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; 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. The right of the State so to act is maintained in the States of Maine, Connecticut, Illinois, New York. Tennessee, Indiana, Texas, Mississippi, Ohio, Nebraska, New Jersey, Vermont, Wisconsin, Minnesota, and by the Supreme Court of the United States. It involves an exercise of the police power, and the inquiry is whether such requirement is a proper exercise of that power. The Courts proceed upon the theory, that property rights and liberty are to be enjoyed in subordination to the general public welfare, and all reasonable regulations for the preservation and promotion thereof, should uniformly be sustained, and that uncompensated obedience to a regulation enacted for the public safety under the police power, is not a taking or damaging, without just compensation, of private property affected with the public interests. The Supreme Court of the United States in the case of Railroad v. Chicago, 166 U. S. 226; 41 Law. Ed., 979, said: "The expenses that will be incurred by the Railroad Company in erecting gates, planking the crossing, and maintaining flagmen, in order that its road may be safely operated-if all that should be required-necessarily result from the maintenance of a public highway, under legislative sanction, and must be deemed to have been taken by the Company into account when it accepted the privileges and franchises granted by the State. Such expenses must be regarded as incidental to the exercise of the police powers of the State." The Supreme Court of this great State of Tennessee, in the case of City v. Southern R. R., 82 S. W. 213, held that an act of the Legislature empowering Cities to require Railroad Companies to construct bridges at places where their tracks crossed the public streets, being referable to the police power, applied to Railroads whose tracks were laid before the streets were opened or the City was incorporated. In that case the Railroad was constructed and in operation many years before the City of Harriman, which sought to compel the Company to construct a bridge, was founded. In the case of Illinois Central Railroad v. Swalm, 83 Miss. 631, the Court held that a Railroad could be required to place a bridge over its road, and to grade approaches thereto for the highways crossing it, though the Railroad was in operation many years before the highway was laid out. It may be noted that contrary doctrines have been advanced in the States of Kansas, Louisiana and Michigan, but against the overwhelming weight of authority. The law now seems to be generally settled, that a Railroad adopts and receives its franchises, subject to the implied right of the State or City to lay out and open new streets and highways over its tracks, and must be deemed as a matter of law, to have had these rights in contemplation at the time its charter was granted, and is bound to assume all burdens incident to new as well as existing crossings; and where it is necessary for the Railroad to condemn land for the construction of a bridge or viaduct it may do so, at its own expense, under the right of eminent domain. In the case of the American Tobacco Company v. Missouri Pacific Railway, City of St. Louis et al., supra, the City of St. Louis passed an ordinance specifically directing certain Railroads as to the kind, character and manner of the construction of a depressed road they must build beneath the surface of certain streets. The Railroads contended, that even though the City had the authority to compel them to separate their grade crossings, after having ordered the separation, the authority of the City ceased, and that they had the right to elect whether they would depress their tracks beneath the streets, or raise them above the streets. In other words, it was the insistence of the Railroads, that although the City had the right to cause the danger of grade crossings to be abolished, still the method of abolition was addressed to themselves, and that they should be left to do the work in the most inexpensive way consistent with safety. The Court held, that since the City of St. Louis under its charter was given full care and control over all streets and highways. this position of the Railroad was not well taken. In this case, the Railroads made the further point, that even conceding the City had the power to compel the separation of grades, and could in the ordinance set out how the work in a general way was to be done, if the cost and damages to them, and to manufacturing and business institutions in the vicinity, would be so great as to practically confiscate their property, and stop the expansion and future growth of their business, then, in such event, the ordinance would be unreasonable and oppressive. The Court |