Statement by Mr. Chief Justice FULLER:
By section 1 of an act of the legislature of Connecticut approved June 19, 1889, entitled 'An act relating to grade crossings,' (Pub. Laws Conn. 1889, c. 220, p. 134,) it was provided:
Section 2 related to alterations of highways, one-fourth of the expense of which was to be paid by the state. Appeal from any decision of the commissioners under the act was specifically provided for.
On September 2, 1890, the railroad commissioners of the state of Connecticut made an order reciting that whereas the directors of the New York & New England Railroad Company had failed to remove or apply for the removal during the year ending August 1, 1890, of any grade crossing of a highway which crossed or was crossed by their railroad, and whereas, in their opinion, said directors should have applied for the removal of the grade crossing of their road and the highway known as 'Main Street,' in the town of Bristol, and directing a hearing upon the matter, with notice to the railroad company, the town, and the owners of land adjoining that portion of the highway. The hearing was had on several days, from September 24, 1890, to February 11, 1891; and the commissioners, being of opinion that the financial condition [151 U.S. 556, 559] of the company warranted the order, and that public safety required it, ordered the crossing removed, and determined and directed the alterations, changes, and removals to be made and done, and that they be executed by the railroad company at its sole expense, including damages occasioned thereby. The company appealed from this order to the superior court of the county of Hartford, the petition for appeal setting forth various grounds therefor, which, by voluntary amendment and by direction of the court, were reduced to these:
Paragraph 1a was substituted for paragraphs 2 to 10, inclusive, struck out by the court as mere statements of evidence.
The court, upon hearing the parties,-the evidence not being preserved in the record, but it appearing that evidence was adduced by the company as to its earnings, expenses, and property,-made findings of fact that the railroad company was of sufficient ability to execute, and that the financial condition of the company warranted, the order of the commissioners for the removal of the grade crossing in question; that the crossing was among the most dangerous upon the line of the railroad; and that the safety of the public required its removal,-and affirmed the order appealed from. Thereupon the company prosecuted an appeal to the supreme court of errors of Connecticut and assigned various errors to the rulings of the superior court in amendment of the petition on appeal, and in the exclusion and admission of evidence, and afterwards amended its reasons for appeal by adding the following:
The supreme court of errors of Connecticut decided that there was no error in the judgment appealed from, (62 Conn. 527, 26 Atl. 122,) and thereupon a writ of error was allowed to this court, and errors assigned, as follows:
John J. Jennings and H. C. Robinson, for defendants.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.
The reasons of appeal to the supreme court were filed October 7, 1892, and assigned errors in the action of the superior court in dealing with various paragraphs of the petition of appeal from the order of the railway commissioners, and in the admission and exclusion of evidence, but contained nothing questioning the constitutionality of the law under which the proceedings were had until they were amended, December 17, 1892, by adding the paragraphs raising that question. This tardiness in bringing the contention forward is perhaps not to be wondered at, in view of the repeated adjudications of the supreme court of Connecticut sustaining the constitutionality of similar laws, as well as of this particular statute, and of the rulings of this court in reference to like legislation.
A motion to dismiss the writ of error for want of jurisdiction is now made, and with it is united a motion to affirm on the ground, in the language of our rule, (rule 6, par. 5,) 'that, although the record may show that this court has jurisdiction, it is manifest that the writ or appeal was taken [151 U.S. 556, 566] for delay only, or that the question on which the jurisdiction depends is so frivolous and not to need diction depends is so frivolous as not to need We agree with counsel that this court has jurisdiction, but are of opinion that the principles to be applied in its exercise are so well settled that further argument is not needed, and that, this being so, the jurisdiction may be said, under the circumstances, to rest on so narrow a foundation as to give color to the motion to dismiss, and justify the disposal of the case on the motion to affirm.
It must be admitted that the act of June 19, 1889, is directed to the extinction of grade crossings, as a menace to public safety, and that it is therefore within the exercise of the police power of the state. And, as before stated, the constitutionality of similar prior statutes, as well as of that in question, tested by the provisions of the state and federal constitutions, has been repeatedly sustained by the courts of Connecticut. Woodruff v. Catlin, 54 Conn. 277, 6 Atl. 849; Westbrook's Appeal, 57 Conn, 95, 17 Atl. 368; New York & N. E. R. Co.'s Appeal, 58 Conn. 532, 20 Atl. 670; Woodruff v. Railroad Co., 59 Conn. 63, 20 Atl. 17; State's Attorney v. Selectmen of Branford, 59 Conn. 402, 22 Atl. 336; New York & N. E. R. Co. v. City of Waterbury, 60 Conn. 1, 22 Atl. 439; City of Middletown v. New York, etc., R. Co., 62 Conn. 492, 27 Atl. 119.
In Woodruff v. Catlin, the court, speaking through Pardee, J., said, in reference to a similar statute: 'The act, in scope and purpose, concerns protection of life. Neither in intent nor fact does it increase or diminish the assets either of the city or of the railroad corporations. It is the exercise of the governmental power and duty to secure a safe highway. The legislature, having determined that the intersection of two railways with a highway in the city of Hartford at grade is a nuisance dangerous to life, in the absence of action on the part either of the city or of the railroads, may compel them, severally, to become the owners of the right to lay out new highways and new railways over such land, and in such manner as will separate the grade of the railways from that of the highway at intersection; may compel them to use the right for the accomplishment of the desired end; may determine that the [151 U.S. 556, 567] expense shall be paid by either corporation alone, or in part by both; and may enforce obedience to its judgment. That the legislature of this state has the power to do all this, for the specified purpose, and to do it through the instrumentality of a commission, it is now only necessary to state, not to argue.'
And as to this act the court, in 58 Conn. 532, 20 Atl. 670, on this company's appeal, held that grade crossings were in the nature of nuisances, which it was competent for the legislature to cause to be abated, and that it could, in its discretion, require any party responsible for the creation of the evil, in the discharge of what were in a sense governmental duties, to pay any part, or all, of the expense of such abatement.
It is likewise thoroughly established in this court that the inhibitions of the constitution of the United States upon the impairment of the obligation of contracts, or the deprivation of property without due process, or of the equal protection of the laws, by the states, are not violated by the legitimate exercise of legislative power in securing the public safety, health, and morals. The governmental power of self- protection cannot be contracted away, nor can the exercise of rights granted, nor the use of property, be withdrawn from the implied liability to governmental regulation in particulars essential to the preservation of the community from injury. Beer Co. v. Massachusetts, 97 U.S. 25 ; Fertilizing Co. v. Hyde Park, 97 U.S. 659 ; Barbier v. Connolly, 113 U.S. 27 , 5 Sup. Ct. 357; New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650 , 6 Sup. Ct. 252; Mugler v. Kansas, 123 U.S. 623 , 8 Sup. Ct. 273; Budd v. New York, 143 U.S. 517 , 12 Sup. Ct. 468. And also that 'a power reserved to the legislature to alter, amend, or repeal a charter authorizes it to make any alteration or amendment of a charter granted subject to it, which will not defeat or substantially impair the object of the grant, or any rights vested under it, and which the legislature may deem decessary to secure either that object or any public right.' Close v. Glenwood Cemetery, 107 U.S. 466, 476 , 2 S. Sup. Ct. 267; Waterworks v. Schottler, 110 U.S. 347 , 4 Sup. Ct. 48; Pennsylvania College Cases, 13 Wall. 190; Tomlinson v. Jessup, 15 Wall. 454. [151 U.S. 556, 568] The charter of this company was subject to the legislative power over it of amendment, alteration, or repeal, specifically and under general law. 5 Priv. Laws Conn. pp. 543, 547; 7 Sp. Laws Conn. p. 466; 8 Sp. Laws Conn p. 353; Sp. Laws Conn. 1881, p. 64; Gen. St. 1875, p. 278; Gen. St. 1888, 1909; New York, etc., R. Co. v.City of Waterbury, 60 Conn. 1, 22 Atl. 439.
The contention seems to be, however, that the legislature, in discharging the duty of the state to protect its citizens, has authorized by the enactment in question that to be done which is, in certain particulars, so unreasonable, and so obviously unjustified by the necessity invoked, as to bring the act within constitutional prohibitions.
The argument is that the existing grades of railroad crossings were legally established, in accordance with the then wishes of the people, but, with the increase in population, crossings formerly safe had become no longer so; that the highways were chiefly for the benefit of the local public, and it was the duty of the local municipal corporation to keep them safe; that this law applied to railroad corporations treatment never accorded to other citizens in allowing the imposition of the entire expense of change of grade, both costs and damages, irrespective of benefits, on those companies, and in that respect, and in the exemption of the town from its just share of the burden, denied to them the equal protection of the laws.
And further that the order, and therefore the law which was held to authorize it, amounted to a taking of property without due process, in that it required the removal of tracks many feet from their present location, involving the destruction of much private property, the excavation of the principal highway, and those communicating, and the building of an expensive iron bridge, all at the sole expense, including damages, of the company, without a hearing as to the extent to the several responsibilities of the company and the town, or as to the expense of the removal of this dangerous crossing, as compared with other dangerous crossings, or of the degree of the responsibility of the company for the dangers existing at this particular crossing. The objection is not that hearing was [151 U.S. 556, 569] not required and accorded, which it could not well be, in view of the protracted proceedings before the commissioners and the superior court and the review in the supreme court, but that the scope of inquiry was not as broad as the statute should have allowed, and that the particular crossing to be removed was authorized to be prejudged.
It is further objected that the supreme court had so construed the statute that, upon the issue whether the financial condition of the company warranted the order, no question of law could be raised as to the extent of the burdens which a certain amount of financial ability would warrant, and thus, in that aspect, by reason of the large amount of expenditure which might be, and as matter of fact was, in this instance, required, the obligation of the contracts made by the company with the holders of its securities was impaired. Complaint is made in this connection of the striking out by the superior court of certain paragraphs of the petition on appeal, held by that court and the supreme court to plead mere matters of evidence, and the decision by the supreme court that all the material issues were met by the findings. Those issues were stated by the court to be whether or not the company's directors had removed, or applied for the removal of, a grade crossing, as required by the statute; whether or not the grade crossing ordered to be removed by the commissioners was in fact a dangerous one, which the directors ought to have removed, or for the removal of which the directors ought to have applied; and whether or not the company's financial condition was such as to warrant the order.
And upon these premises it is urged, in addition, that the right to amend the charter of the corporation was not controlling, because that did not include the right to arbitrarily deprive the stockholders of their property, which, though held by them, for purposes of management and control, under a corporate organization created by special law, was nevertheless private property, not by virtue of the charter, but 'by force of the most fundamental and general laws of modern society, which, from their nature, necessarily protect alike and fully all legitimate acquisitions of the members of the com- [151 U.S. 556, 570] munity, no matter whether held by them as individuals or partnerships or associations or corporations.'
The supreme court of Connecticut held that the statute operated as an amendment to the charters of the railroad corporations affected by it; that, as grade crossings are in the nature of nuisances, the legislature had a right to cause them to be abated, and to require either party to pay the whole or any portion of the expense; that the statute was not unconstitutional, in authorizing the commissioners to determine their own jurisdiction, and that, besides, the right of appeal saved the railroad companies from any harm from their findings; that it was the settled policy of the state to abolish grade crossings as rapidly as could be reasonably done; and that all general laws and police regulations affecting corporations were binding upon them without their assent.
We are asked, upon the grounds above indicated, to adjudge that the highest tribunal of the state in which these proceedings were had, committed, in reaching these conclusions, errors so gross as to amount in law to a denial by the state of rights secured to the company by the constitution of the United States, or that the statute itself is void by reason of infraction of the provisions of that instrument.
But this court cannot proceed upon general ideas of the requirements of natural justice, apart from the provisions of the constitution supposed to be involved, and in respect of them we are of opinion that our interposition cannot be successfully invoked.
As observed by Mr. Justice Miller in Davidson v. New Orleans, 96 U.S. 97 , 104, the fourteenth amendment cannot be availed of 'as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in the state court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded.' To use the language of Mr. Justice Field in Railway Co. v. Humes, 115 U.S. 512, 520 , 6 S. Sup. Ct. 110, 'it is hardly necessary to say that the hardship, impolicy, or injustice of state laws is not necessarily an objection to their constitutional validity, and that the remedy for evils of that character is to be sought from state legislatures.' [151 U.S. 556, 571] The conclusions of this court have been repeatedly announced, to the effect that though railroad corporations are private corporations, as distinguished from those created for municipal and governmental purposes, their uses are public, and they are invested with the right of eminent domain, only to be exercised for public purposes; that therefore they are subject to legislative control in all respects necessary to protect the public against danger, injustice, and oppression; that the state has power to exercise this control through boards of commissioners; that there is no unjust discrimination, and no denial of the equal protection of the laws, in regulations applicable to all railroad corporations alike; nor is there necessarily such denial, nor an infringement of the obligation of contracts, in the imposition upon them, in particular instances, of the entire expense of the performance of acts required in the public interest, in the exercise of legislative discretion; nor are they thereby deprived of property without due process of law, by statutes under which the result is ascertained in a mode suited to the nature of the case, and not merely arbitrary and capricious; and that the adjudication of the highest court of a state that, in such particulars, a law enacted in the exercise of the police power of the state, is valid, will not be reversed by this court on the ground of an infraction of the constitution of the United States. Railway Co. v. Alabama, 128 U.S. 96 , 9 Sup. Ct. 28; Banking Co. v. Smith, 128 U.S. 174 , 9 Sup. Ct. 47; Railway Co. v. Beckwith, 129 U.S. 26 , 9 Sup. Ct. 207; Dent v. West Virginia, 129 U.S. 114 , 9 Sup. Ct. 231; Railroad Co. v. Gibbes, 142 U.S. 386 , 12 Sup. Ct. 255; Railroad Co. v. Emmons, 149 U.S. 364 , 13 Sup. Ct. 870.