public uses. That this can be done may be conceded, but only upon just compensation.

When private property is taken for public uses compensation must be paid. That is the mandate of the Federal Constitution and of that of nearly every state in the Union. Independently of such mandate, compensa¬ tion would be required. In 2 Kent, Com.

12th ed. p. 339, it is said:

“A provision for compensation is a nec¬ essary attendant on the due and constitu¬ tional exercise of the power of the lawgiver to deprive an individual of his property without his consent; and this principle in American constitutional jurisprudence is founded in natural equity, and is laid down by jurists as an acknowledged principle of universal law.” See also cases cited in the note; especially Gardner v. Newburgh, 2 Johns. Ch. 162, 166, 7 Am. Dec. 526.

In Sinnickson v. Johnson, 17 N. J. L.

129, 145, 34 Am. Dec. 184, referred to ap¬ provingly by this court in Pumpelly v.

Green Pay <& M. Canal Go. 13 Wall. 166,

178, 20 L. ed. 557, 560; and Monongahela Nav. Co. v. United States, 148 U.' S. 312,

324, 37 L. ed. 463, 467, 13 Sup. Ct. Rep.

622, 625, it was said:

“This power to take private property reaches back of all constituted provisions; and it seems to have been considered a set¬ tled principle of universal law that the right to compensation is an incident to the exercise of that power; that the one is so inseparably connected with the other that they may be said to exist, not as separate and distinct principles, but as parts of one and the same principle.”

If this be true when the taking is for that which is solely a public use, how much more true is it when the taking is largely for the benefit of private individuals, and at best on¬ ly incidentally for the benefit 6f the public?

Now the sole purpose of this proceeding, as admitted by the demurrer, was the trans¬ formation of these swamp and untillable

611

598-601

Supreme Court of the United States.

Oct. Term,

lands into good tillable lands; in other words, to that extent, increasing the value of the farms in the hands of their private

[599] owners. While the statute ‘under which these proceedings were had contemplates drainage for agricultural and sanitary pur¬ poses, there is nothing in this record to show that any sanitary result was contem¬ plated, and the only object disclosed is the direct beneficial result to the owners of these swamp lands. There is not the slight¬ est intimation that the health, morals, or safety of the community will be promoted, or is intended to be promoted, by the drain¬ age. I quote the exact language of the petition :

“And the petitioners aver that the afore¬ said location of the ditch or drain along the said Rob Roy creek was for the purpose of enlarging the channel or water course of the aforesaid Rob Roy creek, and thereby en¬ abling the land in said drainage district to be better drained and render the soil in said district more tillable.

• •••••

“And your petitioners aver tnat a ma¬ jority of the lands of said drainage district are what is known as swamp or slough land, and under the present condition are not subject to cultivation, but by means of uie proposed deepening and enlarging of said Rob Roy creek, as herein described, and as a result of the removal of said timbers and stones in said Rob Roy creek, at the place aforesaid, and of the enlargement of and deepening of said Rob Roy creek, all of the lands in said drainage district will be greatly improved, and made good, til¬ lable land, subject to cultivation.”

If it be a principle of natural justice that private property shall not be taken for pub¬ lic purposes without just compensation, is it not equally a principle of natural justice that no man shall be compelled to pay out money for the benefit of the public without any reciprocal compensation? What differ¬ ence in equity does it make whether a piece of land is taken for public uses or so many dollars for like purposes? Gary Li¬ brary v. Bliss, 151 Mass. 364, 378, 379, 7 L. R. A. 765, 25 N. E. 902; Woodward v. Central Vermont It. Go. 180 Mass. 599, 603, 62 N. E. 1051.

But it is said that this is done under the police power of the state, and that that can

[600] be exercised without any provision for ‘com¬ pensation. It seems to me the police power lias become the refuge of every grievous wrong upon private property. Whenever 612

any unjust burden is cast upon the owner of private property which cannot be support¬ ed under the power of eminent domain or that of taxation, it is referred to the police pow¬ er. But no exercise of the police power can disregard the constitutional guaranties in re¬ spect to the taking of private property, due process, and equal protection, nor . should it override the demands of natural justice.

The question in the case is not how far the state may go in compelling a railroad com¬ pany to expend money in increasing its facilities for transportation, but how far it can go in charging upon the company the cost of improving farms along the line of its road.

Again, it will be perceived that by the section quoted, if, in consequence of the drainage, a bridge or culvert is required on any public highway, its cost is paid out of the public funds; but whenever a bridge or culvert is required ajong or across a railroad the company is charged with the cost. In the one case the public pays, and in the other a private owner. It is not pre¬ tended that the railway is in any way bene¬ fited by the drainage. Its property is not improved, its revenues are not increased.

The reconstruction of the bridge or culvert is not needed by it in its work of transporta¬ tion. It has used this present bridge for over forty years, meeting in that time all the demands of the public for transporta¬ tion. So that, receiving no benefit, it is charged with the cost of reconstruction, — about $13,000, — in order to improve the value of the lands belonging to private own¬ ers in this drainage district, when if a highway crossed at the same place and a new bridge or culvert was required, the cost of it would be paid out of the public funds.

I cannot conceive how this can be looked up¬ on as “the equal protection of the laws.”

Further, even under the conclusion reached by the court, the plaintiff in error should recover its costs, and in accord with the com¬ mon practice in this court, the order snould be that the judgment be reversed and 11 le case remanded for further proceedings ‘not [601] inconsistent with our opinion. Stanley v. Schicalby, 162 U. S. 255, 282, 40 L. ed. OOO,

969, 16 Sup. Ct. Rep. 754. Why should it be compelled to pay two or three hundred dollars in costs when it has shown that the decision below placed an improper cnarge upon it, the amount of which is not dis¬ closed, and which may be a very substantial sum ?

I am, therefore, constrained to dissent from both the opinion and judgment.

200 U. S.

United States . Clark.