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
For the purposes of its railroad, the Wilmington & Raleigh Company acquired a strip of land 130 feet wide extending through Goldsboro from north to south, and constructed its road upon it before the incorporation of the town. The land was acquired in part under deeds conveying title in fee simple, in part by condemnation proceedings which conferred upon the Company, as is claimed, the equivalent of a fee simple. Afterwards, two other companies, designated respectively as the North Carolina Railroad Company and the Atlantic & North Carolina Railroad Company, with the consent and permission of the Wilmington & Raleigh, or Wilmington & Weldon, and under agreements with that company, constructed their railroad tracks upon the same "right of way."
The town naturally grew along the railroad, and the right of way, so far as not occupied by the tracks, was and still is used for the ordinary purposes of a street, without objection by plaintiff in error or its predecessors in title. In laying out the town, this right of way was designated as a street 130 feet wide; the portion lying east of the tracks being designated as East Center Street, the portion on the west of the tracks as West Center Street. Cross streets were laid out, designated successively (commencing at the north) as Holly, Beech, Vine, Oak, Ash, Mulberry, Walnut, Chestnut, Spruce, Pine, and Elm Streets. East and West Center Streets have become the principal business street of the town, and the portion between Ash and Spruce — four blocks — is the heart of the city.
The municipal corporation has for many years worked and maintained its streets and cross streets, including so much of the surface of East and West Center Streets as lies outside of the space actually occupied by the railroad tracks. More recently it has instituted a system of street grades and of drainage extending throughout the city, and has paved a considerable part of East and West Center Streets in conformity to the grade so established. From Chestnut Street north the railroad tracks are (or, at least, prior to the municipal action complained of they were), from 6 to 18 inches above the established street grade; the tracks south of Chestnut Street being in a cut from 1 to 8 feet deep.
In November, 1909, the Board of Aldermen 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
Plaintiff in error began this action against the City of Goldsboro in the Superior Court of Wayne County, seeking to restrain the enforcement of the ordinances. A temporary restraining order was granted. At the hearing, the objection to the enforcement of § 1 was abandoned by plaintiff; as to the other sections the court vacated the restraining order. Upon appeal, the Supreme Court of North Carolina affirmed the judgment. 155 Nor. Car. 356. The present writ of error under § 709, Rev. Stat. (Judicial Code, § 237), is based upon the insistence, made in the state courts and there overruled, that the ordinances impair the obligation of the contract contained in the charter of the Company, in contravention of § 10 of Art. I of the Federal Constitution, and deprive the Company of its property without due process of law, in contravention of the Fourteenth Amendment.
With reference to the section requiring the lowering of the tracks between Walnut and Vine Streets so as to make them conform to the grade lines of the streets, the court held that the Company took its charter subject to the right of the State to lay out new roads and streets and to require the Company to make such alterations as would prevent the public passage over its tracks from being impeded; and that there was no contract exempting the Railroad from changing its grade at crossings when required.
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
It is among other things contended by plaintiff in error that the ordinances are not within the powers conferred by the Legislature of North Carolina upon the municipal corporation. This is a question of state law, which for present purposes is conclusively settled by the decision of the Supreme Court of North Carolina in this case. Merchants' Bank v. Pennsylvania, 167 U.S. 461, 462, and cases cited; Lombard v. West Chicago Park Com., 181 U.S. 33, 43.
A municipal by-law or ordinance, enacted by virtue of power for that purpose delegated by the legislature of the State, is a state law within the meaning of the Federal Constitution. New Orleans Water Works v. Louisiana Sugar Co., 125 U.S. 18, 31; Hamilton Gas Light Co. v. Hamilton City, 146 U.S. 258, 266; St. Paul Gas Light Co. v. St. Paul, 181 U.S. 142, 148; Northern Pacific Railway v. Duluth, 208 U.S. 583, 590; Grand Trunk Ry. v. Indiana R.R. Comm., 221 U.S. 400, 403; Ross v. Oregon, 227 U.S. 150, 162.
And any enactment, from whatever source originating, to which a State gives the force of law, is a statute of the State, within the meaning of the pertinent clause of § 709, Rev. Stat.; Judicial Code, § 237; which confers jurisdiction on this court. Williams v. Bruffy, 96 U.S. 176, 183.
We must, therefore, treat the ordinances as legislation enacted by virtue of the law-making power of the State. They are manifestly an exertion of the police power, and the question is whether, viewed in that light, they run counter to the "contract" or "due process" clauses.
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
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 railroad
For it is settled that neither the "contract" clause nor the "due process" clause has the effect of overriding the power of the State to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community; that this power can neither be abdicated nor bargained away, and is inalienable even by express grant; and that all contract and property rights are held subject to its fair exercise. Slaughter-House Cases, 16 Wall. 36, 62; Munn v. Illinois, 94 U.S. 113, 125; Beer Co. v. Massachusetts, 97 U.S. 25, 33; Mugler v. Kansas, 123 U.S. 623, 665; Crowley v. Christensen, 137 U.S. 86, 89; New York &c. R.R. Co. v. Bristol, 151 U.S. 556, 567; Texas &c. R.R. Co. v. Miller, 221 U.S. 408, 414, 415. And the enforcement of uncompensated obedience to a regulation established under this power for the public health or safety is not an unconstitutional taking of property without compensation or without
Of course, if it appear that the regulation under criticism is not in any way designed to promote the health, comfort, safety, or welfare of the community, or that the means employed have no real and substantial relation to the avowed or ostensible purpose, or that there is wanton or arbitrary interference with private rights, the question arises whether the law-making body has exceeded the legitimate bounds of the police power.
The ordinances now in question must be considered in view not only of the charter and property rights of plaintiff in error, but of the actual situation that has developed and now exists in Goldsboro, with the consent and long acquiescence of plaintiff in error and its predecessors in interest. A town of considerable size and importance has grown up along the line of the railroad. The strip of land 130 feet in width, so far as it is not occupied by the railroad tracks, for many years has been and still is used for the ordinary purposes of a street. The Supreme Court of North Carolina found, upon adequate evidence, that it is the main business street of the town, frequently crowded with pedestrians and vehicles; and that the operation of trains along it, notwithstanding the utmost care of the railroad company, tends to obstruct the crossings and is fraught with danger to life and property. There are, within the blocks covered by the ordinances, two main lines of railway besides that of plaintiff in error. These of course complicate the situation by narrowing the spaces available for ordinary travel north and south on East and West Center Streets, and must also enhance the dangers at the crossings.
It is very properly conceded that the company may be required to limit the speed of its trains and to have flagmen
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,
As to filling in between the rails, elsewhere than at the crossing streets, we have to do not merely with the necessities of drainage, but with the safety of persons crossing the railroad tracks midway of the respective street blocks. The power of the State to prescribe precautions with respect to the running of railroad trains so as to guard against injuries to the persons or property of others is not confined to the establishment of such precautions at highway crossings. State enactments requiring railroad corporations to maintain fences and cattle guards alongside the railroad have been repeatedly sustained. Missouri Pacific Ry. Co. v. Humes, 115 U.S. 512, 522; Minneapolis Ry. Co. v. Beckwith, 129 U.S. 26, 34; Minneapolis & St. Louis Ry. v. Emmons, 149 U.S. 364, 366. For the purposes of the argument it may be conceded that no person has the right as against the railroad company to pass over its tracks except at one of the street intersections; although this may not be entirely clear. But unless excluding fences be established adjacent to the railroad tracks (and this is not proposed nor even suggested as feasible), it is inevitable that many people, with or without right (children of tender years, among others), will cross at places other than the street intersections; and a police regulation intended to prevent injuries to persons thus crossing cannot be judicially denounced as arbitrary. Other grounds for sustaining § 5 might be mentioned; but we need not further particularize.
There remain only the limitation of car shifting and the prohibition of the standing of cars upon East and West
The prohibition against the standing of cars for a longer period than five minutes within the same four blocks is intended to prevent the loading and unloading of cars in the street, with the attendant use of wagons and drays for the purpose. In view of the obstruction to street travel that is naturally incident to such operations, the prohibition cannot be deemed wholly unreasonable. In effect it prevents ordinary travel upon the street from being thus obstructed, and requires that the loading and unloading of cars shall be done at the regular freight terminals.
The regulations in question are thus found to be fairly designed to promote the public health, safety, and welfare; the measures adopted appear to be reasonably suited to the purposes they are intended to accomplish; and we are unable to say that there is any unnecessary interference with the operations of the railroad, or with the property rights of plaintiff in error. Therefore, no violation of the "contract" or "due process" clause is shown.