1975

or employee thereof, shall give any preference to individuals, associations or corporations in furnishing cars or motive power.' An order of the Interstate Commerce Commission is not a lawful order and enforceable where its enforcement will deprive a carrier of its business at a particular place, as in case of an order to discontinue a custom of furnishing cartage.7

76

§ 382. Regulation of Railroads-Protection Against Injury to Persons and Property.-A statute authorizing a municipal corporation to require railroad companies to provide protection against injury to persons and property confers plenary power in those respects over the railroads within the corporate limits.77 So a city, when authorized by the legislature, may regulate the speed of trains within its limits, and this extends to interstate trains in the absence of congressional action on the subject. The Interstate Transit Railway is a railway connecting Kansas City, Missouri, with Kansas City, Kansas, and the exception of its trains from the general provision in the city ordinance respecting the speed of trains in the city was an exception entirely within the power of the legislature to make.78 And it is not an unreasonable requirement that a railroad company light its line

75 Atchison, T. & S. F. R. Co. v. Denver & N. O. R. Co., 110 U. S. 667, 28 L. ed. 291, 4 Sup. Ct. 185 (case reverses 15 Fed. 650), cited in Express Cases, 117 U. S. 1, 29, 6 Sup. Ct. 542, 628, 29 L. ed. 791, which holds that railroad companies are not required by usage, or by the common law, to transport the traffic of independent express companies over their lines in the manner in which such traffic is usually carried and handled. Railroad companies are not obliged either by the common law or by usage to do more as express carriers than to provide the public at large with reasonable ex

press accommodation; and they need not, in the absence of a statute, furnish to all independent express companies equal facilities for doing an express business upon their passenger trains.

Examine Nelson's Interstate Commerce Commission, pp. 48 et seq.

76 Detroit, G. H. & M. Ry. Co. v. Interstate Commerce Commission, 7 Fed. 803, 21 C. C. A. 103, 43 U. S. App. 308.

77

Hayes v. Michigan Central R. R. Co., 111 U. S. 228, 28 L. ed. 410, 4 Sup. Ct. 369.

78 Erb v. Morasch, 177 U. S. 584, 44 L. ed. 897, 20 Sup. Ct. 788.

by electricity within a certain time after notice of the passage of the ordinance so providing.79 Again, a state statute directed to the extinction of railway grade crossings as a menace to public safety, is a proper exercise of the police power of the State.80 So a statute is constitutional which places a part of the burden of expense necessary to improve a bridge, upon a railroad company benefited thereby, as where the bridge, instead of crossing at grade, spans the railroad, and two abutments on the old way are provided for, although there is no technical abandonment of such way 81 A grant of a right of way over a tract of land to a railroad company by a municipal corporation, by an ordinance which provides that the company shall erect suitable fences on the line of the road and maintain gates at street crossings, is not a mere contract, but is an exercise of the right of municipal legislation, and has the force of law within the corporate limits.82 So a State may constitutionally provide by statute, by a general law of uniform operation for the indictment of railroad companies for neglect or failure to furnish pure drinking water for passengers.83 If railroad commissioners have authority under a state statute to investigate the cause of railroad accidents upon notice, and the enactment empowers them to order, after notice and an investigation and hearing,

79 St. Mary v. Lake Erie & W. R. M. R. Co., 73 N. H. 597, 64 Atl. Co. (Ohio), 53 N. E. 595. 202.

80 New York & N. E. R. Co. v. Bristol, 151 U. S. 556, 38 L. ed. 269, 14 Sup. Ct. 437. Cited in Chicago, B. & Q. R. Co. v. Nebraska, 170 U. S. 57, 74, 42 L. ed. 948, 18 Sup. Ct. 513; Wabash R. Co. v. Defiance, 167 U. S. 88, 99, 17 Sup. Ct. 748, 42 L. ed. 87; Louisville & Nashville Rd. v. Kentucky, 161 U. S. 677, 696, 40 L. ed. 849, 16 Sup. Ct. 714. See New York, N. H. & H. R. Co. v. Wheeler (Conn.), 45 Atl. 14; New Haven Steam Sawmill Co. v. City of New Haven, 72 Conn. 276, 44 Atl. 229. See Blake v. Concord &

81 Bristol County, In re, 193 Mass. 257, 79 N. E. 339. See Charlotte, Columbia & Atlanta Rd. Co. v. Gibbes, 142 U. S. 386, 35 L. ed. 1051, 12 Sup. Ct. 255, 45 Am. & Eng. R. Cas. 595; Nashville, C. & St. L. Ry. v. Alabama, 128 U. S. 96, 32 L. ed. 352, 9 Sup. Ct. 28.

82 Hayes v. Michigan Central R. R. Co., 111 U. S. 228, 4 Sup. Ct. 369, 28 L. ed. 410. See Chicago, I. & L. Ry. Co. v. Irons (Ind. App., 1906), 78 N. E. 207.

83 Southern Ry. Co. v. State, 125 Ga. 287, 54 S. E. 160.

such change in the manner of operation of the road as shall be reasonable and expedient to facilitate public safety, an order made, requiring a change in the mode of operation, is void and without jurisdiction where proper notice of the statutory proceeding required is not given.84 The power of a State to create railway corporations, and such creation being for public purposes, embodies the right of the legislature to enact statutes regulating the increase of their capital stock. In the exercise of this right the legislature may enact a statute providing generally for what purposes and upon what terms, conditions and limitations an increase of capital stock may be made. Such regulations tend to prevent secrecy of operation and accounts by such public agencies, and the issue and sale of fictitious or watered stock.85

§ 383. Regulation of Railroads-Providing Stations or Waiting Rooms-Police Power.-It is the proper duty of a railroad company to establish stations at proper places, and it is within the power of the States to make it prima facie a duty of the companies to establish them at all villages and boroughs on their respective lines. And a general law of State, requiring the erection and maintenance of depots by railroad companies on the order of the Railroad and Warehouse Commission under certain conditions specified in the statute, does not deny the railroad company the right to reasonably manage or control property or arbitrarily take its property without its consent, or without compensation or due process of law, and is not repugnant to the Constitution of the United States.86 It is a proper exercise of the police power to require waiting rooms and stations to be erected at railroad crossings; 87 and also suitable and convenient waiting rooms kept and maintained in decent order and repair and fit for the accommodation of the public and subject in these 84 Rutland R. Co., In re (Vt., 1906), 64 Atl. 233.

85 State v. Great Northern Ry. Co., 100 Minn. 445, 10 L. R. A. (N. S.) 250, 111 N. W. 289.

86 Minneapolis & St. L. R. Co. v. Minnesota, 193 U. S. 53, 24 Sup. Ct. 396, 48 L. ed. 614.

87 State v. Kansas City, Ft. S. & G. R. Co. (C. C.), 32 Fed. 722.

respects to a certain degree of supervision or regulation by the Railroad Commission.88 But a railroad company cannot be required to provide two detached depots, one for passengers and another for freight, in one town, even though a Railroad Commission is empowered by statute to provide sufficient station facilities and to locate new depots where the railroad company has selected an inconvenient site.80

89

§ 384. Regulation of Railroads-Sunday Trains-Interstate Commerce-Police Power.-A statute forbidding the running of freight trains on any railroad in the State on Sunday, and providing for the trial and punishment on conviction of the superintendent of a railroad company violating that provision, although it affects interstate commerce in a limited degree, is not, for that reason, a needless intrusion upon the domain of Federal jurisdiction, nor strictly a regulation of interstate commerce, but is an ordinary police regulation designed to secure the well-being and to promote the general welfare of the people within the State, and is not invalid by force alone of the Constitution of the United States; but is to be respected in the courts of the Union until superseded and displaced by some act of Congress, passed in execution of the power granted it by the Constitution. This is especially so where there is nothing in such state legislation. that suggests that it was enacted with the purpose to regulate interstate commerce, or with any other purpose than to prescribe a rule of civil duty for all who on the Sabbath day, are within the territorial jurisdiction of the State.90

90

88 Illinois Cent. R. Co. v. Common- 89 State v. Yazoo & M. V. R. Co., wealth (Ky.), 52 S. W. 818. As to 87 Miss. 679, 40 So. 263. abandonment of stations, authority of railroad commissioners to consent or refuse to consent thereto in regard to existing stations, and their inability to contract so as to bind the State concerning the establishment of stations, see Railroad Company v. Hammersley, 104 U. S. 1, 26 L. ed.

629.

* Hennington v. Georgia, 163 U. S. 299, 41 L. ed. 166, 16 Sup. Ct. 1086. Cited in Employers' Liability Cases (Howard v. Illinois Central Rd. Co. and Brooks v. Southern Pacific Co.), 207 U. S. 463, 535 (in dissenting opinion of Moody, J.); Cleveland, C. C. & St. L. R. Co. v. Illinois, 177 U. S. 514, 517, 20 Sup. Ct. 722, 44

§ 385. Regulation of Railroads-Safety Appliances and Devices-Heating Cars.-The object of the provisions of the Safety Appliance Acts of 1893 and 1896,91 declaring it to be unlawful for any common carrier engaged in interstate commerce to haul or permit to be hauled or used on its line any car used in moving interstate commerce not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars, was to protect the lives and limbs of railroad employees by rendering it unnecessary for men operating the couplers to go between the ends of the cars, and the words "used in moving interstate traffic" occurring therein are not to be taken in a narrow sense.92 The statute also includes a car of another company hauled over the lines of a railroad and employed in moving interstate traffic; so a car is used in such traffic where, although belonging to another company, it is received by a railroad from the latter and taken from its yards with the intention of making part of a train and moving it to its destination in another State, and if it is not equipped as provided for by the statute as to safety appliances the railroad company so employing the car in transportation is liable for the penalty imposed by the enactment.93 The statute also relates to all kinds of cars running on the rails, including locomotives and steam shovel cars.94 And in holding that locomotive engines are included

L. ed. 868; Petit v. Minnesota, 177 U. S. 164, 44 L. ed. 716, 20 Sup. Ct. 666; Lake Shore & Mich. South. Ry. Co. v. Ohio, 173 U. S. 285, 289, 43 L. ed. 702, 19 Sup. Ct. 465 (in dissenting opinion); Missouri, K. & T. Ry. Co. v. Haber, 169 U. S. 613, 627, 18 Sup. Ct. 488, 42 L. ed. 878; Gladson v. Missouri, 166 U. S. 427, 430, 41 L. ed. 1064, 17 Sup. Ct. 627; Pierce v. Van Dusen, 78 Fed. 699.

2 Schlemmer v. Buffalo, Rochester & Pittsburg Ry. Co., 205 U. S. 1, 57 L. ed. 681, 27 Sup. Ct. 407, rev'g 207 Pa. 198.

93 United States v. Chicago, P. & St. L. Ry. Co., 143 Fed. 353. See United States v. Great Northern Ry. Co., 145 Fed. 438; United States v. Northern Pacific Terminal Co., 144 Fed. 861.

* Schlemmer v. Buffalo, Rochester & Pittsburg Ry. Co., 205 U. S. 1, 57 91Act of Cong. March 2, 1893, § 2, L. ed. 681, 27 Sup. Ct. 407, rev'g as am'd April 1, 1896.

207 Pa. 198.