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The community demands that at once and forthwith all grade crossings be abolished; that more and better cars be furnished, and at lower rates; that all railroad lines using coal be electrified, and the nuisance caused by coal smoke be abated; that patent joints be installed at all switch connections so as to eliminate noise, and that everybody employed by the Railroads who is injured, irrespective of circumstances, be compensated in person or estate. The executive officers of the Railroads to whom these modest and surprising requests are addressed, acting under the instructions of their Boards of Directors, do not accede, and are thereafter universally anathematized and execrated. The Press, as the vocal agent of the people, does not hesitate to condemn the Railroad in the most severe terms and strictures. Descriptive names are coined to designate the objects of public hatred. In St. Louis we have the “Big” and “Little Cinch," meaning thereby the principal switching company and the street railway company. “Octopus” and “Beast” are quite favorite and popular appellations applied to any particular public utility, as a water or lighting company, thought to be solvent and fairly prosperous.

Thus arises a tremendous conflict between the Railroad and the City, with the issues sharply drawn. The City tries to get back all the privileges and rights granted to the Railroad in the early ignorant and dark days when an overweening desire to obtain transportation facilities, which meant life and advancement, made it conceive that some consideration should be given for the benefits to be conferred by the Railroad. On the other hand, the Railroad endeavors to hold its privileges and rights, upon whose estimation funds has been raised to finance and consummate the enterprise, because the stockholders had invested their money upon the promises and good faith of the City, and the bond holders had purchased the securities, being deluded into the belief that a contract was binding, and that a vested right could not be destroyed under the form of law.

The Railroad, however, was in possession and enjoyed the franchises the City had voluntarily granted and importuned it to take. But the City forgot completely the attendant facts and conditions upon which the Railroad had been persuaded and induced to locate, and had spent millions of dollars in con

struction, extensions, betterments and improvements, and so permanently implanted itself in the midst of the City as not to be capable of removal without suffering death. The fact that the Railroad is so fixed and situated as not to be able to get away and escape is thoroughly appreciated by the City, in all its aspects, and hence the City does not fear that the Railroad may be driven out by adverse legislation, as would be any other kind of business concern. The interest of the Railroad is not thought about at all. The City does not consider the fact that when coal is consumed smoke will be occasioned, and that a Railroad is chartered and constructed to use coal as a generating motive force; that tracks, while obstructing the streets, must be laid there in order to discharge the corporate duties of the Railroad; that while subways and elevated structures are more sightly and less in the way, that the Railroad lacks the funds to change its whole system of operation and rebuild its terminals; that grade crossings place life and property in frequent jeopardy, but the Railroad is without the means to immediately separate the grade and obviate all danger, because it cannot raise the requisite amount of money, even though it be willing to risk bankruptcy. No, the City regards only the present, and cares nothing for the past. Is it to be wondered at that the Railroad struggles to preserve its existence, and combats ordinances which, if effective, would be intolerable ? Nor is the Railroad as a property, merely an intangible abstraction. Its stocks and bonds are held widely by many classes of people in many stations of life. When you destroy a Railroad the man of wealth is not alone affected, but oftentimes the support of the widow, the orphan and the necessitous is taken away. Accordingly the Railroad stands upon its legal rights and strives to the utmost to keep and hold what it may.

We come then, to regard just what the City can do to a Railroad with regulatory legislation and oppressive municipal laws. A City usually contends, through its mouthpiece, the Mayor, sometimes a transitory demagogue who has been elected upon a platform of distorted principles, that under its power to tax and authority to police, it can, in extreme cases, take over and operate the Railroad, when coercive means and practices have rendered the Railroad business unprofitable and impossible. The Railroad concedes the right of the City to supervise and regulate all matters respecting the public health and safety, but insists that everything should be done within reasonable bounds, and that all laws are void if confiscatory by nature or in effect.

Manifestly, within the limited scope of this paper, I cannot with particularity discuss many of the contentions which exist between the City and the Railroad, but I will say a word about a few of them, in which I, as Counsel, actively participated and endeavored to secure from the Courts a proper settlement and adjustment. The following four propositions occurred to me as important and of current interest:

First: Can a City require a Railroad to discontinue the use of coal, or other smoke producing substances, in order that smoke may be abated ?

Of course a City cannot legislate in a manner affecting the conduct of a Railroad, which under its charter is authorized to run steam engines, necessarily requiring coal for the production of steam, except in the exercise of its police power. In the case of Lawton v. Steele, 162 U. S. 133; 38 Law. Ed. 385, the Supreme Court of the United States said: The extent and limits of what is known as the police power have been a fruitful subject of discussion in the appellate courts of nearly every State in the Union. It is universally conceded to include everything essential to the public safety, health, and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance."

Undoubtedly, the law-making body, clothed as it is with this power and duty, is vested with a very wide discretion and liberty of choice in the means to be adopted to abate a nuisance. At common law smoke was not a nuisance per se but only became so under certain circumstances, when it produced a tangible injury to property, as by the discoloration of buildings, injury to vegetation, damage to household effects, and the like.

1 Wood on Nuisances, 3 Ed., Sec. 505, and cases cited;
St. Louis v. Heitzeberg Packing Co., 141 Mo. 375.

It seems now to be pretty well settled, that a State Legislature is competent to declare the emission of dense smoke in the open air of a populous City a nuisance per se, without any showing of special injury, and, that a City may echo the voice of the general law, assuming sufficient breadth of charter power to have been granted.

State v. Tower, 185 Mo., 79.

I am inclined to think, however, that a municipal ordinance would be void as unreasonable, if it constituted the mere emission of smoke a nuisance, or even dense black smoke from locomotive engines, unless the defendant were permitted to excuse itself by showing that no practical device existed whereby such an engine could be operated without emitting smoke to the extent forbidden by the ordinance.

Under its charter a Railroad may use steam, and must necessarily use coal, which in turn causes smoke. A Railroad would, therefore, seem to have the lawful right to operate its engines although smoke were emitted. Mr. Justice Harlan in the case of Mugler v. Kansas, 123 U. S. 623; 31 Law. Ed. 209, said: “It does not at all follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exertion of the police powers of the State. There are, of necessity, limits beyond which legislation cannot rightfully go. * * * * * * *

If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the Courts to so adjudge, and thereby give effect to the Constitution.”

In my opinion, under the fundamental law of the land, a Railroad may run its engines, and have them smoke, if Science cannot supply the Railroad with some ingenious appliance or apparatus whereby the smoke may be decreased or eliminated.

Second: Can a City compel a Railroad at its own cost and expense, to construct and maintain suitable crossings at intersections of streets and highways, in cases where the streets and highways have been laid out after the establishment of the Railroad?

When peremptorily commanded by a City to immediately change its grade at a street crossing, the most natural suggestion advanced by the Railroad in opposition, is that no sufficient

necessity exists for such a drastic action, which usually involves a great outlay of money. However, the Courts seem to hold with unanimity, that expedience of public necessity for the separation of grades at street crossings, is a question exclusively for the law-making body of the City to determine, and that such determination is binding upon every one, and the Courts have no voice in the matter.

Beyond controversy also, where a Railroad crosses a street it may be compelled to restore it to such a condition that its free, proper and safe use by the public will be preserved.

The troublesome question comes, when the City seeks to impose upon the Railroad, the construction and maintenance of expensive viaducts over new streets, laid out from time to time over tracks which have been operated by the Railroad for many years before, and which were built under the sanction and with the blessings of the community.

The most recent and leading case upon this subject emanates from the Supreme Court of Missouri, wherein it is said: “There can be no room for reasonable doubt, but what the City had the power and authority to compel the railway companies, at their own cost and expense, to separate the grade crossings mentioned, in the manner provided for in the ordinances before set out."

(American Tobacco Company v. The Missouri Pacific Railway Company, City of St. Louis et al., decided October term, 1912, but not yet officially reported.)

Municipal ordinances are reflections of State Statutes, and what a State may do under its police power, a City may do, if such power be delegated, and accordingly, I take it, the decisions holding a State has the power to compel a Railroad to separate its grades at street crossings, may be considered as authorities sustaining the proposition that a City may do the same. While the decisions are not fully agreed upon the question whether the State may, in the exercise of police power, compel a Railroad, without compensation, to construct and maintain suitable crossings at streets extended over their right-of-ways, after the construction of the Railroad, an examination of the books leads to the conclusion that the great weight of authority sustains the affirmative of this proposition.

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