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3. STREET RAILROADS 38-FRANCHISE HELD NOT TO REQUIRE CITY TO BEAR WHOLE COST OF REPAVING WITH DIFFERENT MATERIAL.
A provision of a street railway franchise requiring the railway company to keep in good repair a specified portion of the street with the same material as the city should have last used to pave or repave such portion, and the street previous to such repairs, did not place on the city the burden of paving the whole street with asphalt, where the original paving was of
167-ALLEGATIONS NOT EXPRESSLY ADMITTED ARE COVERED BY GENERAL DENIAL IN RETURN.
An allegation not expressly admitted by the return to a writ of mandamus must be deemed covered by its general denial of all allegations not expressly admitted.
5. STREET RAILROADS 38-MATERIAL FOR REPAVING TO BE DETERMINED BY CITY AU
Where a street railway franchise requiring the railway to repave a specified portion of the street did not, as a matter of contract, preclude regulation in respect to paving, it was for the city to determine in the first instance what kind of paving the public necessity and convenience demanded.
6. STREET RAILROADS 38-REQUIRING REPAVING WITH ASPHALT INSTEAD OF MACADAM
Where a street railway franchise imposed on the railroad the obligation of repaving a specified portion of the street when the street was to be repaved, it was not an inherently arbitrary or unreasonable requirement to provide that such portion of the street be paved, like the rest of the street, with asphalt upon a concrete foundation, instead of macadam, with which the street was originally paved.
7. STREET RAILROADS 38-Low EARNINGS NOT EXCUSE FOR FAILURE TO REPAVE.
While the financial condition of a public service corporation is a fact properly to be considered, when determining the reasonableness of an order directing an unremunerative extension of facilities or forbidding their abandonment, the mere fact that a street railway is not earning 6 per cent. on the value of its property does not relieve it of the obligation voluntarily assumed by its franchise to keep a specified portion of the street in repair.
8. CONSTITUTIONAL LAW 209-EQUAL PROTECTION NOT DENIED BY INCONSISTENT DECISIONS.
A street railway company was not denied the equal protection of the laws by a decision of the state Supreme Court that its franchise imposed on it the obligation to repave a specified portion of the street, though it subsequent ly rendered a contrary decision with respect to a different street railway company, concedingthe similarity of the ordinances and conditions, as the Fourteenth Amendment does not insure uniformity of judicial decisions.
In Error to the Supreme Court of the State of Wisconsin.
Mr. Justice Pitney and Mr. Justice McReynolds dissenting.
Mandamus by the State of Wisconsin, on relation of the City of Milwaukee, against the Milwaukee Electric Railway & Light Company. A judgment awarding a peremptory writ was affirmed by the Supreme Court of Wisconsin (166 Wis. 163, 164 N. W. 844), and defendant brings error.
The case was heard in the trial court on a demurrer to the amended return. The demurrer was sustained, and the decision was affirmed by the Supreme Court. 165 The company Wis. 230, 161 N. W. 745. having failed after remittitur to file an amended return or take further action, judgment was entered by the trial court awarding a peremptory writ of mandamus directing it to pave the railway zone as directed in the ordinance. This judgment also was affirmed by the Supreme Court. 166 Wis. 163, 164 N. W. 844. The case comes here on writ of error under section 237 of the Judicial Code (Comp. St. § 1214). The single question presented is whether the ordinance of November 8, 1915, is void either under section 10 of article 1 of the federal Constitution, as impairing contract rights of the company, or under the Fourteenth Amendment, as depriving it of property without due process of law. The ordinance of January 2, 1900, which is the contract alleged to be impaired by the later ordinance, provides as follows:
"Sec. 2. * ** * It shall be the duty of said railway company at all times to keep in good For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
*Mr. Edward S. Mack, of Milwaukee, Wis., for plaintiff in error.
Mr. Clifton Williams, of Milwaukee, Wis., for defendant in error.
Mr. Justice BRANDEIS delivered the opinion of the Court.
A petition for a writ of mandamus was brought by the city of Milwaukee in a lower
court of the state of Wisconsin to compel the Milwaukee Electric Railway & Light Company to pave at its own expense with asphalt upon a concrete foundation that portion of Centre street, called the railway zone, which lies between the tracks and for one foot outside of them. The paving had been specifically ordered on November 8, 1915, by a city ordinance after the city had laid such a pavement on all of the street except the railway zone. Theretofore the street had been paved from curb to curb with macadam. The company admitted that the railway zone was in need of repaving at that time; but it insisted that under an ordinance of January 2, 1900, which constituted its franchise to lay tracks on Centre street, it was entitled to repair with macadam and could not be compelled to repave with asphalt.
The company contends that when this section is read in connection with section 9, it clearly appears that the obligation to re pave cannot be imposed.
[1-3] First. The Supreme Court of the state held that the language of section 2 was not distinguishable from that involved in earlier cases in which it had held that a duty to keep "in proper repair" without qualification was broad enough to require repaving and repairing with the same material with which the street was repaved. When this court is called upon to decide whether state legislation impairs the obligation of a contract, it must determine for itself whether there is a contract, and what its obligation is as well as whether the obligation has been impaired. Detroit United Railway v. Detroit, 242 U. S. 238, 249, 37 Sup. Ct. 87, 61 L. Ed. 268. But, as stated in Southern Wisconsin Railway v. Madison, 240 U. S. 457, 461, 36 Sup. Ct. 400, 401 (60 L. Ed. 739):
"The mere fact that without the state decision we might have hesitated is not enough to lead us to overrule that decision upon a fairly doubtful point."
Among the cases relied upon by the state court is State ex rel. Milwaukee v. Milwaukee | Electric Railway & Light Co., 151 Wis. 520, 139 N. W. 396, Ann. Cas. 1914B, 123, which was cited by this court in the Madison Case, | 240 U. S. 461, 36 Sup. Ct. 402 (60 L. Ed. 739), as a "persuasive decision that the obligation to keep the space 'in proper repair' extends to" repaving the railway zone with asphalt when the rest of the street is being repaved with that material. But the company points to the clause in the ordinance of January 2, 1900, which provides for repair "with the same material as the city shall have last used to pave or repair these spaces
and the streets," *and insists that its obligation is, in any event, limited to repaving with such material as the city had last used between the rails. This would put upon the city the burden of paving the whole street in case of any innovation in paving save by agreement of the company and the city. It is not a reasonable construction of the vision.
it reasonable for the city to require that the pavement be of asphalt upon a concrete foundation-a pavement which involved larger expense? The city alleged in its petition that the use of macadam by the railway was unreasonable, and that it is physically impossible to make a water-tight bond between the water-bound macadam and the asphalt, so as to prevent water from seeping through under the asphalt, causing it to deteriorate in warm weather and to be lifted by freezing in cold weather. The allegation was not expressly admitted by the return and must be deemed to have been covered by its general denial of all allegations not expressly admitted; but neither party took steps to have this formal issue disposed of. The case differs, therefore, in this respect from the Madison Case, where there was an express finding that repave ment of the railway zone with stone would have been unsuitable when the rest of the street was of asphalt. 240 U. S. 462, 36 Sup. Ct. 400 (60 L. Ed. 739). The difference is not material. As the ordinance did not, as a matter of contract, preclude regulation in respect to paving, it was for the city to determine, in the first instance, what the public necessity and convenience demanded. Compare Fair Haven & Westville Railroad Co. v. New Haven, 203 U. S. 379, 27 Sup. Ct. 74, 51 L. Ed. 237. We cannot say that its requirement that the railway zone be paved like the rest of the street with asphalt upon a concrete foundation was inherently arbitrary or unreasonable.
 Third. The company insists that the
*105 ordinance of *November 8, 1915, is unreasonable and void, also, for an entirely different reason. It alleges in its return that for a long time prior to that date the earnings from its street railway system in Milwaukee were considerably under 6 per cent. of the value of the property used and useful in the business and were less than a reasonable return. It contends that this allegation was admitted by the demurrer; and that to impose upon the company the additional burden of paving with asphalt will reduce its income below a reasonable return on the investment and thus deprive it of its property in violation of the Fourteenth Amendment. The Supreme Court of the state answered the contention by saying:
"The company can at any time apply to the Railroad Commission and have the rate made
The financial condition of a public service corporation is a fact properly to be considerpro-ed when determining the reasonableness of an order directing an unremunerative extension of facilities or forbidding their abandonment. Mississippi Railroad Commission v. Mobile & Ohio R. R. Co., 244 U. S. 388, 37 Sup. Ct.
[4-6] Second. Granted the duty to repave, and to repave with material other than that last used in the space between the tracks, was
(252 U. S. 112)
602, 61 L. Ed. 1216; New York & Queen's
rant in law for the contention that merely (Argued Jan. 21 and 22, 1920. Decided March
because its business fails to earn full 6 per
was unauthorized, and it was the duty of the
 Fourth. The company also insists that the ordinance is void because it denies equal protection of the laws. The contention rests upon the fact that since entry of the judgment below the Supreme Court of the state has decided Superior v. Duluth Street Railway Co., 166 Wis. 487, 165 N. W. 1081, which the company alleges is not reconcilable with
its decision in this case. The similarity of the ordinances and conditions in the two cases does not seem to us as clear as is asserted. But, however that may be, the Fourteenth Amendment does not, in guaranteeing equal protection of the laws, assure uniformity of judicial decisions (Backus v. Fort Street Union Depot Co., 169 U. S. 557, 569, 18 Sup. Ct. 445, 42 L. Ed. 853), any more than in guaranteeing due process it assures immunity from judicial error (Central Land Co. v. Laidley, 159 U. S. 103, 16 Sup. Ct. 80, 40 L. Ed. 91; Tracy v. Ginsberg, 205 U. S. 170, 27 Sup. Ct. 461, 51 L. Ed. 755). Unlike Gelpcke v. Dubuque, 1 Wall. 175, 17 L. Ed. 520, and Muhlker v. New York, 197 U. S. 544, 25 Sup. Ct. 522, 49 L Ed 872, where protection was afforded to rights acquired on the faith of decisions later overruled, the company seeks here to base rights on a later decision between strangers which, it alleges, is irreconcilable on a matter of law with a decision theretofore rendered against it. The contention is clearly unsound.
As we conclude that there was a contractual duty to repave arising from the acceptance of the franchise, we have no occasion to consider whether there was, as contended, also a statutory duty to do so arising under section 1862, Wisconsin Statutes, which provides that street railways shall "be subject to such reasonable rules and regulations as the proper municipal authorities may by ordinance, from time to time prescribe."
Mr. Justice PITNEY and Mr. Justice McREYNOLDS dissent.
4. POST OFFICE 21(4)-RULE AS TO CHANGE
The rule that when a department charged with the execution of a statute gives it a construction and acts upon that construction uniformly for a series of years the courts will look with disfavor upon a change whereby parties who have contracted with the government upon the faith of that construction would be injured did not apply to overpayments to a railroad for carrying the mails, due to a mistake of fact as to whether it was a land-aided railroad.
5. POST OFFICE 21(4)-DUTY OF LAND-AID-
The obligation of a land-aided railroad to carry the mails at 80 per cent. of the rates otherwise payable attaches to the road like an easement or charge, and affects every carrier thereafter using the railroad, whatever the nature of its tenure, though it received none of the land and obtained no benefit from the grant.
6. POST OFFICE 21(4)—WHETHER KAILROAD
Where a railroad company applied for land to aid in the construction of its road to the
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
*Mr. Justice BRANDEIS delivered the opinion of the Court.
The railroad from Port Huron to Flint, in Michigan, sixty miles in length, was completed on December 12, 1871. It was built by the Port Huron & Lake Michigan Railroad Company. By foreclosure of a mortgage exe
8. POST OFFICE 21(4)-COMPANY CLAIMING UNDER RAILROAD MORTGAGE NOT IN POSI-cuted by that corporation and several consolTION TO QUESTION OBLIGATION IMPOSED BY idations it became on October 31, 1900, the
property of the Grand Trunk Western Railway Company and has since been a part of its system. For forty-one years after the completion of this sixty-mile road the mails were carried over it by the successive owners under the usual postal contracts and payment was made for the service quarterly at full rates. In 1912 the Postmaster General, concluding that this was a land-aided railroad within the provisions of section 13 of the Act of July 12, 1876, c. 179, 19 Stat. 78.
Though a mortgage on the property of a railroad was executed before the company applied for a grant of lands in aid of its construction, and did not purport specifically to cover public lands, one claiming under the mortgage was in no better position than the railroad company to question the obligation of the railroad to carry the mails at the price fixed by Congress, where the trustee under the mortgage claimed the lands as after-acquired property, and the company's interest therein was by special proceeding made subject to the fore-82 (Comp. St. § 7485),1 restated the account closure proceedings.
for the twelve full years during which the road had been operated by the Grand Trunk REQUIREMENT OF Western. Twenty per cent. of the mail pay
9. PUBLIC LANDS 85
The requirement of Act June 3, 1856, granting land to the state of Michigan to aid in the construction of railroads, that the railroads should be completed within 10 years was a condition subsequently annexed to an estate in fee, and the title remained valid until the federal government took action by legislative or judicial proceedings to enforce a forfeiture; and a relinquishment by Congress of its reversionary interest in the land removed all possibility of objection to the validity of the state's patent because of the failure to complete the
line within the prescribed time.
10. POST OFFICE 21(4)-RAILROAD CHARGED
Where Congress granted land to the state of Michigan to aid in construction of certain lines of railroad, and the state granted about 36,000 acres to a particular railroad, but the patent was held invalid as to about 30,000 acres, the railroad was nevertheless subject to the obligation imposed by the grant of carrying the mails at such price as Congress might direct.
for that period was found to be $50,359.70; and this amount he deducted from sums accruing to the company under the current mail contract. He also reduced by twenty per cent. the amount otherwise payable under the current contract for carrying the mail over this part of its system. Thus he deducted altogether $52,566.87 from the amount payable on June 30, 1913. The road had in fact been built without any aid through grant of public lands. None had passed to the Grand Trunk Western when it acquired the road; and, so far as appears, that company had no actual knowledge that any of its predecessors in title had acquired any public
land because of its construction. The company insisted that the $52,566.87 thus deducted from its mail pay was withheld without warrant in law, and brought this suit in the Court of Claims to recover the amount. 53 Ct. Cl. 473. Its petition was dismissed and
1 "Sec. 13. That railroad companies whose railroad was constructed in whole or in part by a land grant made by Congress on the condition that the mails should be transported over their road at such price as Congress should by law direct shall receive only eighty per centum of the compensation authorized by this act."
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
the case comes here on appeal.
(40 Sup.Ct.) Whether which recited the former proceedings and the the company is entitled to relief depends up-completion of "sixty miles of the unfinished on the legal effect of the following facts.
portion of said line" the board directed the transfer of all the land to it. The resolution *By Act of June 3, 1856, c. 44, 11 Stat. 21, of the board was followed on May 30, 1873, Congress granted to Michigan public land to by a patent for all the land from the Governaid in the construction of certain lines of or of the state, its formal acceptance by the railroad a part extending easterly of Flint to company subject to the provisions of the Act Port Huron-another part, westerly of Flint of Congress of June 3, 1856, and action by it to Grand Haven. The act contained in Sec- to take possession of the land and to dispose tion 5 the usual mail provision.2 In 1857 of it for the benefit of the company. In 1877 the Legislature of Michigan granted these the Supreme Court of Michigan held in Bowes lands to two companies on condition that v. Haywood, 35 Mich. 241, that the patent so they accept the obligations of the grant with- far as it purported to transfer the 30,988.76 in sixty days. Each company filed within acres west of Flint was void under the Michthe specified time a partial acceptance, re-igan legislation, because there had not, in fusing to accede to the taxation features of the grant. Thereupon the rights of each to any part of the public lands was declared forfeited by the state authorities for failure to comply with the state legislation. Subsequently the companies filed maps of definite location in the General Land Office of the Interior Department, which were approved by that office; and on June 3, 1863, the Secretary of the Interior certified to the Governor of Michigan 30,998.76 acres of land lying west of Flint for the company which was to build the line from Grand Haven to Flint, the Detroit and Milwaukee Railway Company. On November 1, 1864, he certified 6,-*interest in the lands; and thereafter the 428.68 acres, all but 9740/100 acres of which Legislature of Michigan (Act of June 9, 1881, to build the line from Flint to Port Huron, Laws Mich. 1881, p. 362), ratified as to the the Port Huron & Milwaukee Railway Com-six thousand acres east of Flint, the action pany. Neither company constructed its line nor received any patent for land. The rights of way and other property of the Port Huron & Milwaukee Railway Company passed through a foreclosure sale to the Port Huron & Lake Michigan Railroad Company; and this corporation built the road in question
lay east of Flint, for the company which was
fact, been any claim or pretense that the company ever contemplated building the line west of Flint; and in Fenn v. Kinsey, 45 Mich. 446, 8 N. W. 64 (1881), that court held that an act of the Michigan Legislature passed May 14, 1877 (Laws 1877, No. 132), which purported to ratify the patent, was inoperative so far as it concerned the lands west of Flint because it impaired rights reserved to the United States by the Act of June 3, 1856. Meanwhile, Congress had relinquished to Michigan, by joint resolution of March 3, 1879, No. 15, 20 Stat. 490, its reversionary
theretofore taken by the state authorities, declaring also that "all deeds and conveyances heretofore executed by the Port Huron & Lake Michigan Railroad Company" "shall be deemed to be of full force and effect" and that "the rest and residue of said lands is vested in said company, its successors or assigns." Whether there remained then any land which had not been disposed of by that company or one of its successors does not ap
1875 proceedings were taken to foreclose the mortgage under which the appellant claims title to the road, the trustee to whom the lands had been transferred for the company's benefit was joined for the purpose of including all such interest in the property to be sold.
during the years 1869, 1870 and 1871. *But it made no application for any part of these lands until three weeks before the comple-pear; but it does not appear that when in tion of the road. Then, on November 18, 1871, it petitioned the State Board of Control, which was charged with the disposition of the public lands, to confer upon it both the 30,998.76 acres west of Flint and the 6,428.68 acres east of Flint which the Secretary of the Interior had certified; and in so applying it asked for the land "for the purpose of aiding in the construction" of its contemplated railroad which was described as extending from Grand Haven to Flint and thence to Port Huron. The board approved of making the grant "for the purpose of aiding in the construction of the road"; but no further action was taken until May 1, 1873, when upon a new petition of the company
"Sec. 5. And be it further enacted, that the United States mail shall be transported over said roads, under the direction of the Post Office Department, at such price as Congress may, by law, direct: Provided, that until such price is fixed by law, the Postmaster General shall have the power to determine the same."
The Act of June 3, 1856, had contemplated a grant of six sections (3,840 acres) per mile of road to be constructed. That would have been 230,400 acres for the sixty miles. The
3 Resolution of March 3, 1879, "That the United States hereby releases to the state of Michigan any
and all reversionary interest which may remain in the United States in such of the lands granted to, and acquired by the said state of Michigan by act of Congress of June third, eighteen hundred and fifty-six, and certified to the said state in accordance with said act, as were granted to aid the construction of the road from Grand Haven to Flint, and then to Port Huron. This release shall not in any manner affect any legal or equitable rights in said lands, which have been acquired, but all such rights shall be and remain unimpaired."