« ΠροηγούμενηΣυνέχεια »
Stat. 726, amending, by section 2 thereof, section 237 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1156 [Comp. St. § 1214]). Since the passage of the amendment, cases brought within its effect, of the character of this one, cannot be brought here by writ of error unless there is drawn in question the validity of a statute of or an authority exercised under the state on the ground of their being repugnant to the federal Constitution, treaties, or laws. Other cases of alleged denial of federal rights, as specified in the statate, can be reviewed in this court only upon writ of certiorari.
enforce such regulations as are reasonably nec essary to secure public safety; such power being inalienable, even by express grant, and its legitimate exercise contravening neither the contract clause of the Constitution nor the due process clause of the Fourteenth Amendment, but otherwise, if the regulation be plainly unreasonable and arbitrary.
2. CONSTITUTIONAL LAW 134-DUE PRO-
Though railroad track was put in street by virtue of ordinance, and the ordinance became a contract, and the right granted became a vested property right, such contract and right is subject to the fair exercise by the state, or the city as its agent, of the power to adopt and
An examination of the record in the case and the opinion of the Supreme Judicial Court, shows that neither the validity of the statute, nor the validity of any authority exercised under the state was drawn in question. The case was decided on the view which the Supreme Judicial Court entertained of the character of the property involved, and neither in the record nor in the opinion of the court does it appear that any question was raised or decided which involved the validity of the statute of the state, or of an authority exercised under the state, on the ground of their repugnancy to the Constitution, treaties, or laws of the United States. It follows that the only right of review in this court of the decree of the Supreme Judicial Court of Massachusetts was by writ of certiorari. It is only necessary to refer to our decisions construing the amendment of September 6, 1916. Philadelphia & Reading Coal & Iron Co. v. Gilbert, 245 U. S. 162, 38 Sup. Ct. 58, 62 L. Ed. 221; Ireland v. Woods, 246 U. S. 323, 38 Sup. Ct. 319, 62 L. Ed. 745; Stadelman v. Miner, 246 U. S. 544, 38 Sup. Ct. 359, 62 L. Ed. 875; Northern Pacific | Railway Co. v. Solum, 247 U. S. 477, 481, 38 Sup. Ct. 550, 62 L. Ed. 1221.
The writ of error must be dismissed for in error. want of jurisdiction.
Ordinance of Denver requiring removal of so much of a railroad side track as lies within an intersection of two streets, just opposite entrance of Union Depot, practically in gateway of city, held not plainly unreasonable and arbitrary, so as to be obnoxious to obligation of contract or due process clause.
3. COMMERCE 58-STATE POLICE POWERRAILROAD IN STREET.
Ordinance requiring removal of railroad track from crossing of streets does not offend against commerce clause of Constitution; it making no discrimination against interstate commerce, and not impeding its movement in regular course, and affecting it only incidentally and indirectly.
In Error to the Supreme Court of the State of Colorado.
In Error to the District Court of the City and County of Denver, State of Colorado.
Action by the Denver & Rio Grande Railroad Company against the City and County of Denver and others. Judgment for plaintiff was reversed by the Supreme Court of Colorado (167 Pac. 969, L. R. A. 1918D, 659), and plaintiff brings error.
Mr. E. N. Clark, of Denver, Colo., for plaintiff in error.
Messrs. James A. Marsh and Norton Montgomery, both of Denver, Colo., for defendants
*Mr. Justice VAN DEVANTER delivered the opinion of the Court.
This is a suit to enjoin the enforcement of an ordinance directing the removal of a
(250 U. S. 241)
DENVER & R. G. R. CO. v. CITY AND railroad track from the intersection of two
COUNTY OF DENVER et al.
streets in Denver. On the hearing the plain-
(Submitted April 23, 1919. Decided June 2, to dismiss the complaint (City and County 1919.)
Nos. 322, 323.
of Denver v. Denver & Rio Grande R. Co.
1. CONSTITUTIONAL LAW 134, 292-DUE
The ordinance is assailed as contravening the contract and commerce clauses of the Constitution and the due process clause of the Fourteenth Amendment.
In 1881 a union depot with appurtenant tracks was established in Denver, the streets and alleys within the grounds thus occupied
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
came a vested property right. But, as this court often has held, such contracts and rights are held subject to the fair exercise by the state, or the municipality as its agent, of the power to adopt and enforce such regulations as are reasonably necessary to secure the public safety; for this
being vacated by the city, and since then [of that period, and that the ordinance beall railroads entering the city have used came a contract and the right granted bethis depot and its tracks. Wynkoop street is outside the depot grounds and extends east and west along their south line. The depot faces that street and is but a short distance from it. On the other side of the depot are the depot tracks. These connect on the west with several railroad yards, including that of the Rio Grande Company, power "is inalienable even by express and on the east with other railroad yards, grant," and its legitimate exertion contraincluding that of the Union Pacific Company. venes neither the contract clause of the Wynkoop street is intersected just opposite Constitution nor the due process clause of the entrance to the depot by Seventeenth the Fourteenth Amendment. Atlantic Coast street, which extends northward through the Line R. R. Co. v. Goldsboro, 232 U. S. 548, city and is one of its main thoroughfares. 558, 34 Sup. Ct. 364, 58 L. Ed. 721; Chicago Persons and vehicles approaching or leav- & Alton R. R. Co. v. Tranbarger, 238 U. S. ing the depot pass over this intersection; 67, 76, 35 Sup. Ct. 678, 59 L. Ed. 1204. Of the number doing so each day being approx- course, all regulations of this class are subimately 2,000. ject to judicial scrutiny, and where they are found to be plainly unreasonable and arbitrary must be pronounced invalid, as transcending that power and falling within the condemnation of one or both, as the case may be, of those constitutional restrictions.
*The plaintiff, the Rio Grande Company, has a track in Wynkoop street from Nineteenth street to Fourteenth street. At its eastern terminus-near Nineteenth streetthis track meets a track of the Union Pacific Company which is connected with the yard of that company, and at Fourteenth street it curves and leads to the Rio Grande Company's yard. Originally it was part of the Rio Grande Company's main line, but since 1881, when the Union Depot was established, it has been used only as a side track in serving industries on the south side of Wynkoop street.
The ordinance assailed directs the removal of so much of this track as lies within the intersection of Wynkoop and Seventeenth streets, that is to say, the portion over which persons and vehicles pass in moving to and from the Union Depot; and a preamble recites that the use of that portion of the track impedes public travel, affects the safety of persons approaching or leaving the Union Depot, and is no longer essential to the Rio Grande Company.
The scope of the power and instances of its application are shown in the decisions sustaining regulations (a) requiring railroad companies at their own expense to abrogate grade crossings by elevating or depressing their tracks and putting in bridges or viaducts at public crossings, Northern Pacific R. R. Co. v. Duluth, 208 U. S. 583, 28 Sup. Ct. 341, 52 L. Ed. 630; Chicago, Milwaukee & St. Paul Ry. Co. v. Minneapolis, 232 U. S. 430, 34 Sup. Ct. 400, 58 L. Ed. 671; Missouri Pacific Ry. Co. v. Omaha, 235 U. S. 121, 35 Sup. Ct. 82, 59 L. Ed. 157; (b) requiring a railroad company at its own cost to change the location of a track and also to elevate it as a means of making travel on a highway safe, New York, etc., R. R. Co. v. Bristol, 151 U. S. 556, 14 Sup. Ct. 437, 38 L. Ed. 269; (c) prohibiting a railroad company from laying more than a single track in a narrow busy street although its franchise authorized it to lay a double track there, Baltimore v. Baltimore Trust Co., 166 U. S. 673, 17 Sup. Ct. 696, 41 L. Ed. 1160; and (d) requiring a gas company whose mains and pipes were laid beneath the surface of a street under an existing franchise to shift them to another *location at its own cost to make room for a public drainage system, New Orleans Gas Co. v. Drainage Commission, 197 U. S. 453, 25 Sup. Ct. 471, 49 L. Ed. 831.
The Union Pacific Company has a track in the same intersection which the ordinance deals with in the same way, but that company apparently is not complaining.
If the ordinance is enforced, the Rio Grande Company can reach the industries on its track in Wynkoop street, between Seventeenth and Nineteenth streets, only through the tracks of the Union Depot and the Union Pacific. Because of this it will be subjected to some expense and delay not heretofore attending that service, and it also will be prevented from switching cars  Is the ordinance here in question plainto and from those industries for other rail- ly unreasonable and arbitrary? That there roads and thereby will lose some revenue. is occasion for some real regulation is clear. But, according to the record, the loss in ex-The crossing is practically in the gateway pense and otherwise incident to these disad- to the city. Persons in large numbers pass vantages will be relatively small. over it every day-many of them unae quainted with the surroundings. Moving engines and cars to and fro over such a
The track in Wynkoop street has been there since 1871, and we shall assume, as did the Supreme Court of the state, that it place makes it one of danger. Any one of was put there in virtue of some ordinance | several forms of corrective regulation might
To illustrate: The city might | 1908, § 8 (Comp. St. § 9935), which, after making dumping within certain limits of New York Harbor illegal, and declaring penalties and punishment for persons connected with violating any provision of the act shall be liable such dumping, provides that any vessel used in to the pecuniary penalties imposed thereby, and may be proceeded against summarily by way of libel, conviction and fining of the persons is not a condition precedent to maintenance of the libel.
call on the railroad company to construct and maintain a viaduct over the crossing or a tunnel under it, or might lay on the company the duty of maintaining watchmen or flagmen at the crossing. What it actually does by the ordinance is to call on the company to remove the track from the crossing and avail itself of other accessible and fairly convenient means of getting cars to and from its track east of the crossing. No doubt in this the company will experience some disadvantages, but they will be far less burdensome than would be the construction and maintenance of a viaduct or tunnel, and not much more so than would be the keeping of watchmen or flagmen at the crossing.
The situation is unusual and the ordinance deals with it in a rather practical way. Giving effect to all that appears, we are unable to say that what is required is plainly unreasonable and arbitrary.
Counsel for the company manifest some concern lest the rates for switching cars to and from its track east of the crossing may not be satisfactory, but there hardly can be any real trouble along that line. The rates will be subject to investigation and supervision by public commissions just as are other railroad rates, and possible differences over them will be susceptible of ready adjustment.
 The objection that the ordinance offends against the commerce clause of the Constitution is not tenable. The ordinance makes no discrimination against interstate commerce, will not impede its movement in regular course, and will affect it only incidentally and indirectly. South Covington Ry. Co. v. Covington, 235 U. S. 537, 540, 35 Sup. Ct. 158, 59 L. Ed. 350, L. R. A. 1915F, 792; Sligh v. Kirkwood, 237 U. S. 52, 58, 60, 35 Sup. Ct. 501, 59 L. Ed. 835. The case of Kansas City Southern Ry. Co. v. Kaw Valley Drainage District, 233 U. S. 75, 34 Sup. Ct. 564, 58 L. Ed. 857, obviously is not to the contrary.
(250 U. S. 269)
THE 6 S.
P. SANFORD ROSS, Inc., v. UNITED
2. ADMIRALTY 6-ILLEGAL DUMPING IN
Act June 29, 1888, § 4 (Comp. St. § 9937),
An unliquidated fine may be assessed in admiralty.
23-LIBEL FOR PENALTIES. Jurisdiction of libel against vessel for penalties for illegal dumping in New York Harbor is conferred on a court of admiralty by Act June 29, 1888, § 4 (Comp. St. § 9937), even if not by Judicial Code, § 24, subd. 9 (Comp. St. § 991 ), as to enforcement of penalty or
forfeiture under a law of the United States.
Appeal from the District Court of the United States for the Southern District of New York.
Libel by the United States against the scow 6 S; P. Sanford Ross, Incorporated, claimant. Decree for penalty (247 Fed. 348), and claimant appeals. Affirmed.
*Mr. A. Leo Everett, of New York City, for appellant.
Mr. Assistant Attorney General Brown, for the United States.
Mr. Justice PITNEY delivered the opinion of the Court.
This was a libel in rem, brought against a scow under the Act of June 29, 1888, c. 496, 25 Stat. 209 (Comp. St. §§ 9933-9938), as amended by Act Aug. 18, 1894, c. 299, § 3, 28 Stat. 360 (Comp. St. § 9935), and Act May 28, 1908, c. 212, § 8, 35 Stat. 426 (Comp. St. § 9935), for illegal dumping in New York Harbor. Appellant, as claimant of the scow, denied the jurisdiction of the court to enter
(Argued April 24, 1919. Decided June 2, 1919.) tain the suit: First, on the ground that by
1. NAVIGABLE WATERS 26(1⁄2) — ILLEGAL
the statute the vessel was made liable only for such penalties as might be imposed in criminal proceedings upon the persons responsible for the illegal act, and there had Under Act June 29, 1888, §§ 1, 2, 4 (Comp. been in this case no conviction of such perSt. §§ 9933, 9934, 9937), as amended by Act sons or assessment of penalties; and, secondAug. 18, 1894, c. 299, § 3, and Act May 28, | ly, that the assessment of such penalties was
DUMPING-LIBEL AGAINST VESSEL.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
not within the admiralty or maritime jurisdiction of the court. A motion to dismiss on this ground was overruled, the court gave judgment against the scow (247 Fed. 348), and the claimant appeals to this court upon the jurisdictional question under section 238, Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1157 [Comp. St. § 1215]).
The statute forbids by section 1 the deposit of mud, etc., in the tidal waters of New York Harbor except within limits prescribed by the supervisor, and provides that
"Every such act is made a misdemeanor, and every person engaged in or who shall aid, abet, authorize, or instigate a violation of this section, shall, upon conviction. *be punishable by fine or imprisonment, or both, such fine to be not less than two hundred and fifty dollars nor more than two thousand five hundred dollars, and the imprisonment to be not less than thirty days nor more than one year, either or both united, as the judge before whom conviction
is obtained shall decide."
[1, 2] The principal contention of appellant is that the purpose of the statute was to make the vessel responsible only for such pecuniary penalties as might be assessed against the offending persons in criminal proceedings, and hence that the conviction and fining of such persons is a condition precedent to the maintenance of a suit against the vessel. In support of this The Strathairly, 124 U. S. 558, 8 Sup. Ct. 609, 31 L. Ed. 580, is cited. That was a suit brought under sections 4252, 4253, 4255, 4266, and 4270, Rev. St., which contained provisions respecting the carriage of passengers on vessels entering or leaving ports of the United States, and prescribed fines and penalties against the master and owner of the vessel violating such provisions. Section 4270 provided:
"The amount of the several penalties imposed by the foregoing provisions regulating the carriage of passengers in merchant vessels shall be and such vessel shall be libeled therefor in any liens on the vessel violating those provisions, Circuit or District Court of the United States where such vessel shall arrive."
This court said (124 U. S. 580, 8 Sup. Ct. 609, 31 L. Ed. 580) that the penalty recoverable against the vessel, and by section 4270 made a lien upon it, was not an additional penalty, but the same which by section 4253 was to be adjudged against the master in the criminal prosecution.
We concur with the District Judge in the view that the case is distinguishable from the present one because of the substantial difference in the applicable provisions of law. The act of Congress here in question imposes a direct liability upon the vessel for the pecuniary penalties prescribed, and declares that it may be proceeded against summarily by libel in any District Court of the United States having jurisdiction thereof. This precludes the idea that the proceeding by libel is to be deferred to await the possibly slow course of criminal proceedings against the persons individually responsible. It treats the offending vessel as a guilty thing, upon the familiar principle of the maritime law, and permits a proceeding against her in any court of admiralty "having jurisdiction thereof" meaning any court within whose jurisdiction she may be found.
Libels of this character, without previous conviction of the responsible persons, have been entertained under this act from the time of its enactment, and dealt with upon the merits, without question as to the jurisdiction until now. United States v. The Sadie (C. C.) 41 Fed. 396; The G. L. Garlic (D. C.) 45 Fed. 380; The Anjer Head (D. C.) 46 Fed. 664; The Bombay (D. C.) 46 Fed. 665; The Emperor (D. C.) 49 Fed. 751; United States v. Various Tugs and Scows (D. C). 225 Fed. 505; The J. Rich Steers, 228 Fed. 319, 142 C. C. A. 611; The Columbia (C. C. A.) 255 Fed. 515.
[3, 4] There is no difficulty, on constitutional or other grounds, about assessing an unliquidated fine in the admiralty; and, if it be not a proceeding for enforcement of a penalty or forfeiture incurred under a law of the United States within the meaning of the ninth subdivision of section 24, Judicial Code (Comp. St. § 991 ), the act of 1888 itself confers jurisdiction. Judgment affirmed.
(250 U. S. 256)
(Argued Oct. 5 and 8, 1917. Decided June 2, 1919.)
2. COURTS 263-FEDERAL COURTS-FEDERAL AND NONFEDERAL QUESTIONS.
Even without diversity of citizenship, if a bill in federal court presents a substantial controversy under the Constitution of the United States, and the requisite amount is involved, the jurisdiction extends to the determination of all questions, including questions of state law, and irrespective of the disposition made of the federal questions.
The court on appeal in suit to enjoin enforcement of ordinance fixing gas rates held, having regard for the entire period under investigation, unable to say that the master err
1. EQUITY 447(1) BILL OF REVIEW-ed in holding that ordinance was not shown to LEAVE TO FILE-GROUNDS FOR DENIAL.
have been confiscatory.
6. DISMISSAL AND NONSUIT 75-DISMISSAL WITHOUT PREJUDICE.
Complainant's application to Supreme Court for leave to file bill of review in trial court in suit to enjoin as confiscatory enforcement of ordinance reducing complainant's gas rates from $1.20 to $1, application alleging test, by putting in effect the $1 rate, pending hearing on master's report, showed error in master's finding that increase of consumption, would follow reduction in price, will be denied, rate having been put in effect under stipulation that company's act should not be used to influence action of court, whereby defendant was relieved of observing its effect and preparing to meet inferences therefrom; complainant having delayed a practical test for years after it had notice of Supreme Court's view of importance of practical test of prescribed rates before attacking them by suit, and the master's finding as to net return that would have been earned under prescribed rates being vitiated by inclusion as an operating expense of a large invalid occupation tax.
3. COURTS 52-TRANSFER OF JURISDICTION -REVERSAL IN PART-REMAND-FINAL DECREE BELOW.
So much of decree of Circuit Court, in suit attacking gas rate ordinance and occupation tax ordinance, as adjudged occupation tax ordinance void and enjoined its enforcement, having been untouched on appeal by complainant to Supreme Court from the part of the decree dismissing bill as to rate ordinance, is to be considered part of the final decree of District Court, after reversal by Supreme Court and remand to District Court; the District Court's decree, while saying nothing on the subject of the occupation tax ordinance, not modifying the effect of the former decree thereon.
company having no monopoly, and its profits
4. GAS 14(2) - RATES-ORDINANCE-REASONABLENESS-INCOME.
5. APPEAL AND ERROR 1018 REVIEWFINDINGS.
Finding that no gas rate prescribed by ordinance yielding as much as 6 per cent. on invested capital can be regarded as confiscatory cannot be approved in view of undisputed evidence that 8 per cent. was the lowest rate sought and generally obtained on investments in banking, merchandising, and other business in the vicinity, 7 per cent. being the legal rate of interest in the state, and the complainant gas
Decree dismissing bill to enjoin, as confiscatory, enforcement of ordinance fixing gas rates should be without prejudice to bringing new action, if as result of practical test of prescribed rate, or change in conditions, increased of return on capital, it appear that the rate has cost of labor and materials, and increased rates become confiscatory.
Appeal from the District Court of the United States for the District of Nebraska.
Suit by the Lincoln Gas & Electric Light Company against the City of Lincoln and others. From an adverse decree, complainant appeals. Modified and affirmed.
*Messrs. Robert Burns, of New York City, E. C. Strode, of Lincoln, Neb., and Charles A. Frueauff, of New York City, for appellant.
Messrs. W. M. Morning, C. Petrus Peterson, and G. W. Berge, all of Lincoln, Neb., for appellees.
Mr. Justice PITNEY delivered the opinion of the Court.
city adopted November 19, 1906, which had the effect of reducing complainant's charges for gas from $1.20 to $1 per 1,000 cubic feet, and an ordinance adopted December 10, 1906, assessing an annual occupation tax upon gas companies in the city.
The action was instituted in December, 1906, without previous test of the $1 rate, in the then Circuit Court of the United States for the District of Nebraska. Besides grounds not pressed, the rate ordinance was attacked upon the ground that its enforcement would deprive complainant of its property without due process of law, in contravention of the Fourteenth Amendment. The tax ordinance was attacked upon grounds of state law, and also upon the ground that it was violative of the "due process" and "equal protection" clauses of the Fourteenth Amendment. Upon final hearing the court, by decree entered April 6, 1909, dismissed the bill as to the rate ordiFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
This is an appeal from the final decree of the District Court dismissing the bill of complaint in a suit brought by the Lincoln Gas & Electric Light Company, a Nebraska corporation, against the city of Lincoln and *its officials, praying for an injunction to restrain enforcement of an ordinance of the