Atl. Coast Line R.R. Co. v. City of Goldsboro, 232 U.S. 548 (1914)

The constitutional validity of ordinances affecting public safety as affected by railroads must be considered not only in view of charter p. 549and property rights but also of the consent and acquiescence of the owners of railroads.

The city of Goldsboro has not power to prevent the use of the franchise and property of the plaintiff in error, by ordinance. A., T. & S. F. Ry. Co. v. Armstrong, 80 Pac. p. 550Rep. 978; B. & P. R. R. v. Baptist Church, 108 U. S. 317; Chicago &c. Ry. Co. v. Joliet, 79 Illinois, 25; Drake v. R. R., 7 Barb. 508; Morgan v. R. R., 98 Nor. Car. 247; Moses v. R. R., 21 Illinois, 516; New Orleans v. L’enfant, 126 Louisiana, No. 17,995; Railroad v. Applegate, 8 Dana, 289; Railway Co. v. Brand, 4 Eng. & Ir. App. 171-196; Taylor v. R. R., 145 Nor. Car. 400; Thomasson v. R. R., 142 Nor. Car. 318^ Yates v. Milwaukee, 10 Wall. 498.

The Atlantic Coast Line Railroad Company, plaintiff in error, has succeeded to the ownership of the property, franchises, and rights of the Wilmington & Raleigh Railroad Company, which was chartered by the General Assembly of North Carolina in the year 1833, and whose name was p. 551afterwards changed to Wilmington & Weldon Railroad Company. Under its charter powers the original company constructed its railroad from Wilmington to and into Wayne County, North Carolina, passing through the place which later, and in the year 1847, became incorporated as the Town of Goldsboro, now the City of Goldsboro, defendant in error.

In November, 1909, the Board of Aidermen passed an ordinance or ordinances containing the following provisions: Section 1 rendered it unlawful for any railroad company to run any freight or passenger train on East or West Center Streets at a rate of speed exceeding four miles per hour, and required the companies to have flagmen proceed fifty feet in front of every train to warn persons of its approach. Section 2 provided that the shifting p. 553limits on East and West Center Streets should be from Spruce Street to the city limits on the south, and from Ash Street to the city limits on the north; thus excluding the four blocks between Spruce and Ash Streets. Section 3 declared it to be unlawful for any railroad company to do any shifting within those four blocks at any other time than between the hours of 6.30 and 8.30 a. m., and between 4.30 and 6.30 p. m. Section 4 rendered it unlawful for any railroad company to place any car and allow it to stand for a longer period than five minutes at any point on East and West Center Streets within the same four blocks. Section 5 required all railroad companies owning tracks on East and West Center Streets between Walnut and Vine (four blocks) to lower the tracks so as to make them conform to the grade line of the streets, and to fill in the tracks between the rails; the required lowering being specified as 6 inches from Walnut to Mulberry, 10 inches between Mulberry and Ash, and 18 inches between Ash and Vine Streets. Substantial penalties were prescribed for violations of these prohibitions.

In this court, plaintiff in error abandons its attack upon the right of the City to require a change of grade at the street crossings. The controversy, therefore, is now limited to (a) the restrictions imposed by §§ 2 and 3 upon shifting operations on East and West Center Streets between Spruce and Ash Streets; (b) the prohibition of § 4 against the standing of cars for a longer period than five minutes within the same four blocks, and (c) the requirement under § 5 that the tracks from Walnut to Vine Streets shall conform to the grade of East and West Center Streets and shall be filled in between the rails, elsewhere p. 555than at the crossing streets. Upon the argument, it was stated by counsel representing the City that plaintiff in error had complied with the decision of the state court as to § 5, at least to the extent of lowering its tracks. But there was no clear admission of the fact in behalf of plaintiff in error, and we shall therefore disregard the supposed compliance.

Plaintiff in error lays more particular stress upon the insistence that its property rights in the street will be infringed by the enforcement of the ordinances. Because its predecessors acquired the strip of land in fee simple, and because the municipal corporation has never condemned it or made compensation for its use as a street, the contention is that the title of the railroad company remains until now, absolute and unqualified. Reference is made to Rev. Code of Nor. Car., c. 65, § 23. This section, it seems, became law in North Carolina in the year 1854, and has remained upon the statute books continuously until the present time, appearing now as § 388 of the Revisal of 1908; see also Code 1883, § 150. It provides that “No railroad, plank road, turnpike or canal company p. 557shall be barred of, or presumed to have conveyed, any real estate, right of way, easement, leasehold, or other interest in the soil which may have been condemned, or otherwise obtained for its use, as a right of way, depot, station-house or place of landing, by any statute of limitation or by occupation of the same by any person whatever.” Two cases, Railroad v. Olive, 142 Nor. Car. 257, 271, and Muse v. Railroad, 149 Nor. Car. 443, 446, are cited as supporting the proposition that under this statute a permissive user of any portion of the railroad right of way by others, or even by the public as a street, cannot impair the title of the company unless at least there be adverse user or possession for a sufficient period to satisfy the statutes on that subject; and it is insisted there has been none. But in both cases the question was as to the effect of the permissive user or possession upon merely private rights, and in the Muse Case it was expressly conceded (149 Nor. Car. 446) that the rights of the railroad company in that portion of its right of way that had been used as a street, were subject to the police power of the town. In the present case, likewise, the state court (155 Nor. Car. 363) treated the question of the ownership of the soil as not involved in the decision.

And we are not at present particularly concerned with either contract or property rights, except as they may serve to show the conditions under which the ordinances were adopted, and may bear upon the question of the reasonableness of those regulations. These have to do with the use and control of the property, rather than with its ownership; with the mode in which the franchise shall be enjoyed, rather than with its scope. Conceding, for argument’s sake only, the utmost that may be claimed as to the charter and property rights of plaintiff in error, we still have yielded nothing that may defeat the exercise of the police power by the State, or by its authorized agency. Adopting the extreme assumption that the p. 558railroad company has still a complete and unqualified ownership of every portion of the strip of land that was originally acquired in fee simple, and as proprietor might lawfully exercise its dominion by excluding the public from it; yet it does not do this, but permits, and long has permitted, the public to use material portions of the strip for ordinary street purposes; it apparently excludes the public from no portion except as the existence of the tracks and the passage of trains may have such a tendency or effect. And thus the Company, at least for the time, devotes its property in part to public uses that are more or less inconsistent with the railroad uses, and under conditions such as to render the railroad operations necessarily a source of danger to the public while enjoying the permitted use. Under such circumstances the State, in the exercise of the police power, may legitimately extend the application of the principle that underlies the maxim sic utere tuo ut alienum non laedas, so far as may be requisite for the protection of the public.

It is very properly conceded that the company may be required to limit the speed of its trains and to have p. 560flagmen precede them to warn persons of their approach; and that the company may be required to change its grade at the street crossings. In New York &c. R. R. Co. v. Bristol, 151 U. S. 556, 567, this court sustained a Connecticut statute directed to the extinction of grade crossings as a menace to public safety, and compelling this to be done at the expense of the companies, although the grade crossings had been long before established under legislative authority. In Chicago, Burlington &c. R. R. v. Chicago, 166 U. S. 226, 251, it was held that when the city opened a new street across the railroad it was not bound to take and pay for the fee in the land, but only to make compensation to the extent that the value of the company’s right to use the land for railroad purposes was diminished by opening the street across it; and that the company was not entitled to have its compensation increased because of the fact that in order to safeguard the crossing it would thereafter be obliged to construct gates, and a tower for operating them, plank the crossing, fill in between the rails, and incur certain annual expenses for depreciation, maintenance, employment of gatemen, etc. To the same effect are Wabash Railroad Co. v. Defiance, 167 U. S. 88, 97; Chicago &c. Railroad v. Nebraska, 170 U. S. 57, 75; Northern Pacific Ry. v. Duluth, 208 U. S. 583, 597; Cincinnati &c. Ry. v. Connersville, 218 U. S. 336, 343; Chicago, M. & St. P. Ry. v. Minneapolis, decided this day, ante, p. 430. And see Grand Trunk Western Ry. v. South Bend, 227 U. S. 544, 554.

But manifestly the tracks cannot be brought to the street grade at the crossings without being lowered between the crossings as well. And if this is to be done, it follows that not merely the tracks but the surface adjacent to the tracks must be made to conform to the established grade of East and West Center Streets between the crossing streets; or else the street will be rendered materially less convenient for purposes of north-and-south travel, p. 561and the drainage will be materially interfered with; or at least the municipal authorities might reasonably so determine. The establishment of a proper system of drainage for the City in the interest of the public health and general welfare is an object that legitimately invokes the exercise of the police power. New Orleans Gas Co. v. Drainage Commission, 197 U. S. 453,460.

There remain only the limitation of car shifting and the prohibition of the standing of cars upon East and West vol . ccxxxn—36 p. 562Center Streets in the four blocks that lie between Spruce and Ash Streets, in the heart of the City. As already pointed out, the state court construed “ shifting ” as applying only to the “cutting out and putting in” of cars in the making up of trains. This operation is not to be performed within the four blocks specified except during two hours in the morning and two hours in the afternoon of each day. The time limits were evidently adopted with regard to the necessities of the industries that are located along the railroad, and at the same time with a view to the necessities of general travel upon the streets. It was complained that the time allowed for shifting is inadequate; but there is nothing in the proof on this subject to overthrow the finding of the court that the ordinance is a reasonable exercise of the police power.

Judgment affirmed. p. 563232 U. S. Syllabus.

In support of these contentions, see Atwood v. Impson, 20 N. J. Eq. 157; Brown v. State, 16 S. W. Rep. (Miss.) 202; Bucklin v. State, 20 Oh. St. 18; Burt v. State, 16 S. W. Rep. (Miss.) 342; Burton v. United States, 196 U. S. 283; Coffin v. United States, 156 U. S. 432; Commonwealth v. Churchill, 11 Met. 538; Commonwealth v. Webster, 5 Cush. 295; Cox v. People, 82 Illinois, 191; Dimick v. Downs, 82 Illinois, 570; Frazier v. State, 117 Tennessee, 430; Gilchrists. M’Kee, 4 Watts, 380; Hoke v. United States, 227 U. S. 308; Horner v. United States, 143 U. S. 570; Johnson v. State, p. 56516 So. Rep. (Miss.) 494; Keek v. United States, 172 U. S. 445; Kolb v. Union Railroad Co., 54 L. R. A; 646; Metze v. Tuteur, 77 Wisconsin, 243; Miles v. United States, 113 U. S. 304; Moore v. Moore, 73 Texas, 382; People v. Murray, 14 California, 159; People v. Undung, 108 California, 83; Pinkard v. State, 30 Georgia, 757; Railroad Co. v. Gower, 85 Tennessee, 473; Rudsdill v. Slingerland, 18 Minnesota, 380; Spears v. Forrest, 15 Vermont, 437; Stabler v. Commonwealth, 95 Pa. St. 318; State v. Butler, 26 W. Va. 90; State v. Carson, 66 Maine, 116; State v. Hurley, 79 Vermont, 28; State v. King, 88 Minnesota, 175; State v. Smith, 7 Vermont, 141; Stephens v. State, 107 Indiana, 185; Thompson v. People, 96 Illinois, 158; Williamson v. United States, 207 U. S. 425; United States v. Stephens, 8 Sawy. 116; Rapalje on Witnesses, §197; Thompson, Trials, §§ 524, 525; Wharton, Ev., 3d ed., § 541; Wharton, Crim. Law (9th ed.), § 187.

The case was brought directly to this court, because the constitutionality of the statute was drawn in question. This question has since been settled adversely to plaintiffs in error. Hoke v. United States, 227 U. S. 308. Nevertheless, we must retain jurisdiction for the purpose of passing upon the other questions in the record. Horner p. 566v. United States, 143 U. S. 570, 576; Burton v. United States, 196 V. S. 283, 295; Williamson v. United States, 207 U. S. 425, 432.

1. It is insisted that the offense was not fully proved because there was nothing to show that defendants either directed or knew how the girls were to come from Milwaukee to Chicago, whether in a private vehicle or through the instrumentality of a common carrier. But, in our opinion, in order to constitute an offense under the act it is not essential that the transportation be by common carrier. The statute reads: “That any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for, or in transporting, in interstate or foreign commerce, . . . any woman or girl for the purpose of prostitution or debauchery, or p. 567for any other immoral purpose, ... or who shall knowingly procure or obtain, or cause to be procured or obtained, or aid or assist in procuring or obtaining, any ticket or tickets, or any form of transportation or evidence of the right thereto, to be used by any woman or girl in interstate or foreign commerce, ... in going to any place for the purpose of prostitution or debauchery, or for any other immoral purpose, . . . whereby any such woman or girl shall be transported in interstate or foreign commerce, . . . shall be deemed guilty of a felony,” etc.

2. The female defendant offered herself as a witness, and in the course of her crqss-examination was asked whether she was addicted to the use of morphine. Having p. 568admitted this, and stated that she had last used it before coming into the court room that morning at ten o’clock, she was asked how often she used it, and whether she had with her the “implements” with which to “take the dose.” She replied in the affirmative. This line of examination was excepted to, and is assigned for error on the ground that she had not put her character at issue. But as we read the record, the evidence was not offered or admitted for its bearing upon her character, but rather to show that she was so much addicted to the use of the drug that the question whether at the moment of testifying she was under its influence, or had recovered from the effects of its last administration, had a material bearing upon her reliability as a witness. It seems to us that in this aspect the evidence was admissible. People v. Webster, 139 N. Y. 73, 87; State v. White, 10 Washington, 611, 613.

3. Error is assigned upon certain rulings of the trial court permitting cross-examination of the same witness, tending to show that she and the other defendant lived unhappily as husband and wife, were occasionally separated, and (as is said) that they at times indulged in the use of pistols. No evidence was in fact offered or admitted tending to show that weapons had been used, if we except an obscure allusion to “pistols” in a letter that had been written by a person in New York City to the female defendant in Chicago. The use made of this letter was permissible for other reasons. The evidence as to the quarrels and separation was plainly admissible. The Government’s case depended mainly upon the testimony of Corder. He appeared to have been an accomplice, hence circumstantial corroboration of his story was especially material. He had testified that Mrs. Wilson asked him to go to Milwaukee for the purpose of getting the two girls, and had mentioned as a circumstance that this conversation took place at the Union Depot in Chicago, where he had met Mrs. Wilson at her request p. 569to aid her in a search for her husband. On her direct examination, she flatly denied this, saying: “I did not take him and he never accompanied me on any trip to hunt for Mr. Wilson; I always knew where Mr. Wilson was.” The cross-examination under consideration was entirely relevant to this part of the testimony in chief.

5. Error is assigned upon the instructions of the trial court to the jury respecting the presumption of innocence, and the definition of reasonable doubt. Counsel for defendants preferred no request upon either subject previous to the delivery of the charge. The court instructed the jury in substance that the arrest of defendants, their indictment by the grand jury, and their arraignment, were no evidence whatever of their guilt; that the presumption of innocence meant that at the beginning of the trial they were as innocent of the charges as any man in the jury-box; that this presumption continued to abide with the defendants as a complete protection, unless and until it gave way because inconsistent with the existence of a situation proved by the evidence in the case beyond all reasonable doubt; that by that [reasonable doubt] was meant, not the frame of mind of a man endeavoring to p. 570find a way out for somebody accused of crime, not a mere capricious doubt, not a frame of mind suggested by something occurring in the trial of the case or in the argument of counsel not based on evidence in the case; but that “reasonable doubt is that frame of mind which forbids you to say, all the evidence considered and weighed, ‘I have an abiding conviction of the defendants’ guilt,’ or as it has been expressed, 11 am convinced of the defendants’ guilt to a moral certainty.’ If you can say that you have such a conviction, then you have no reasonable doubt, and your verdict should be guilty. On the contrary, if that is your frame of mind, if you are in the frame of mind where if it was a matter of importance to you in your own affairs, away from here, you would pause and hesitate, before acting, then you have a reasonable doubt.” At the conclusion of the charge counsel for defendants said: “I should like that the court say a little more on the reasonable doubt, as I believe it was limited only to a moral certainty. That is the only sentence I heard about that.” The argument here is that the instruction as given is faulty, because the court did not tell the jury that the Government must prove its case against defendants beyond a reasonable doubt. As we read the charge, it meant nothing less than that, and was sufficiently favorable to defendants. Miles v. United States, 103 U. S. 304, 309, 312; Hopt v. Utah, 120 U. S. 430, 439, 440; Dunbar v. United States, 156 U. S. 185, 199; Coffin v. United States, 156 U. S. 432, 460; Cochran v. United States, 157 U. S. 286, 299; Davis v. United States, 160 U. S. 469, 487; Allen v. United States, 164 U. S. 492, 500; Dunlop v. United States, 165 U. S. 486, 502.