Opinion
No. 30124.
November 21, 1932. Suggestion of Error Overruled January 2, 1933.
1. APPEAL AND ERROR.
Railroad cannot raise for first time on appeal objection that highway commission was without power to order participation in construction of underpass before acquisition of right of way across railroad's right of way.
2. APPEAL AND ERROR.
Absent clear showing by bill of exceptions to contrary, presumption is that all conditions precedent necessary to power of highway commission to order railroad's participation in construction of underpass were complied with.
3. RAILROADS.
Highway commission has jurisdiction to establish underpass at point different from that at which existing highway crosses railroad (Code 1930, section 5007).
4. COMMERCE. Railroads.
State may lawfully require interstate railroad to abolish at own expense highway grade crossings, without regard to financial ability, if reasonably required by public safety (Constitution, article 1, section 8, clause 3; Interstate Commerce Act and Transportation Act [See 49 U.S.C.A., section 1 et seq.]; Constitution 1890, sections 14, 17).
5. RAILROADS.
Evidence held to show that curves made existing highway crossing railroad so dangerous as to require underpass in interest of public safety.
APPEAL from circuit court of Hinds county. HON.W.H. POTTER, Judge.
Bozeman Cameron, of Meridian, and R.W. Heidelberg, of Hattiesburg, for appellant.
The Highway Commission proceeded in this matter under section 5007 of the Code of 1930, being a section of Chapter 47 of the Laws of 1930.
The Supreme Court of the United States has sustained the right of public bodies to order the elimination of dangerous public crossings in a long line of decisions.
Erie Railroad Company v. Board of Public Utilities et al., 254 U.S. 394, 65 L.Ed. 322.
This order would not deprive the Railroad Company of its constitutional rights as claimed by it, if there were a condition showing that this crossing were dangerous to public safety within the language of the statute, interpreted in the light of judicial decisions touching such requirements.
There was no showing whatever of any conditions at the crossing which would warrant the assumption that it was dangerous to the public safety. Under the commission's conception of the law, the conclusion that the crossing was dangerous could be bottomed on the fact that there were two right angle turns in the road (off of the right of way of the railroad) occasioned by the presence of the railroad track. A careful reading of the record will show that no witness in the case testified to any danger of a collision between a railroad train and a person using the crossing, except, of course, such danger as would attend every crossing, from the very nature of the case.
If this crossing is not a reasonably safe crossing, it would be impossible to construct one. No single element of hazard was pointed out on which one might base the apprehension that the public would be in danger in crossing the railroad track at that point.
The very fact that the Highway Commission is given the power to remove the hazard by separating the grades shows that the danger aimed at is that arising from a collision at the grade crossing. The evil sought to be remedied by this statute is not concerned with what happens off the railroad right of way.
To require the Railroad Company to protect a motorist from the hazard of negotiating a sharp turn in the road, off of the right of way of the railroad would be to deprive the railroad of its property without due process of law, and to deny it the equal protection of the law, and to deny it the other constitutional rights claimed in the assignment of errors.
Orders requiring separation of grades at crossing must be bottomed in justice and sound reason.
M.K. T. Company v. Oklahoma, 271 U.S. 303, 70 L.Ed. 957; Norfolk Western R.R. Co. v. Public Service Commission, 265 U.S. 70, 68 L.Ed. 904; Wisconsin v. Jacobson, 179 U.S. 287, 45 L.Ed. 194; Miss. R.R. Com. v. M. O.R.R. Co., 244 U.S. 388, 61 L.Ed. 1216; Washington, etc., R.R. Co. v. Fairchild, 224 U.S. 510, 56 L.Ed. 863.
If the danger is clear, reasonable care must be taken to eliminate it and the police power may be exerted to that end. But it becomes the duty of the court, where the cost is questioned, to determine whether it is within reasonable limits.
Lehigh Valley, etc., Co. v. Public Utilities Commissioners, 278 U.S. 24, 73 L.Ed. 161; M.P.R. Co. v. Nebraska, 164 U.S. 403, 41 L.Ed. 489; M.P.R.R. Co. v. Neb., 217 U.S. 196, 54 L.Ed. 727; Great Northern R.R. Co. v. Minnesota, 238 U.S. 340, 59 L.Ed. 1337; Great Northern R.R. Co. v. Kahill, 253 U.S. 71, 64 L.Ed. 787; A.T. S.F.R.R. Co. et al. v. R. Com. et al., 283 U.S. 380, 75 L.Ed. 1129.
The order must be granted if at all, as safety measure; (b) there must be a finding that the crossing is dangerous to the public, the litigants, or their property; (c) there must be some unusual condition surrounding the crossing, in other words, it must be different from "surface farm crossings in general;" (d) the order cannot be based on the "convenience" of those seeking to be served by the grade elimination.
Chicago Ry. Co. v. Holmberg, 115 Neb. 727, 214 N.W. 746; 282 U.S. 162, 75 L.Ed. 270.
The statute does not create the right to open up an entirely new crossing.
The order of the commission cannot stand without the prior acquisition of right of way.
Illinois Central R.R. Co. v. State, 94 Miss. 759, 48 So. 561; Gulf Ship Island Railroad Company v. Collins, 157 Miss. 213, 127 So. 770; M.K. T. Ry. Co. v. Oklahoma, 271 U.S. 303, 70 L.Ed. 957.
Objection to removal of crossing not raised below not valid.
The citation did not indicate that any effort would be made to establish an entirely new crossing.
The return did specifically rely on sections 14 and 17 of the Mississippi constitution and Amendments 5 and 14 to the Constitution of the United States. All of these forbid the taking of private property without advance compensation therefor and forbid the taking of private property without due process of law. Section 17 of the constitution of Mississippi specifically requires the making of due compensation in a manner to be prescribed by law.
No waiver of this point was effected by failure to object to the introduction of the plans. The Highway Commission had a right to submit its proposals and they were properly a part of the record.
(c) It will be seen from a reading of this assignment of errors that the point was made a number of times that it was improper for the commission to hold that the crossing might be eliminated by carrying the road under the railroad at a point three-fourths of a mile removed.
(d) No showing before the commission that right to cross the right of way of the railroad had been acquired.
The burden rested on the state to establish its conditions precedent to the order entered by the commission.
Opportunity was not afforded for making the point that the right of way had not been acquired by condemnation, or otherwise.
If the citation served on the Railroad Company had indicated in any way that it was the purpose of the commission to establish a new crossing at another place, it might be said that the protest filed by the railroad should have addressed itself to the objections it had to the establishment of the new crossing. The citation did not do that, however, and the railroad had a right to assume that the commission would proceed to order the existing grade crossing abolished and a new one established at the same place.
What the commission has done is really to order an entirely new crossing for an entirely new highway, bearing no relationship to the old, except in number. The commission may have this right by some other statute, or by common law, but this right is certainly not given by the section under which the commission was proceeding.
E.R. Holmes, Jr., Assistant Attorney-General, for appellee.
Generally speaking, it is clear that public bodies, boards, or commissions when empowered by statute, have a right, under the police power to order the elimination of grade crossings, which they can reasonably say are dangerous to the public safety.
Erie Railroad Company et al. v. Board of Public Utilities, 254 U.S. 394, 65 L.Ed. 322.
If we could see that the evidence plainly did not warrant a finding that the particular crossings were dangerous, there might be room for the argument that the order was so unreasonable as to be void. The number of accidents shown was small and if we went upon that alone we well might hesitate. But the situation is one that always is dangerous. The board must be supposed to have known the locality and to have had an advantage similar to that of a judge who sees and hears the witnesses. The courts of the state have confirmed its judgment. If they were reasonably warranted in their conclusion, their judgment must stand.
Erie R.R. Co. v. Board of Public Utilities, 254 U.S. 394, 65 L.Ed. 322.
Grade crossings call for a necessary adjustment of two conflicting interests — that of the public using the streets, and that of the railroads and the public using them. Being places to which the public is invited and that is necessarily frequent, the state, in the care of which this interest is, and from which ultimately the railroads derive their right to occupy the land, has a constitutional right to insist that they shall not be made dangerous to the public, whatever may be the costs to the parties introducing the danger.
Erie R.R. Co. v. Board of Public Utilities, 254 U.S. 394, 65 L.Ed. 322.
The statutes authorizing the Highway Commission to proceed, authorizes grade crossing elimination on either danger to the public safety or the impeding of traffic.
There was no objection to the location of the proposed underpass, or the plans for it, either on the hearing before the commission or upon appeal to the circuit court, the raising of such objection now is untimely and will not be considered by this court.
No objection was made at any time in the court below on the question of obtaining a right of way across the railroad. No testimony was offered as to whether a right of way had or had not been obtained.
It is well settled that railroad corporations may be required, at their own expense, not only to abolish existing grade crossings, but also to build and maintain suitable bridges or viaducts to carry highways newly laid out over their tracks, or to carry their tracks over such highways.
Missouri P.R. Co. v. Omaha, 235 U.S. 121, 59 L.Ed. 157; Northern P.R. Co. v. Puget Sound, etc., Co., 250 U.S. 332, 63 L.Ed. 1013.
It is elementary that for the safety and convenience of the public, the state either directly or through its municipalities, may reasonably regulate the construction and use of highways where they cross railroads. The legitimate exertion of police power to that end does not violate the constitutional rights of railroad companies. They may be required at their own expense to construct bridges or viaducts when ever the elimination of grade-crossings reasonably may be required, whether constructed before or after the building of the railroad. And such costs are not included in the just compensation which the railroad companies are entitled to receive.
Missouri K. T.R.R. Co. v. Oklahoma, 271 U.S. 303, 70 L.Ed. 957.
The order of the Highway Commission finding that the grade crossing in question was dangerous and should be eliminated, was reasonable in every particular not only from the standpoint of public safety, but also from the standpoint of economical construction and the carrying out of a well formulated plan and should be up-held and affirmed.
Argued orally by Ben F. Cameron, for appellant, and by E.R. Holmes, Jr., for the state.
This appeal involves the validity of an order entered by the Mississippi highway commission eliminating a grade crossing and compelling the construction of an underpass partially at the expense of the New Orleans Northeastern Railroad Company. The case was appealed from the order of the state highway commission by a bill of exceptions to the circuit court, and from a judgment of that court sustaining the order of the highway commission, the case is appealed to this court.
The bill of exceptions starts off by reciting that at a term of the state highway commission begun and held at the office of said commission, at which Hon. Brown Williams, Hon. J.F. Thames, and Hon. F.L. Linker, highway commissioners, and J.B. Burns, Jr., secretary, were present, the attorney for the commission offered and filed an order of the state highway commission passed at a former meeting of said commission in words and figures as follows: "On motion of Mr. Thames and second of Mr. Linker, the attorney general of the state of Mississippi is hereby authorized to institute necessary proceedings against the New Orleans and Northeastern Railroad so as to force" it "to participate in the construction of an underpass near Picayune, Mississippi, on F.A.P. 116, Pearl River county. Reference is here made to Minute Book 4, page 1020." The secretary of the highway commission issued a citation which was served on the railroad company.
The railroad company filed a protest against said requirement, challenging the jurisdiction of the highway commission, saying that the proposed order was prohibited under the laws of the United States, particularly the Commerce Clause of the United States Constitution (art. 1, sec. 8, cl. 3), approved February 4, 1887, and the Transportation Act, approved February 28, 1920 (see 49 U.S.C.A., sec. 1 et seq.), and under the Constitution of Mississippi, and that any constitutional or statutory provision of the laws of Mississippi purporting to grant such jurisdiction to the state highway commission was pro tanto illegal, null, and void, as in contravention of the Commerce Clause and the Transportation Act of the Federal Congress. The protest then stated that the grade crossing was not dangerous and did not unreasonably impede traffic, and that an order to construct an underpass would amount to a taking or damaging of the railroad's property for public use without due compensation being first made therefor, in violation of sections 14 and 17 of the Constitution of Mississippi.
It will be seen from the objection to this order that no specific objection was mentioned as to the acquirement of the right of way across the railroad right of way, nor was it stated that the highway commission had not acquired a right of way across the railroad company's property.
On the hearing, evidence was taken, and it appeared that Highway No. 11 ran south parallel with the railroad to a certain crossing, and then turned almost at a right angle, and again turned south on the opposite side of the railroad and proceeded practically parallel with the railroad.
The crossing made two sharp curves, one a sixty-degree curve, and the other a forty-degree curve. When the right of way was reached in traveling the highway, a party could see some distance in either direction; the particular feet being given in the record. It was shown by the engineer of the highway department that owing to the curves made in this crossing, the attention of a motor vehicle driver would be necessarily on the operation of his car across this crossing, and that he could not see the approach of a train in one direction without practically turning his head around, and thus diverting his attention from the car he was operating.
It was shown in the evidence that at this point trains traveling on the railroad were frequently operated at high speed, fifty miles per hour, and that it would take only a few seconds for a train, visible at this point, to reach such crossing.
The highway engineer and others testified that it was a dangerous crossing; and witnesses for the railroad company testified that it was as safe a crossing as any others.
The project for the underpass, however, did not involve the making of an underpass at this crossing, but involved changing the highway from its present location to a point north of this crossing where an underpass could be constructed through an embankment over which the railroad track would run, thus eliminating a grade crossing, and after passing through this proposed underpass, the highway would proceed practically parallel with the railroad to a point opposite the existing crossing, and thence south in the direction of New Orleans.
It was shown that the highway commission had acquired a right of way for the new part of the highway to the proposed underpass. It inferentially appears that a right of way across the railroad's right of way had not been acquired, but no point was raised at the hearing of this failure, if it was a failure, to acquire a right of way across the railroad's right of way.
It does not appear from the bill of exceptions whether or not the right of way had been acquired across the railroad's right of way previous to the order of the highway commission above recited. If it was a fact, and was pertinent to the inquires, we think this point should have been made at the hearing before the highway commission.
One of the grounds for reversal urged here, but not raised before the highway commission, nor in the circuit court, is that the commission did not have the power to order an underpass until the right of way had been acquired across the railroad's right of way, and the road duly opened. The appellant relied on the case of I.C.R.R. Co. v. State, 94 Miss. 759, 48 So. 561.
We do not think the appellant is in a position to raise this point here. It does not appear from the bill of exceptions that the point was raised in the proceeding before the highway commission, nor in the circuit court. We must presume, in the absence of a clear showing to the contrary, that all precedent steps necessary to the conferring of power upon the highway commission had been taken. If in fact the right of way for the highway over the railroad's right of way had not been acquired, and it had been seasonably raised, the highway commission would, no doubt, have taken the necessary steps to acquire such right of way over the railroad's right of way; and the appellant will not be permitted to rely upon questions not then raised. It was the duty of the appellant, if it desired to contest the order upon this point, to have made objection during the progress of the hearing. Not having done so, it will be held to have waived such objection.
It is contended that section 5007, Code 1930, does not confer upon the highway commission the power to order an underpass or overpass at any other point than that which existed formerly. In other words, that the commission did not have the right to order an underpass where it is proposed to be constructed, but that the commission was confined to construct an underpass at the crossing as it then existed.
We think this contention is without merit. The proposition involved — and both parties were fully heard upon it — is the necessity of an underpass, and the change of the public highway so as to better conserve the public safety.
It is not necessary, in order to eliminate a crossing, that an overpass or underpass, as the case may be, shall be constructed at the very point where the existing crossing is. The commissioners must be given some latitude in constructing a great public highway for inter-county and interstate traffic, and leave to change the location of any highway so as to make a shorter road, or to straighten the road, thus making a more practical and worthy route of travel.
We think, therefore, that the highway commission had jurisdiction to establish an underpass at a different point from that at which the highway at present crosses the railroad.
We think the other questions presented are settled adversely to the contentions of the appellant in the case of Erie R. Co. v. Bd. Public Utility Com'rs, 254 U.S. 394, 41 S.Ct. 169, 171, 65 L.Ed. 322, 331. That case holds that a state may, consistently with the due process of law, commerce and contract clauses of the Federal Constitution, require a railroad corporation engaged in interstate commerce to abolish, at its own expense, highway grade crossings, including those at streets, whatever the cost and without regard to financial ability, if it can be reasonably said that the public safety required the change.
The evidence, we think, is sufficient to show that the crossing, on account of the curves, is a dangerous crossing.
It is true that the appellant showed losses in operation. This situation of the railroads and their losses, owing to motor vehicles upon improved highways, is a matter of grave concern for the future of the railroads; but it is necessary that they be operated with regard to the public safety, and the elimination of dangerous situations may save the railroads considerable sums in damage suits, resulting from accidents at crossings.
In the case before us, a single personal injury suit resulting in the death of persons might cost the railroad more than the assessment against it for the construction of the underpass.
In the case of Erie v. Bd. of Public Utility Com'rs, supra, the court observed that: "If we could see that the evidence plainly did not warrant a finding that the particular crossings were dangerous, there might be room for the argument that the order was so unreasonable as to be void. The number of accidents shown was small, and if we went upon that alone, we well might hesitate. But the situation is one that always is dangerous. The Board must be supposed to have known the locality, and to have had an advantage similar to that of a judge who sees and hears the witnesses."
After giving due consideration to the whole case, we are of the opinion that there is no reversible error, and that the judgment must be affirmed.
Affirmed.