Petition for Writ of Certiorari — Southern Railway Co. v. City of Morristown

iret ; “OURT, ue 1 a (9 7) Supreme Court, U.S.

FILED

pec 2 1971

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| Sugireme Court uf the Uniten State

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TABLE OF CONTENTS - ate

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. - Opinions we ae peewee iiceeees nore y OU FOr ee eee ao

. x : e ie y -- 3 ; 3 ; 4 2

Jurisdiction .....-..+++eee eee err picgehoueens innwene mye 2 pone Ws

Question : Presented Serer rr ees Re iar oor poe : ee :

"* Statute Involved ..... 22.6.4: Sees Agog imine oe

; a ee Ea . F \ ;

Statement . 2s... ees me senseceeneecees Paeeiedeh seen Sah, Tk

- Reasons for Granting this Writ..... Lepr eee egee Fpeeceees, 6 Sn ‘\

A. The Changing Ciremmstanees~..*s ee Pere Rea cae = =

‘B. “Péir ‘and Reasonable’? Today . Be ;

cli 8 aves seeaneaeaeukenss EEN EE

ae) Ee cae PO 7: eae

: = OF AUTHORITIES. eS ee a

Cases: a tc one -

* American Tricking Ass? n V. United States, 252 F. Supp. 597 US

(D. D.C. 1965), aff’d, OO GI. OIE eon k coe sn same se lin. Ve

" Atchison, Topeka & Santa Fe Ry. Co. v. Public Utilities omm. zs gfe

of California,:346 U.S. 346 (1953) ............ 2, 6\10, 11, 12 psd

Chicago, B. & Q. R.R. Co. v. Chicago, 166 U.S. 226 (1897) .

City of Gainesville v. Southern m y. Co., 423 F.2d 588 (5th eye

Cir. 1970) oer tT ere Te REA ETC CS eS 13

City of Winston-Salem v. ‘Southern Ry. Co., 248. N.C, 637,

ee ee CE 0 oak So oecka sees ear engees eee :

Denver &.R.G. R.R. Co. v. City and County of Denvery 2507

ogy 241 PR ive cobs ves ou eek Chae ewe a Ag

In re Existing Highway- -Railroad Crossings at Grade, 251

App. Div. 72, 295 N.¥.S. 881 (1987) .0c.......ceceeees 9 -

Lehigh & New England R: Co. v. Public Service aac ell

Pa. G. 565, 191--AG. SOD (1087) ooo ion sn en sce ss 9

Nashville, C. & St. L. Ry y. v. Walters, 294 U.S. 405 (1935) :

- 6,7, 8, 10, 11,12, 13

New. York'& ‘N.E. RR. Co. v. ‘Bristol, 151 U.S. 556 (1894) ° 8

State ex rel. Wabash Ry. Co. v. Public Service Comm., 340° ;

Mo. 225, 100 S.W.2d 522 (1986) ...2... 0.00. ccee eee. 9

a me ae . m ; oe

Zs nce 2 > , a . %

€. ; ps a |

ii - <. ° Table ofGontents Continued

‘ oy : > : . ; es = Page

. ' Seewveme: | ° ie a "7

Federal Aid Highway Act of 1944, Ch. 626, 58 Stat. 841; 23

pis U.S. Code, See. 130 ...............4. je tvedsenesesnnet 10

- 28.U.8.C. See. 1254(1) ASLAN Lae em

Act of June 16, 1933, ch. 90, § 204, 48 Stat. 195 iabenantons. ie

City of Morristown: | mins Se

Ordinance No. 1813 iis 4, 1970) patakenta paccinosucue 2,3

‘MiscennANzovs: - | >

Federal Railroad Administration, Dept of Transportation,

a . a Program Definition Study for Rail-Highway Grade

Crossing Improvements (October 1969) ................ »7n.

* __ Prevention of Rail-Highway Grade Crossing: Accidents, S22

a Ss BEE eis Anu pnewch qensidwescsadanstdeg teas 10

E ’ Harvard Law Review Note,.26 Harv. L. Rev. - (1913) 8

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IN THE -.

- Supreme Court of the uited States

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| SourHERN Ramway. Company, Petitioner,

Ciry oF Morristown, &espondent. - -

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ON PETITION FOR A WRIT OF CERTIORARI TO THE.

UNITED STATES COURT OF APPEALS iad

FOR THE SIXTH CIRCUIT

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| Pahtiaiain prays that a writ of certiorari issue to 3

review the judgment of the United States Court: ‘of:

ss iaiiaes for the Sixth Circuit in the. si case.

OPINIONS BELOW...

The memorandum opinions of’ the. District Court :

| filed on June ‘30, 1970 and November 18, 1970 are > _

' --not reported, but are reproduced in the appendix

_ > (pp. 10a, 18a). The opinion of the Court, of Appeals ,

. dated September 22, 1971, whic¢h.‘is reprodueéd: in the

va! — ( sit is — at 448 F.2d 288.

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JURISDICTION

The opinion and judgment’ of the-Court of. err

were filed and entered on September 22, 1971... ‘The

| jurisdiction of this Court is invoke { under 28 U.S.C...

See. = eee te

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_ “Whether, under the ejrcumstances of this ease, - it

+ | was“‘fair and reasonable”’ within the rule of Atchison, 4

-~ Lopeka & Santa Fe Ry..Co. v. Public Utilities Comm.

of California, 346 U.S. 346, 352, for respondent City

to assess.against ‘Southern 100 per cent of the costs -

e ‘of installing and maintaining ‘crossing safety devices:

at each of three rail-street crossings. in said, City. .

QUESTION RESENTED|

Pp ks ae STATUTE INVOLVED’. u Rees ley

: Ordinance No. 1813 of the City of, Morristown, * or-

' dained on August .4, 1970, ‘is na out in the append

- to this. oe (Pp. 17a).:

STATEMENT |

‘ This action began whei petitioner Bonthern Railway 7

Company (hereafter Southern) filed a complaint seek-__

ing deciaratory. and injunctive relief against an or-

dinance of respondent City of Morristown (hereafter: —

the City) whigh, réegtired Southern to install and’. —

' maintain, solely at ifs own expensé,. automatic electric .

signal devices and: crossing gates at three rail-street.

crossings in the City. The complaint asserted that,

_+ under the circumstances; the ordinance constituted a

» taking of Southern’s rights and property in violation

"of the Fifth and Fourteenth Amendments. .

| Following a pre-trial stipulation of facts, the Dis- |

,. trict Court granted Southern’ 8 } motion for summary -_

pe nen stating that ‘anbeas the defendant’s legis-

- lative body;sgets forth in the body o of ‘its‘enactment its

considered findings” (App., p. 12ay the court is unable ,

to determine ‘whether .the allocation of 100 per cent

_of the costs’ to Southern was reasonable.~ Thereafter

"the City ordained Ordinance No, 1813 as an amend- ig

‘ment i in the nature of a.substitute for. the earlier ordi-_

| “nance which had precipitated this litigation. -The only | ~ 3

‘change made by Ordinagee 1813. was to add certain

_ “determinations and findings’’ (App. pp. 17a-20a)..

_. Both parties again moved. for summary judgment, ¢ and.

_ the. City’ S motion was: granted.

The stipulated facts may be. pacaneer ene as. follows :*

vie eatlinla? S pe a through Morristown ae

eno acquired from the State of. Tennessee in 1854, a year

before- Morristown ‘itself was inctrporated (Jt. App. —

-11).. Its main line now crosses -19 public streets, of =’.

which 9 are already equipped with automatic signals - .

installed and maintained by* Southern (Jr. App. 11).

Train speeds in the City are limited by: ordinance to

a maximum of .20 miles per hour (Jt. App. ‘13, 21).

«. Four trains—formerly - six——pass through ; Morristown .

each 24 hours, and there are two switching Meiciiemend

daily (Jt. App. 14; 42). ) ES : or 3

* Before Ordinance No. -1813 was’ ‘adopted, the City .

Council asked the City Administrator and the! City

'. Attorney to investigate and recommend to the Coiuncil,

which additional crossings shouldbe equipped with)

suvomatic signals. Six were Beast a but the:

" - tains the svaenues (Jt. a 11- 17, 42), is being lodged with pal

Clerk. 7

*A copy of the joint apeend in the me below, andi con-,

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Council reduced it to three.” No, hearings were held .

prior to the ordinance’s adoption (Jt.-App. 12-18). °

‘The three crossings at which the ordinance: requires

automatic signals are at Fairmont’ Street, at High

Street and at Industrial Avenue. In 1969, a traffic

count showed 3,668 vehicles using the High Street.

crossing and 4,200 using the Fairmont Street crossing,

in an 1114 hour daytime period (Jt-App. 16).- In-

dustrial Avenue is the main access road to Morris-

town Industrial Park, which has nine. industries;

1,579 vehicles used ‘this crossing during the same pe-

riod (Jt. App. 16). Each ofthe crossings now has

the warning signal required by Tennessee law, and

at each of them thé driver of a vehicle has unobstructed

vision, 15 feet from the nearest rail, of more’ than

1000 feet in each direction (Jt. App. 13, 15). The

15-foot measure contained in the stipulation reflects

the requirement of a City ordinance that the driver

of a motor vehicle stop not less than 15 feet from -

the ‘track when a train is approaching (Jt. App. 24-

25).:, The City stipulated, however, that the ordi- |

nance had never been* enforced; when the traffic count.

was made, only 1.5 per cent of the motor vehicles .

actually stopped for the crossings (Jt. App. 13, 14)..

During the last 10 years there have been five acci-

dents at the Pairmont Street crossing, resulting in

payments by Southeyn of $80,820; five accidents at

‘the High Street. , crossing, with payments of $371,-

461.05; and éne’ minor acecident- at the Industrial

Avenue crossing, with no. payment (Jt. App.-16).

During the last five years there have been. five -acci-

dents at signalled crossings in the City (Jt. App. 16).

Morristown has a population of about 25,000 in a —

county with a population of almost 40,000 (Jt. App.

, “a

_ 12). Motor vehicle registration in the county has -

* inereased from 7,500 in 1960 to, 25,500 in 1970 (Jt.

App. 16). There are 55 industries in the City, which

operate almost 900 trucks, with three. truck: termi-

nals. A substantial portion of the vehicles using the.

three crossings in question are trucks—-10 per cent

at High Street, 14 per cent at Fairmont Street, and

27 per-cent at Industrial Avenue (Jt. App. 12, 14).

Southern is the second largest taxpayer in the

county; its bills for the 1967-1969 period were $188,-

000, $111,550.01 and $98,901.61. It paid taxes to the

City during the same period of $22,698.38, $23,036.44

and. $25,714.39 (Jt. App. 1415). Overall, Southern ~,

paid approximately 21 per cent of its gross revenues

in real property taxes and maintenance of right of

way. Truck @ansporters, in contrast, paid 7 per -

eent of gross revenues for property, road use and

fuel taxes and registration fees (Jt. App. 15).

The cost of complying with the ordinance, at each

crossing, is estimated at $16,900 for i lation of

the required automatic signals, and $1,200\each year -

for its maintenance (Jt.-App. 15). . ;

The District Court’s second opinion, holding it

reasonable to ‘assess 100 per cent of the costs of the

signals at each of the three crossings against Southern,

referred to the volume of traffie across each crossing,.

. the danger at two of the crossings due to a partially

obstructed view, the amount that Southern has paid

- jn judgments, and the amount the City had spent in

constructing an overpass over Southern tracks in de-

veloping a new east-west traffic artery (App. 14a-l5a).

The Court of Appeals, in affirming, stated that the —

facts ‘‘do not suggest that Southern has been dealt

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with arbitrarily or in wireasonable fashion” (App.

a). The basis for its conclusion is stated i in one para-

pape (App. 7a-8a) :

‘*The findings of the district court ‘show that the

-erossings in question were hazardous and that the

safety devices are necessary t6 protect the safety

of both rail and highway travellers ; that accidents

at these crossings have resulted in considerable

expense to Southern; that the - ‘improvement was

necessary for public safety and, convenience in

light of the community’s growth; and that the

city had recently ‘constructed an overpass in con-

‘nection with a new east-west traffic artery at a

cost of — which it bore entirely. 7

' REASONS FOR GRANTING THE WRIT.

One ‘gnibaines point must be stated.- Southern

has not sought, and does not now seek, to challenge

in any way the judgment made by the City that sig-

nals should be installed at the’three crossings here

. .involved. We urged below, and we urge in this Court,

only the invalidity of that part of Ordinance 1813

which ‘assesses against Southern 100 per cent of the

. cost of installing and maintaining the signals.

Twice in the last half-century the Court has found

it appropriate to consider’ the extent to which a‘ rail-

road may properly be required to bear the burden -

of rglucing the hazards of motor vehicle traffic’ over

its. right-of-way. -In Nashville, C. & St: L. Ry. v.

Walters, 294 U.S. 405, the Court refused to approve,

under the circumstances of that case; an assignment

of 50 per cent of the cost to the railroad. In Atchi-

son, T. & S.F. Ry. Co. v. Public Utilities Comm. of

California, 346 U.S. 346, the Court approved, under

quite different circumstances, an allocation to the rail-

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road of 50 per cent of the cost. In each ease, the

Court made it clear that under the Constitution ‘‘there.

. is the.proper limitation that such allocation: of costs

[against the railroad] must be fair and reasonable.”’ 3

See .346 U.S. at p. 352.

‘‘Pair‘and reasonable”’ is, of course, not susceptible

of precise definition. Yet the phrase suggests, if in-

deed it does not require, not only that: the cqurts con-

sider all the circumstances, but also, that what was

‘fair and reasonable” years ago may not be ‘‘fair and

reasonable”? today. So much was expressly stated in

‘the Walters case. See 294 U.S. at pp. 414-415.

In the present case, the court below, while aceepting

the “fair and reasonable’’ limitation, hias so applied

it—or failed to apply it—as substantially to nullify

the teachings of the decisions of this Court. Because

the issue continues to arise frequently, and because ©

-of the burden on an already staggering. railroad indus-

try if the costs of achieving reductions in crossing

hazards are not fairly distributed,*, we respectfully

urge the Court, now that almost ‘two decades have

elapsed since its last opinion, to review, and réverse,

the decision below, and to restate, in the light of today’s

circumstances, the pertinent considerations of fair-

néss and reasonableness. - 2

A. The changing circumstances

Problems of crossing safety have existéd since the

‘first railroad was built. But even’ a summary .state-

ment of the changes.that have occurred, both in the

nature of the probiem and in the legislative and judi-

* See generally, Federal Railroad Administration, Dept. of

Transportation, A Program Defirition Study for Rail-Highway

Grade Crossing Improvements (October, 1969).

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cial responses to its solution, will show the need for a

contemporaneous evaluation of what is now fair and

' reasonable in assessing the share the railr oad must pay

- in reducing crossing hazards.

Until well into the present die vere of allo:

eating to the-public any of the costs of such safety

.- Measures scarcely existed. A 1913 Harvard Law Re-

view note summarized the then law: “.-. . since the -

railroad and not the highway use creates-the danger, —

it is not-unreasonable that the former rather than‘ the |

‘latter should bear the cost of removing it.’’ 26 Harv.

- L. Rev. 169, 170. “The decikionis of this Court reflected

that approach. E.g., New. York & N.E. R.R.. Co. v.

Bristol, 151 U.S. 556 (1894) ; Chiengo, B. & Q. RR. Co.

-_ v. Chicago, 166 U.S. 226 (1897) ; Denver & RG. R.R.-

| Co. V. City and County of Denver, 250 U.S. 241 (1919).

By the 1920's, however, there’ had developed an in-

_ ereasing recognition that it was unfair and unreason-

. able—and indeed impossible—to place on the railroads

_ the entire cost of reducing crossing hazards. As the

summary of state legislative provisions set out, in the

Appendix (pp. 2la-27a) will show, by that 4ime a ~

number of state statutes had modified the rule of

virtual automatic total railroad responsibility reflected

in the early cases, by setting a maximum on the share

of costs that could be assigned to the railroads. _ Fed-

eral action followed in 1933, when $400 million was

Sexe orized to be granted to the States-to pay ‘‘all or

part’’ of the costs of eliminating the hazards of .

re A ccaah is crossings. Act of June 16, 1933, ch:

90, § 204, 48 Stat. 195.

Then, “in 1935, the Walters decision of this’ Court

provided an authoritative judicial recognition of. the

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_ changes that were taking place in the nature of the

problem. . In a typically detailed opinion refusing to

approve even a 50 per cent statutory allocation of costs

‘ to the railroad, Mr. Justice Brandeis concluded: ‘The

railroad has ceased to be the prime instrument of dan- :

- ger and the main cause of accidents. It is the railroad oe

which now requires protection from dangers ineident -

to motor transportation.” 294 U.S. at pp. 422-423.

_—_————The changed circumstances were also reflected in state

* ” eourt decisions. Attempts to fof€e an increase in the _—

rdilroads’ share of the cost of reducing the dangers of

a highway crossing failed in State ex rel..Wabash Ry. oe

Co. v. Public Service Comm., 340 Mo, 225, 100 S:W..2d

522 (1936), and in Lehigh & New England R. Co. Vv. 7

Public Service Comm., 126 Pa. S. 565, 191 Atl. 380 oe a

(1937). The New York and North Carolina courts

- rebuffed attempts to assess 100 per cent of such costs

to the railroads. In re Existing Highway-Railroad

Crossings at Grade, 251 App. Div: 72, 295 N.Y.S. 831

(1937); City of Winston-Salem y. Southern Ry. Co.,

248 N.C. 637, 105 S.E.2d 37 (1958). . ioe

Perhaps even more dramatic recognition of the :

changing nature of the problem—and of what is now '

t

* “fair and reasonable’’—is the’ response of the state

legislatures and the Congress. State after State has.

_ recognized that what might have been fair and reason- ©

able in 1913 when the Harvard note was written could og

no longer be so considered. We have set out inthe,

Appendix the references to these laws. Some of them _

set a maximum beyond which railroad liability may

not extend. E.g., Kentucky, 10 per cent; Wyoming,

10 per eent; Oklahoma, 10-25 per cent; New Jersey,

5 per cent; Colorado, 10 per cent. See Appendix, pp.

299-27a. -A greater number provide for a case-by-case ©

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MiSt oes oe “project, usually with an webiiiiee. a-

tive hearing, t6:determine a proper allocation. Such

. was the California statute that efore this: Court

in the Afchison case in 1953. These laws, too, fre-

quently add a maximum limit on railzoad liability,

to énsure that.the old rule would not survive in another

guise.

While the scope of Federal concern is more limited,

Federal awareness.of the change in circumstances has

been equally clear. In the Federal Aid Highw ay Act

of 1944, Congress fixed a 10 aie maximum on the —

>

amount that could be allocated $ the railroad in elim-

inating a crossing hazard on Federal-aid highway

system. Ch. 626, 58 Stat. 841; U.S. Code; Title 23, See. .

a30. And in 1964 the Interstate Commerce Conmis-

sion, after extended hearings, fully concurred with the

conclusion reached by this Court in the Walters deci-

sion. (Prevention of Rail-Highway Grade- Crossing

Aceidents, 322 I.C.C..1.) The Commission’s opinion

stated (322 I.C.C. at p. 92) :

**In the past. it was the railroad’s responsibility

_ for protection of the public at grade crossings.'

This responsibility has now shifted. Now it is

the. highway, not the railroad, and the motor ve-

hicle, not the: train which creates the hazard and

“4 must be primarily —— for its removal.”

‘The ie ccs found (id. "" p. 87):

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. " (13) That highway users are ie atlas re-

cipients of the benefits flowing from rail-highway -

grade separations and from special protection at’

“rail-highway grade crossings. For this reason the -

’ cost of installing and maintaining such separa-.

tions_and protective devices is a public ‘responsi-

8

- pility and should he Por with public cnc

the same as highway traffic devices.’’* °

es B. * ‘Fais” and reasonable” today

tn the light of the above, the consideration of the

‘fair and reasonable” limitation by the. court below

‘eannot be reconciled with the principles enunciated by

this Court in Walters and Atchison. In the relevant -—

portion of its opinion. ‘quoted. at page 6, supra, the

court, first refers to the fact that the threé evossings

are. hazardous, and hence that the.signals are neces-

sary. As we have stated above, this is not in issue.

. Southern’s challenge does not go to the need for the

signals, but only to the extent of its proper responsi- .°

_ bility in paying for them: On that issue, the existence .

of the hazard is irrelevant; the proper question is is: who ©

' is responsible for it?

@

The court below ignored entirely the fact that ré-.

_ sponsibility does not lie entirely, or even principally,

with Southern. The facts, indeed, exemplify the ac-. .

curacy of this Court’s conclusion in Walters that ‘“‘the »

railroad has ceased to be the prime instrument of dan: |

ger’? (294 U.S. at p. 422). The ordinance itself pe

that signals have become necessary, because’ of ‘

creased automotive traffic” at these crossings, oaiutio-

ularly at Industrial Avenue, which crossing the City —

created only a few years ago and which leads to its

recently: established industrial park (App., pp. 1%a,

' ~ 19a). Indeed, the court below itself concludes that

the signals were made necessary “Sn light of the com-

* The. Commission, however, eoncluded that it had no jurindio-

__ tion to take action. This Court agreed. -American Trucking

Ass’n. v. United saan 242 F. Supp. 597 (D, D.C. mr. aff’d,

382 U. 8. 373. ‘

>

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munity’s, growth” (p. 6, supra). The stipulated

facts ayd the ‘‘findings.and determinations” of ‘the

ordinance show the hugé inerease in motor véhicle

registration, the nature of the development’ of the city *

which has greatly increased automotive traffic at these

crossings, and the consistent disregard by the motor-

ing publi¢of existing warnings (Jt. App. pp. 12, 16; ¢

App. pp.. 17a-20x). --They also make -clear that no

action by Sofithern. has. increased the hazard at. these -

crossings; indeed, there are now few er trains than

‘formerly (Jt. - pp. 14, 42). Joe" Paine

"The court beléw also yefers (see p: 6 supra) to th¢

fact that accidents at these crossings have resulted in

considerable expense to Southern. The reference would }

be more signifieant had the ordinance heen desigrted to

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benefit Southern, rather than the motoring public. a; |

-is-true, of course, that Southern may benefit, though ;

the stipulated facts reveal that accidents have occurred _

at crossings inthe City already signalled (Jt. App. p. _

16). Moreover, the court’s comment overlooks entirely

the fact that at, one of the crossings where Squthern is ie

‘to erect and maintain signals—at Industrial ‘Avenue—.

there has been no expense to Southern from accidents.

Nothing in either: Walters or Atchison suggests that

‘fair and reasonable’’ does not require a proper allo-

cation as to each installation that is required.

‘Finally, the court below notes that: the City, at \its

‘with a new arterial street. The relevance is doubtful,

‘ own expense, had erected an overpass in connection ~

to say the least, but to the extent that other expendi- ~ -

- tures have any relevance, the City’s_is balanced_by

‘Southern’ S expenses in installing and ‘maintaining sig- .

nals at nine other crossings in the City. .

13

Significantly, the court below made no reference to

- the dramatic change in the nature of the rail-street

crossing - problem—the change that has. been recog- .

nized by. this Court in Walters, by the legislatures of a

majority of the States, by the Congress and by the

— Interstate Commerce Commission. It ignored most of ©.

__ the considerations relevant to fairness and réasonable-\ —

\- néss. Cf. City of Gainesville v. Southern Ry. Co., 423

aie } FPd 588 (5th Cir. 1970). Its opinion can fairly be

= said to rest’ on the proposition that when automotive

traffic has ‘so greatly increased over three city cross-

_ings as to render them hazardous, itis ‘‘fair and rea-

‘sonable’? to charge the entire cost of measures to re-

duce those hazards to the railroad because the amount’

- involved is less than the judgments agairist it ever the -

past decade at two of them. ‘Fair and. reasonable”’ .

- . must mean more than.that. ° a

~—"

tr . CONCLUSION | ror

We respectfully stibmit, therefore, that the petition

- * for a writ of certiorari should be granted. — Jee aR

Respectfully submitted, . Rare

Crartes A. Horsky

Daviy HICKMAN

888 - 46th Street, N.W.

Washikgton, D. C. 20006.

“Wo. H. Inman : wees

=. Bank of Commerce Building

Morristown, Tenn. 37814

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= December 1971

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APPENDIX

. ou ~ PRS

<’ N6. 71-1032

UNITED STATES COURT OF APPEALS |

FOR THE SIXTH CIRCUIT

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* SourHern Rartway Comt PANY, ees Vie ppellant;

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’ Crry or Morristown; DePrdant-A ppellee.

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3 AprraL tion the United States District Court rit the |

_ Kaster n 1 District of ‘Tennessee, Northeastern, Division. c

Decided and Filed — 22, 1971.

Before: Putts, Chief J udge, a and McC and Mriue,

Circuit Judges.

.

; Mize, Cireuit con This case inyolves a: determina- :

tion whether Ordtnance Number 1813 (dated- August 4,

1970) of the City of Morristown, ennessee,” requiring

Southern Railw ay Company ta install and maintain entirely

at its own expense three automatic . signals street- -

nailway crossings in the city is arbitrary and unreasonable

ight of all the cireumstanées and therefore in violation

of the. due process and equal protection clauses of the

‘Four teenth Amendment to the Constitution.

The _action was instituted by Southern in | thé United

States. ‘District: Court for the astern District of Ten-

nessee, Northeastern Division, seeking a declaratory judg-

ment declaring invalid Ordinaneé Number 1764 of’ the City -

-

~~

ww

of Morristown (dated January 7, 1969), and temporary and

permanent, injunctive relief prohibiting its enforcement.

_ Ordinance Number 1764 was essentially identical to the .

ordinance before us exept ‘that it contained no Jegigative

findings. Following a pre-trial conference at which the

parties stipulated facts, “Southern moved for summary

judgapent. The District Cour? granted the motion, stating

in its memorandum opinion | and order (filed June 30, 1970) :

Although there is an implication i in the Gainesville ease,

ibid., that the trial court is to make such findipgs, this

Court is of the opinion that, (unless the gaps in the

stipulated facts are supplie¢d adequately) the factual

considerations, which prompted the legislative body to”

- allocate one hundred, per cent of the cost to the

~ plaintiff, cannot be declared reafonable or unreasonable

under all-of the circumstances judicially, unless the

defendant’s legislative body sets forth in the body of

its enactment its considered. findings. In other words,

the subjective findipgs of the legislative body enacting

the- ordinanée, not the objegtive findings of the tribunal

- eonfronted with the rGponsibility of teésting the

reasonableness of those findings, are crucial.

Previously i in its opinion the court had outlined the sort

of considerations pertinent to such a determination:

Proper consideration in deciding suck reasonable

relation are: -equity, benefit, degree of danger caused

by the plaintiff, and what is generally,’ under com-

' parable circumstances, considered to be reasonable~by

courts and governmental agencies. [Citing City of

+ Gainesville v.. Southern Railway Company, 423 F.2d

588, 590 (5th Cir. 1976) ].

The court stated that its purpose in granting the motion

~and keeping in @ffect a temporary restraining order was

allow ‘“‘cempliance Within a reasonable time by the

endant. with, the sehse‘of this es" so that the

ON ‘

ment

3a

The stipulated facts and exhibits now demonstrate by a

preponderance of the evidence that the aforementioned

Ordinance Number 1813 of the defendant City of -

Morristown does ndt constitute an abuse of its ‘police

. power; that the traffic controls ordered to be installed

are reasonably necessary, and it is reasonable. for the

City of Morristown to require the plaintiff Southern

Railway Company to -bear. the entire -cost of the

installation and maintenance of. signals at the grade

crossings on Fairmont ‘Stréet, High Street, and

Industrial Avenne. . ‘ : :

The findings of the district court are set forth in ‘the

appendix.

We agree with the district court’s ‘determination that

under the circumstances ihe City ef Morristown - acted

neither arbitrarily nor imreasonably in allocating to the.

Southern “Railway Company one hundfed péreent of the

_ cost of installiig and maintaining the ‘safety devices.

“Beeause of the foree and persuasiveness with which

Southern advances its position, it is well to review the

applieable legal principles and to foeus on the ita

- factual situation before us.

.

Southern relies primarily on Nashrille C. and St. L. Ry.

v. Walters, 294 U.S. 405 {1935). There the court, in a

typically careful and. detailed opinion by Mr. Justice

Brandeis, found arbitrary and unreasonable the applica-

tion of a state statute authorizing the State Highway

=

-

ew | "Cy eee,

mi make a determination as to whether the require-

of due process and equal protection had been met.

The city’s legislative body they passed Ordinance Number

1813, amending and supplementing Ordinanee Number 1764.

Southern renewed its application for relief and .the city

moved for summary judgment. Again relying on City of ©

‘Gainesville and detailing. the factors declared therein to be

relevant to such determinations, the distriet court held: —

“Tawa Ge ar ”

ey OO garner + is il ar

nh See ee ae

4a

.

Commission to. require the separation of grades when a

’ state highway crosses a railroad and when the Commission

finds it necessary for the protection‘of travelers. As the ©

court stated, ‘‘without conferring upon the Gommission

any diseretion as to the Gemma of the cost to be borne

by the railroad, [the statute] require[d] the latter to pay

in every case, one-half’ of the total cost of the separation

of grades:”’ Southern ‘orrectly sees the Nashville case as

highlighting an évolutionary shift by both ceurts and legis-

latures away from mechanical application of the maxim,

‘‘He who creates and. maintains upon his premises a condi-

tion dangerous to others is Under an. obligatién to guard it:

and protect it so that-injuries to third persons may’ not

result therefrom.’?* And, deed, appellant is correct in-

stating that: ‘‘The Supreme Court thus established—

‘more than 35 years ago—that with respect to grade

-crossings, no less than in other areas, there are considera-

tions of equity, reasonableness, and beneficial interest which

_apply to the exercise of the police power,’’ ong M ashville -

C. & St. L. Ry. v: Walters, supra. |

Howe ever, Mr. Justice Brandeis also made it quite clear

that, while the 50% alloeation of costs then before the court

was unreasonable and arbitrary in light of the ‘‘special

facts’’ of the case, an allocation of the entire cost would

often be perfectly fain gnd reasonable. He stated: _— -

It (the Railway) -concedes that in Tennessee, as else-

where, the rule has long been settled that, ordinarily,

_the Staté may, under the police power, impose upon a

railroad the whole cost of eliminating a grade crossing,

1 Cf. Continevital Improvement Co. v. Stead, 95 U.S. 161 (1877).

Summarizing the early. cases, a Note in the Harvard Law Review

in. 1913 points out that “‘sinee the railroad. and not ‘the highway

“use creates the danger, it is not unreasonable that the former rather

than the latter-should bear the cost of remiov ing ‘it.”” 26 ‘Harv. LL.

Rev. 169, 17Q. ; +

.

-

5a

or such part thereof as it deems necessary. The claim

of unconstitutionality rests wholly: upon the special

facts here shown. Nashville, C. & St. L. Ry. v. Walters,

294 U.S! 405, at.413. Cf. cases cited id. n. 3 at 413 and

"Brie RR, Co. v. Board of Public Utility, 254 US. 394

(1921). - ‘(Emphasis added)

Three different sets of factors, none of which are present

_in the instant case, seem to have led to the result reached

by the court in the Nashville ease. First, as noted above,

the act whose application was questioned was a state

statute which allocated to the railroad 50% of the cost

of the improvement in all cases which fell Sito a broad

elass, not.allowing the Highway Commission any discretion

’ to allocate cost among the parties.in a manner fair and

- _ reasonable in light of all the cireumstarices. This, i in itself,

wbuld seem to be the essence of arbitrariness.

Second, the Tennessee Sufreme Court, -in reversing the

trial court and approving the application of the statute did

no consider the circumstances pertinent to the allocation of

costs.

Third, the facts surrounding the imposition of -costs in

Nashville strongly supported a finding of arbitrariness and

unreasonableness. This was pointed out by the Supreme

Court in Atchison R. Co. v. Pub. Util. Comm’n., 346 US:

346 (1953), where it stated:

The grade separation ordered i in the Nashville case was

located in- the rural community of Lexington, Ten-

nessee, which had. a population in 1910 of 1497, in

1920 of 1792, and in 1930 of 1823. The improvement

was not required to meet the transportation needs ‘of

Lexington and was being constructed without regard

to that community’s “growth or -to considerations of

public safety and convenience resulting from such

growth. = highway under improvement was part

ys

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. 6a

of the State highway system and the grade was to be’

removed primarily .as part of economic and engineer-

ing planning and to qualify- the improvement of the~

highway for federal aid. 346 U.S. at 353.

As in“the Atchison ease, the ‘‘special facts’? of the case

‘before us paint a picture different from Nashville.

In the Atchison case it appears from the opinion that the

railroad relied on Nashville, supra,-in much the same

fashion as Southern does here. Before distinguishing the

facts before it ‘from those of the Nashv ille case the court

stated: * . .

The appellants rely heavily on the Nashville case,

‘supra, but that decision is in accord with the long-

established rule which we here follow and the Commis-

sion applied. As the Court said in the Nashville case:

“<The claim of unconstitutionality rests wholly upon the

. special facts here shown.’’ 346 U.S. at 393.

In the preceding paragraph the court had ‘stated the

applcatie rule thusly: ; :

. this Court has consistently held that in the exercise

‘of the police power, the cost of such improvements may

be allocated all to the railroads (citing cases). There is

* the proper limitation that such allocation of costs: must

be fair and reasonable.. 346. U.S? at aaa.

In the ity of Gainesville case, supra,. relied on by the

‘appellant, the Fifth Cirenit was presented a case in which

the trial court had not based its approval of allocation of

costs to Seuthern on a careful consideration ofall the

circumstances. The,court of appeals found that the court

below had thereby failed to perform its function of judicial -

review of legislative enactments i in a manner consistent with

the pronouncements of the Nashville case and rev ersed and

remanded for a ‘detérmination based on ‘‘all of the cireum-

dee tee —

stances’’ surrounding the allocation.2 In-so doing J udge .

Tuttle gave the district court guidance as to considerations

which should weigh in- such a determination. He thus

stated: cM

Southern’ does not” argue that the cost should be -

allocated according to benefit: as was argued in

‘Atchison and West Palm Beach, but that there should

be several - considerations, equity, benefit, degree of

danger caused by Southern ard what is generally, under

comparable cireumstanees, considered to be reasonable.

by eourts and government agencies. 423 F.2d at 591.

_—_ = ——

The factual circumstances surrounding the improvement

and its allocation, of its cost to Southern do not suggest

that Southern has heen. dealt with arbitrarily or in un-

reasonable fashion: _ The findings of tlie district. court show

_that the crossings in question were hazardous and that

“the safety devices are. necessary to protect the safety of

both. rail and highway travelers; that accidents at these

? Judge Tuttle made quite clear the nature and scope ofthe City

‘of Gainesville, supra, holding :

We do not hold that a municipality er’ a state ne not t have

full poweér to require a railroad company to bear all the cost

for a grade erossing safety device, nor. that ‘the G ainesville

ordinance is unconstitutional per se because it is an ‘unreason-

‘able and arbitrary exercise by the City“of Gairiesv ille of its

5 wer: power, nor that benefit should be the sole measure of

e allocation of cost. We find here that the district court

id. not make .a finding as to the reasonableness of the alloca-

tion of costs in installing and maintaining the signal devices

as to this particular case, a determination which might or .

might not maké the application of the ordinance unconstitu:

tional. Therefore, we conclude that we must remand ‘the ,

ease to the district court for a determination as to the. rea-

\ sonableness under all of the-cireumstanices, of the allocation

of one hundred percent of the cost to Southern Railway.

City of Gainesville v. Southern Railway. anew, supra, at. e

591.

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- trically controlled, the plaiwiff Southern

such signals and maintains them at its own: expense: If .

Ba

crossings have resulted in - considerable expense to

Southern; that, the improvement was necessary for public

safety and convenience in light of the community’s growth;

~ and that the city had recently constructed an overpass in

connection with a new: east-west traffic. artery at a cost of

$200,000 which it bore entirely.

We conclude that the’ district court acted properly in

granting summary judgment in favor of the City of

Morr istow nan nd that itsjudgment should be and it is ny

Affirmed.

|

APPENDIX.:

Judge Neese stated in his findings:

The elements of equity, benefit, and degree of danger

caused by Southern’s movement ‘of ifs trains through the

City of Morristown are set forth as- follows :

- Of the 27% of the local croSsings which - ile aa

ailway installed

electrical signals were installed at Fairmont Street, High

Street, and Industrial Avenue, still only 36% of the 33

crossings, within the City of Morristown “would be.

electrically, signalled. High Street and Fairmont Street

_ are main north-south arteries feeding into a recently coth-

pleted large Urban Renewal Project, which project

includes a new city-eounty high school. A June, 1969 °

traffic count showed that Fairmont Street. averaged 4,200

vehicles over an 1114 hour period from 6:00 a.m. to 5:30

m.; that High Street averaged .3,668 vehicles. over the

same period;..and that Industrial Boulevard averaged ~

1,579 over the same. period. ‘The figures for Industrial

Boulevard are unrealistic for current figures, as the

crossing at Industrial Avenue is thie main access road to

the Morristown. Industrial Park which now has 9 industries ©

. aoe | 9a ee me

with approximately 2,000 employees traveling to and from

the, axea each day and which has recently led to heavy

congested’ traffic, particularly at shift changes. ~ Both the

Fairmont Street and High Street crossings are blind

crossings. At Fairmont, a-driver traveling south has ‘his

view blocked to the west by a business building as h

approaches the railroad tracks until he is a few feet fr

said tracks. A north-bound driver has his view blogked

to the west by freight cars parked ona siding which s

Gluck Brothers, a local furniture manufacturer. At High

Street, southbound ‘traffic has its view to the west blocked

by a filling station situated near the south of said tracks

and north-bound traffic has its view blocked. by a business - * |

building.. The total cost of installing automatic signals at _

’ the three crossings contemplated’ would: be $50,700.00 with

an annual maintenance charge of’ $3,600.00. In connection

with a new east-west traffic artery in the city, an overpass

was constructed by the city at a cost of $200,000.00, no part

of which was borne by Séuthern Railway Company. In

recent years there have been five accidents \at the Fair-

mont Street crossing and five at the High: Street crossing.

- Said accidents have resulted in payments by ‘the: Southern

Railway Company of $102,281.05, with an appealed judg-

ment currently pending’ before. the Tennessee Supreme

Court of $350,000.00. The $50,700.00 cost of installation is .

$149,300.00 less than the $200,000.00 cost to the city of the

recently completed overpass ‘and is $51,581.05 less than the

$102,281.05 that Southern has paid out’ in a Judgments for

* accidents at saad intersections.

e-.- ' UNITED STATES DISTRIGSeOURT

| | EASTERN DISTRICT OF TENNESSEE

jo eee a

ae \ ‘Sot'mmers Rartway Company, Plaintiff ae

; Sedat aa a

\ Crry or Morristown, Defendant

gz . | se a Memorandum Opinion and Order

- : oh ae ; (Filed June 30,1970)

This j isa diversity action, 28 US.C. $s 1332 (a)(1), (e),

* 4 -by a railroad carrier, seeking a declaratory judgment, that

a certain ordinance: enacted by the defendant municipality

is. invalid. 28 -U.S.C. $2201. With the consent of the

defendant, against w hich it i is directed, Rule 65 (b), Federal

Rules of Civil Proceduré, an order restraining-temporarily *

‘the defendant’ enforcement of the, provisions ‘of the

_ordinance .at ‘issue’ has’ been éxtended until the final ad-

judication of the isgues herein.

The facts essential to this éonsideration are: a main line

.-of the plaintiff’s railroad tracks bisects the city of Morris-

town, Tennessee. The legislative body of the defendant

a | municipality enacted on January 7, 1969 its ordinance no. \

1575, which requires the plaintiff to install and operate °

entirely. at its expense automatic signal devices . and

crossing gatés at three of the grade-crossing intersections

of said main line .with three respective streets of. such’

muniéipality. The reason.and motivation for such enact-

ment were solely for considerations of the health, safety -

and welfare of the people affected. Basically, the plaintiff

claims, inter alia, that the ordinance is an abuse of the

defendant’ s exercise of its police power, that the traffic

controls ordered are not reasonably necessary, and that it-

is unreasonable for the defendant to require the plaintiff

to bear. the entire cost of the installation and maintenance

. of such signals. es

gees MONE ae tedl BE AS vector Maas aS Sa wei aaa

aise iced Rte enc CE ACA de SrtA PSE EU lt Ohad

;

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— Walters (1935), 294-U.S. 405, 4

It is clear under the substantive law of Tennesseo, which

is appliéable hereto, and apparently unquestioned, that the

defendant muncipality hgd and has the power, at least by

_ Implication, to require the protective devices to be installed

_ and maintained at street-railway intersections where they.

are reasonably needél, and that the ordinance under con- :

sideration has areasonable and substantial relationship to

a promotion of-the health, safety and comfort of the

eral public. Southern Railway Company: w City of

ee ille (1968), - 221 Tenn. 232, 442 S.-W. (2d) 619, 622,

certiorari denied (1970), 396 US. 1002; 90.8. Ct. 551, 24

L. Ed. (2d) 494. -As Sumunene by the Tennessée ea eme

, Court therein

* *-* there could be a case . arising from: a particular —

set of facts where’ it would be reasonable to charge

only a-part of a. crossing ‘to a railroad, and an

or dinance’ requiring - all the cost [to] be charged toa

railroad would be void as applied to that particular

case, but this would not result in making the ordinancé

_ void per se but only as to a ee case.

Ihid., 442 S.W. (2d) at 624. “*° * *° [W]hen particular

indiv ienlh are singled. out to bear the cost of advancing

_the public convenience, that imposition must bear some

vantages to be secured. * * *??. Nashville, C.-& St. L. Ry.

55 S. Ct. 486, 495

[4], 79 L“ Ed SQg9. Proper considerations in ‘deciding such

reasonable relation to the evils to ae or the ad-

reasonable relation are: equity, benefit, degree of danger

caused by the plaintiff, and what is generally, under: com-

parable circumstances, considered to be reasonable Dy -

courts and governmental agencies. City -of Gainesville v.

Southern Railway Company, ase 5th (1970), 423 F. . :

588, 590 [3]. ie *

Tt was considered ™ Court and all counsel that there

could be a disposition of this lawsuit on its merits’ under

‘Sg stipulation of facts filed herein, However, a careful

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uh study of the factors to be oda’, supra, in the light of

the stipulated facts; discloses that such an . adjudication

cannot be made: intAligently by the Court with the record

in the present posture. ° That ;being the situation pre- °

sented, the Court must fashion some order which will tend

to produce a record herein which will enable the Court

to administer justice between the adversary parties, unless

additional facts are stipulated which renders this possible.

Although ties 4 is an implication i in the Gunieacite case,

ibid:., [4] that the trial court is to make such findings,

this Court. is ‘of. the opinion. that, (unless the gaps in’ the

_stipulated facts are suppliedpadequately) the factual con-

‘siderations, which prompted the legislative body to

allocate one hundred per cent’ of the cost to the plaintiff,

cannot be declared reasonable or unreasonable under ‘all .

of the circumstances judicially, unless the. defendant’s”

legislative body sets forth in the body-of its’ enactment its

_ considered findings. In other words, the ‘subjective findings

of the legislative body enacting tie ordinance, riot the ,

_ objective findings of ‘the. tribunal confronted with the

‘responsibility of testing the reasonableness’ of those find- :

"As both parties have: moved for summary judgments,

Rules 56. (a), (b), Federal Rules of. Civil Procedure, solely

for the purpose of allowing the defendant’s legislative body

time in which to include its considered findings as a part

of the ordinance it has passed, such motion of. the plaintiff »

hereby is Grantep, that of*the defendant hereby i is Dentep,

and the temporary restraining order will remain in affect

until compliance within a reasonable time, by the defendant

with the sense of this opinion.

Enter:

ee 2 ‘J/s/ C.G. Maks

ee . is C.G. Neese . ey Se

i : United States District Judge

— J8a::-

> ; ’ = ; . . a? % oo ie 4

_ UNITED STATES DISTRICT COURT: Oe

-EARTERN DISTRICT OF: TENNESSEE a

Qivil No, 2357. ae

* SouTHERN Rarowax Courany, Phrintif

Vv. ae edi Ae

Crry oF Moxristown, Defendant i

Memorandum Opinion

(Filed November 18, 1970)

Pursuant to the Court’s order. vf June 30, 1970, the. _

defendant City of Morristown enacted its ordinance no.

1813, which .amends and supplements’ its order no. 15 975, °

to which there was advertence herein: -earlier by the Court. »

The defendant’ has reinstituted its motion for a summary

judgment, Rule 56 (b), Federal Rules of Civil Procedure,

and the plaintiff has renewed its application for relief. The -

judgment sought by the defendant will be rendered forth-

with, the pleadings, xhibits anid stipulations on file show-

ing that there is nd genuine’ issue of material fact extant.

between the. parties,\and that the defendant i is entitled to a

judgment as a m tter Sf a. Ruie 56 (cys Federal Rules of

Civil Proceduy

The asieadainey: and supplemented ordinance referred: to:

; reflects that the public improvements ‘at certain of its rail-

~ road grade crossings | were instituted by the City of

Morristown ‘‘*~ * * to. meet the local transportation

needs and further safety and convenience, made necessary

by the rapid growth of, the’ [community]. In such cir-

» cumstances, Jthe Supreme} Court has consistently held -

that in. the exercise, of. the police power, the cost of’ such ..

-". improvements may be allocated all to the railroads. * *.*

There is the proper limitation that such allogation must ~

. be fair. and ‘reasonable, *.* 99 Atchison, Topeka.

S. F. R. Co. v. Public Utit. Com. (195%), 346 U.S. .346, 352,

74S. Ct. 92,.98 L. Kd. 51, 60 (headnote 4), .<¢* * *.There

‘should be several considerations, equity, benefit, degree of

danger caused by Southern, and what 1 is, generally, under

°

oh

“electrically conttolled, the plaintiff Sothern Rg#

“stalled such signals avd maintains them at its é& expense, |

° - ‘

: a ° i

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°

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wutabediie Arcestttepich: ‘éonsidered ho. be jenssinahie by

eiatts and ‘governmental agencies, It is clear from - ;

Atchison, -thgt these are proper considerations. The

‘alements. of reasonableness and. fairvess in the allocation ~

af costs in addition to the requirement of installing the ~

signalling dey ice[s] * ** * anust be considered by the .

Court, *» °°" City of Gaincavillé +: Southern Railway

. Company. €.. Sth (1970), 423 F. (24) 588, 591[3].

>The stipulated facts awl exhibits now demonstrate by a

* preponderatice ‘of the evidence that the aforementioned!

ordinance n®. 1813 of the defendant City of Morristown

. docs not constitute an abuse of itx pglice power, that the

traffiie controls ordeted to -be instatled are reasonably —

hyers . and that it is, reasonable for the City of Mofris-

town: to ‘require the plaintiff Sonthern Railway Company

‘to bear the entire cost of the installation a nimm tenance

of signals at the grade érossings on Fairmont Street, Hfgh

Street, and Industrial Avere. The elements of -equity,

benefit, and de “etre of danger caused by Southern’s move-

ment of its trains through the City of Morristown are set

forth. as follows : ’

Of the 27% yo the local crossings which are al

If electrical signal< were installed at Fairmont ‘Stre¢t,

High Street, and Industrial Avenne, still only 36% of the .

‘83 crossings within the City of Morristown would be

electfically signalled. High Street and Fairmont Streets

are main north-south arteries feeding into a recently com-

pleted large U rhan Renewal Project, which project in- ,

cludes a new city-county high School. A June, 1969 traffic °

count «héwed that Fairmont Street averaged 4,200 vehicles”

over an 11! haar period from 6:00 am. to 5:30 pom. ; ; that ,

Hich Street averaged 2,668 vehicles over the same period ;.

and that Industrial Boulevard averaged 1,579 over the same —

period. .The figures for Industrial Boulevard ave un-

> reali<ti¢ for current figures, as the crossing at Industrial

Avenue ix the main cnectss rogd to the Morristown In- ©

s dustrial Park whieh, now has 9 industries with approx-

- ° ~

°

. Ye

‘imately 2,000 employees traveling to“ahd from the area

each day and which gias recently led to heavy congested

traffic, particularly at shift changes. -Both the Fairmont

Street and High Street crossings are. blind crossings. At

- -Fairmont, a driver travelitrg south has his view blocked |

‘sto the west by a business building as he approaches the

railroad tracks until he is a few feet from said tracks.

A north-bound driver has his view blocked to the west by -

freight éars parked on a ‘siding Which serves Gluek

‘ Brothers, a local_furniture manufacturer. At High Street,

south-bound traffic has its view to the west blocked by a

filling station situated near the south of said. tracks and

north-hbound fraffie has its view blocked by a business

building. The total cost of installing automatic signals at ©

-the thgee crossings contemplated would be $50,700.00 with

an annual maintenance charge of $3,600.00. In connection

with a new east-west traffic artery in the eity, an overpass

was constructed by the ejty at a cost of $200,000.00, no part

‘ of which was borne by Southern Railway Company. In’

_.recent years there. have been five accidents at the Fair-

_mont Street crossing and fite atthe High Street crossing.

Said accidents have resulted in payments by the Southern

: Railway Company of $102,281.05, with an appealed judg- --

ment currently pending before the Tennessee Supreme

Covert of $350,000.00. The $50,700.00 cost of installation is

£149,500.00 less than the 200,000.00 cost to the city of the

recently contpleted overpass and is $51,581.05 less than the-

£102.281.05 that Southern has paid out = — for.

‘accidents at said intersections,

Thus, ordinanee no. 1575, as modified we ordinance

no. 1813, of the City of Morristown, hereby is declared to

be velid. The mption of the defendant for a summary

judgment iereby is Graxten. The. plaintiff hereby is

Dexiep all refief. Rule 58,. Federal Rules. of Civil

Procedure.

Pre: one ." ¢

, /a/ C.G. Neese .

C. G. Neese +

United States District Judae

~w nee tly -

deerettvune iceS iatnomletatie”

. 16a ;

[Filed September 22, 1971]

UNITED STATES COURT OF APPEALS —

FOR THE SIXTH CIRCUIT _

.

‘No. 71-1032 ras ie :

Sovrnern Ramway Company, Plaintiff-Appellants — -

| - .

Crry or Morristowx, Defendant-A ppellee.

Berorr: Puss, Chief Judge, McCree. “and Miter,

— _ Cireuit Judges. : ;

} Judgment

‘Apreat from the United States District Court for the

‘Eastern District of Tennessee. = ot elt

“Tris Cacse came on to be .heard.on the record from the

United States District. Court for the Eastern District of

. <“ . °

Tennessee and was argued by counsel. eee

Own Constperatios Wuerror,It is now here ordered and

adjudged by this Court that the- judgment of the said

District Court in* this cause be and the same is hereby

affirmed. fb aie he te _%

It is further ordered that Defendant-Appellee reeover

from Plaintiff-Appellant the costs on appeal, as itemized

below, and that. execution therefor issue, out .of said

District Court. .

Entered by order of the Court.

James A, Hicctxs |

ie ; Clerk. Phe’

Issued as Mandate: =a

. A True Copy.

4 : a ‘

‘17a

Ordinance No. 1813, Being an Ordinance Fo Amend Osdinence

«+. No. 1764, and Being an Ordinance To Require All Rail-

roads Having Tracks Intersecting With ‘Industrial Avenue, | - :

Fairmont Avenue, or High Street and/or Gperating Trains :

or Locomotives Across Same in the ‘City of Morristown i. : 3

Erect and Maintain Automatic Electric Signal Devices and _

Cross Gates at Said Intersections, and To Repeal All Ordi-

co nances or Parts of Ordinances in Conflict Herewith

Sretion I. Be In Orparxed sy THE Mayor AND ALDERMEN . .

or THE City oF MorRIsTOwN, that because of the many train-

automobile accidents within the City and increased auto- ;

motive traffic at certain street and railroad intersections, —~

study and consideration has been given to the practicality -o:

and feasibility of requiring the placement of safety devices ° - &-

at certain railway /street intersections within the City, with

‘the following determinations and findings being made hy.

said Mayor and Aldermen, to-wit:

-tersections within the corporate boundaries of the

Cify.of Morristown, of these there being nineteen

(19) so called main line crossings. Of the nineteen

(19) main. line crossings, nine are électricaKy sig-

nalled, with either automatic gates, fights antl bells,

or automatic lights and bells. These said electrical

signal devices were instzilled and are maintained at

the sole expense of the Southern Railway-C ompany.

None of the other crossings within the City have

electrical‘signal devices, so it is that some 27% of _*

loéa] crossings ate electrically controlled.

| There are some thirty- three (33) railway, ‘street in-

bo

Six regularly scheduled trains pass through Morris-

fown on said main line in. an average twenty-four °

(24) hour period, and there is additional train traffic ae 5

on said main line, due to switching operations: |

3. The estimated cost of automatic gates, lights and

- bells at each crossing is $16,900.00, \: ith anestimated | - -

annual maintenance cost- of $1,200.00.

‘

. a o

+

. . .

j s \

. a .

; . 18a

‘At the direction: of City Couneil a study and wien

‘by the City Administrator and City Attorney ‘was

made of the various crossings within the City, with

> the regommendation that six (6) crossings should

~]

.

be electrically signalled, viz: Pearce Driv e, Economy -

Road, Fast Tennessce Boulevard, Fairmont Street, -

High Street, and Industrial Avemue, and while the

Couneil does find that such would he highly desir- ;

able,'the pressing need at the present time is directed

tow ard the three crossings at Fairmont Street, ‘High

Street, and Industrial Avenue.

A traffic count made between the héurs « of 6:00 ALM.

and 5:30 P.M. in June, 1969, revealed 1,579 vehicles

ever, Industrial Boulev ard, 3,668 vehicles over High

Street, and 4,200 vehicles over Fairmont Avenue.

Within the two years preceding the passage of Ordi-

, nanee No. 1764, a large Urban Renewal Project was

completed it the C ity, which affected the residential

“area lying south’ of Southern’ Railway main ljne

tracks, aad -much of same adjacent to said railw ray

right of way, in ‘such a manner as to remove much

of said residential area and concentrate same ina

public housing development on the southwest side

of the City. High Street. and Fairmont Street are

main north-south arteries feeding into this project

area.

A new City “County ‘High School has been recently

' completed, which is within-thé same general area of

the housing project, and is also served by High

Street and Fairmont Street for north-seuth traffic. ~

The said Urban Renewal Project was financed br

* furids flowing’ frtm the Federal, State and City gov-

ernments, and represe nted an ¢ xpe nditure of several

million dollars.

As a-further result-of the residential area removal

adjacent to the railway tracks, two railway/street

OS

19a

oe intersections were eliminated and closed, being Dice —

Street and Mill Street, both of which were controlled

by automatic electric signals. . .

10.- Shortly prior to the passage of Ordinanes No. 1764,

a new east-west traffie artery was-constructed in the

_ City at a cost of $700,000.00, a portion of . which,

$150,000.00, was borne by the State and the balante

by the City: . Tn coi junction with this improvement,

the City con ietshel ai overpass over the Southern

Railway tracks, at an additional cost of $200,000.00.

11. At the Fairmont-Street crossing, a motor vehicle op-

erator travelling south has his view to the west

blocked by a business buifling as he approaches the

railway tracks, until he is within a very few feet of

said tracks. The northboun wotorist at Fairmont

often times has his view to the\west blocked by rail-

. *way freight ears parked ona s} ing or spur track .

which serves Gluck- Brothers IndYtries, Incorpo- .

rated, a-loeal furniture mgnufacture

12. At High Street, sonthbound trafic hay its view to

the west blocked by a filling station situdted near the

south side of the tracks, and northbeund traftic has

* its tie@ to the west blocked by a Besiness building,.

a as it approached tlre tracks. _.

ge. 13¢ The crossing at Indiistrial Averne is the main-access

“Y.-*" . *road to the Morristown Industrial Park, which is of

° recent origin. The Industrial Park now has ‘nine (9)

industrieg established therein, with approximately -

2000 enfiployees travelling to and front the area each

. day. As of this time, only’ one ear-train collision

has oeeurred at this crossing, however, because of the

recent origin of the Industrial Park: there has been

relatively little traffie across said crossing until re-

cent months, which has iow beeome quite heavy, par-. |

. ticularly at shift changes in the tndustrial plants.

= * ‘ . 7

. ; *

.

dT

_ or before ninety (90) days from the fin:

i,

14. In the past few years, there have been five (5) aeci--

dents at High Street crossing, and five (5) accidents:

< at the Fairmont- Street crossing. These accidents

have resulted in -payments by ‘the Kailway of $2,

281.05, and an appealed judgment is* pending b fore

“ ‘the. Tennessee Supreme Court in the ‘am

$590,000.00. Part of these accidents, ef ¢

volved very serious. personal injuries.

15. During tlie period of 1960 to 1970, vehicle registra-—

tion in -Hamblen. County inereased from 900 to

25,500. : :

16. The railway trains claim virtually absolute right of :

way under existing law over intersecting vehiculat

raftic-at crossings.

_ SECTION Il. BEIT FU RTIER ORD. AINED that on

passage of ‘this

ordinance that any ‘ailpoad having tracks Nitersecting with

Industrial Avenue, Fairmont Avenue, or gh Street and

operating trains across same’ in the City* of Morristown

shall have in operation automatic electric signal devices and

crossing gates. All such signal devices and crossing gates

shall be so designed and constructedjas to-give“mple warn-

ing of tlie approac ‘h of trains ther ‘to and once activated

shall remain in operation until the crossing is completely

‘cleared and traffic on the intersecting street can proceed

across the tracks with reasonable safety and such devices

and gates shall be of-a type approved by the City Adtninis- |

trator of the City of Morristown, and such railroads shall

operate and maintain satae at no cost to the City of Morris-

‘town, in such manner as is approved by the said City Ad-

ministrater. ,

SECTION II. BE IT FURTHER ORDAFNED. that

any ordinances in conflict with this ordipance be and: the

same hereby are repealed to the extent of such conflict.

‘21a. -

.. SECTION IV. BE IT FURTHER-*ORDAINED that’

if any provision of this ordinance or the application thereof

to any person, corporation or circumstance i is held invalid;.

such invalidity shall not affect other provisions or applica-

tion of the ordinance which can be given-effect without the ‘ar

invalid provision or application, and to this end the provi-*

sions of this ordinance are declared to be severable.

SECTION V. * This ordinance shall take effect immedi-

- ately: upon ‘its final passage, the public safety and welfare :

requiring it.

Passed on first reading the 21 day of July, 1970.

“se ‘ SC Cee ePeeSseseeeeeeeeestesneees ie

np rek \ A aca a= yh on Mayor

, Attest: An ha ade :

/sf Sesece 2. Gratz

_” Recorder

- Rassed on second and final-reading the .......... day of

Whavesregcan wanes eas 9 Te

Man or

Attest

Recorder

. we

_ Relevant. State Statutes.

Alabama, Acts 1927, No. 347, art. I, § 43, p..361; All,

‘Code tit-23, $35 (Supp. 1969) (costs allocated).

Avie zona, Sess. Laws 1912, ch. 90, § 48, p. 526; Atiz. Rev.

* Stat. Ann. § 40-337 (19: D6) (costs Birt ae Sess, Laws’

1959, ch. 128, $1,.p. 257; Ariz. Rev. Stat. Ann. § 40-337.01

(Supp. 1970) ( (costs of protective devices allocated).

Arkansas, Acts 1929. No. 65 », $59, p. 331 ; Ark. Stat. Ann.

§ 76-517 (1957) (costs allocated).

3

| a | ae a hog

California, Stat. 1915, ch. 91, $43, p. 137; Cal. Pyb.. Util.

Code $1202 (Deering 1961) (costs alloeafed). Phe rail-

-yoads’ share sof costs for crossing elimination initiated by

a publie agency was limited in 1957 to 10 per cent of the

costs attributable to the » railroads’ presence plus the ~

savings due to the eliminatibn or reduction of maintenance

costs and protective costs, capitalized at 5 per cent per

. annum. (Stat. 1957, ch. 2091, $1, p. 3713). If the project

is ars to increase highway capacity, the railroads’

share is set at 10 per cént (Stat. 1957, ch. 2091, § 1, p. 3713;

Cal. Paub.. Util Code § 1202.5 (Deering 1961).

Colorado, Laws 1917, ch. 109, €T>p. 415; Colo. Rev. ‘Stat. =

* Ann. $115-4-6(2)(a) (Supp. 1969). (costs allocated). Laws

1965; ch. 236, $1, p. 926; Colo. Rev. Stat. Ann. § 1154-6

(2}(b) (Supp. 1969) (ratlropd pays. 10 per Sosase of cost of + -

protective devices). i

Comite ut, Acts 1876, ILB. No. 140, §1, p. 102; Acts

1877, H.B.-No. 197, $1, p, 142; Conn. at Stat. Ann.

§ 16-100 (1958) (costs allowited). On state highways the .

- - aportion allocated to the railroad ¢annot exceed 10 percent

(Acts 1957, No. 499, $1, p. 109; ‘Conn. Gen. Ae. |

$ 16-104 (19: 58)).

Delaware, Laws 1917 (29 Del, Laws), ch. 63, $6, p. 177:

. Del. Code Ann. tit. 17, § 70K (1953) (costs. allocated).

Laws 1925 (34 Del. ae ch. 80,.$1, p. 157; Del. Code .

Ann: tit. 17,.§ 710 (1953) ‘(state béars the cost of protective .

devi ices). ps , '

Florida, Laws 1944, 3 23078, $ 1-3, p. 1254: Fla. ‘Stat.

“Ann. $338.21 (1968) (state. ae eosts).* . > os

Georgia, Acts 1927, No.. 376, $86, 7, pp. 308, 304; Ga.

" Code Ann. $$ 95-1905, 95-1907/ (1958) teosts-allocated). ~ °

ywruary 1, 1971. the Florida Department, of Transporta- a -:

tion agreed to’ assume -50 per cent of. the cost of maintenance -of

_all new protective crossing devices. - Reg. 46.02

|

_ Ind, Ann. Stat. § 55-1810 (Burns 1951). Allocat

* costs of pr chain devices was provided ‘for in 1931 (Acts

ia Sess. Laws 1929, re ‘151, §§ 1, 3, pp. 275, .276;.

Tdaho Code §§ 62-301, 303 (Supp- 1969) (costs allocated).

Illinois, Laws 1933, IB. No. 555, § 1, p. 850; IIL. Rev. :

Stat. ch. 111-2/3, § 62 (Smith-Hurd 1966) (cost&A allocated).

_Indianu, Acts 1913, ch. 182, § 4, p. 511: (costs allocated,

7) per cent to railroad). The railroads’ share was rediiced

in 1939 to 20 per cert for elimination of existing grades}

if an ‘existing grade is not eliminated by the (oe

the railroad pays nothing (Acts 1939, ch. 41, § 1, p. 167;

ation of the

. 1931, ch. 89, $3, p.. 256; Ind. Ann: Stat. § 55-2014 (Burns

ge 1968) ).

Towa, Acts 1913. (35. Gen. ‘Aek),: “ 169, $1, p. 185; ive -

Code Ann. | §§ 478.21- 23 (Supp. 1970) (costs—allocated))

, Acts 1953, ch. 215; § 1, p. 364; Towa Code Ann. §§ 478.21-23 \.

" (Supp. 1970) (costs of protective devicés allocated). 3

ee, Laws 1917, ch. 264, $18, p. 371;-Kan. Stat. Ann:

§ 68-414, 68-509. (1964) (césts allocated). |

Kentucky, Acts 1926, ch: 194, & 6, p. 890 (costs allocated,

50 per cent to rail oad). By 1958, the railroads’ share had

beer’ reduced to a 10 per cent maximum (Acts 1958; ch. 78,

$1, p. 417; . Ky. Rev. Stat. § 277. 065 (1969)).

Louisiana, ‘Acts’ 1924, Me. 38, $1, p. 61; Lay _— Stat.

§ 33.3701 . — (costs allocated. in municipalities). . Acts.

1966, No, 511, $1, p. 1068; La. Rev. Stat. § 8:387 (Supp.

1970) (Beperianent of Highw: ays .authorized to contribute

up. to 50: per cent of maintenance costs on protective

devices).

Maine,. Pub.. Laws 1913, ch. 147, $1, p. 190 (costs

allocated). In 1931 the railroads’ share was reduced from

65 per cent to a maximum of 50 per cent (Pub. Laws 1931,

_ ch. 266, $15 p. 300;-Me. Rey. Stat. Ann. tit. 23, § 3411 _

- (1964)). Pub. Laws 1949, ch. 408, p. 453; Me. Rev. Stat.

Da

Ann. tit. 35, g 1187 (1946) (costs see Gotaiics devices |

- allocated). *

Maryland, Laws 1931, ch. 539, §§ 13, 15, pps 1371, 1373

(costs allocated: equally). In 1933 the,railroads’ share was -

reduced to 25 per cent (Laws 1933, a 223,'§ 1, p. 381; Md.

_ Code Ann. art 89B, $$ 51, 53 (1957)). ‘.

Massachusetts, Acts . 1890, ch: 428, $3, p.. 463° (costs.

allocated)’ In 1930 the railroads’ ghare was reduced from

. 65 per cent to 50 per cent (Acts 1930, ch. 417, § 3, p. 530).

The minimum ‘contribution. by the railroad was eliminated

ini 1937, and a benefits test substituted for. apportioning

costs (Acts 1937, ch.“857,. §1, p. 492; Mass, Gen. Laws ch.

159, § 70 (1970)).. Acts 1965, ch. 886, § 1, p. 730; Mass. Gen. /

Laws, ch. 160, § 147 baibd (costs of protective. devices Soe

" appor tioned).

Michigan, Pub. Acts 1921, het. No.-101, g 1, p. 291 are

dllocated, state’s maximum share 25 per cent). In 19235,

the state’s maximum share was raised to 50 per cent (Pub. .

Acts 1925, ‘ActNo,.114,.§ 5, p..156), arid in 1939 a maximum -

limit.of she ape was set on the railroads’ share (Pub.

ped atin Act No. 285, $1, p. 553; Mich. Stat. Ann.

§ 22.765 (1970)). Pub. Acts 1937, Agt. No. 295, § 1, p. 550;

~ Mich. Stat. Ann. °§ 9.1423 - - (1970) (state bears costs of

otective devices). .

. Minnesota, Laws 1923, : 134, “so p. 143 von allo-

eated). . An amendment in: 1951 incorporated a: benefits

standard for allocation (Laws 1951, ch. 179, § 2, p. 246;

Minn. Stat. Ann. § 219.40 (Supp. 1970)).

‘Mississippi, “Laws 1930, ch. 47, § 17; p. ?7; Miss. Code

~*Ann. £8039 (1942) (costs allocated).

Missouri, Laws 1913, 8.B. No. 3; art. II, $50, p.°589.

A maximum of 50 per cent on.thé state’s share imposed

in 1925 (Laws 1925, H.B. No. 726, §1, p. 322) was elim-

inated in 1963 (Laws 1963, S:B. No. 303, §1, p: 501; Mo.

ae Stat. § 389. eee re ; ne

+

Mn " i

_ Montana, s 1919, ah 148, $7, p. 148; Mont. Rev.

Codes Ann. Rien (1947) ‘(costs may be ‘allocated)..

Nebraskt, Sess. Laws 1925, ch. 163, §§ I, .2, pp. 425, 20 5

Neb.. Rev. Stat..°$§ 752415, 116" (1966) (costs allocated).

Sess. Laws 1961, ch. 359, $§ 1, 2, p. 1126. Grade Crossing

Protection Fund created in state treasury, with 40 per cent

of costsy allocated to railroads. In 1965 ‘the railroads’

share was reduced to 25 per cent/( Laws 1965, ch.220, § 1,

p. 644; Neb. Rev. Sfat. § 39- 7. 1 upp. 1968)) -

Nevaia, ‘Sess. ‘Laws 1919, ch..109; § 18A; p. 206; Nev.

Rev. Stat. § 704. 300 (1967) (costs allocattd). |

New Hampshire Laws 1937, ch. 123, § 4, :p.,171; : La

~~ 1951, ch.. 208, § 40, p. 497 5°N, Il. Rev. Stat—Ann, §§ 373.2 318 3.2

373.3, 373.10 (1966) (costs allocatéd). :

New Jersey, ‘Laws 1929, ch. 88, $2, p. 138. ‘enate: allo-.

cated). In 1947 the railroads’ jt was reduced. to 15

“per cent- (Laws 1947, ch. 178, §§ 3, A, P- 818), “nd in

1965, to 5 per cent (Laws’ 1965, ch. 185, § 2, p.. 836; NJ"

. Rev. Stat. §48:12.70 (1969) )/ In 1960, costs of protection

deviees jwere allocated, with paitrOads are ‘fixed at 15

per cent. Laws 1960p.ch. 152,.§1, pe 6a, In 1967 the

railroads’ shage,was reduced to 5 per cent (Laws 1967, ch

191, §1, P., 738; N.J. Rev. Stat. . § 48: :12- 49.1. (1969) ).

Melo: Mexico, Laws 1929, ch.. 97,” $3, p. 193 (costs: al.

located equally). -In 1949 the splingadet share was re: .

duced to a 10 per-cent maximwh (Laws- 1949,” ch. 118,

oe ie 278; N.M. Stat. Ann. § 69- 3-40 (1953)). :

New York, Constitution, Art. \VIl,. See. 14 (1925) (costs

allocated, railroads’ share:50 per cent). Amended*in 1938

to reduce railroads’ maximum ‘share to 15 per eent.. ‘Laws *

- 1956, eh. 82T,"s § 1, p..1783; N:Y.R.R. Law § 53 (Supp.:1970)

(State pay sthalf of ‘installation costs of ‘crossing ‘dev lees). -

* North Carplina, Sess. Laws’ 1923, ch. 160, $5, pe. 460 -

— allocated). - In 1959, railroads’ share of cost of

\ . < * * . ‘ : i 5% \

- .

—

: : ” .

-* . : : ‘ +

. - F 2 = * . wt m4

e .

=

.

: ° -_ >" . “i

| in. |

7 eee 26a ce

as.) seth dni “ang sachepai ts athe of 16 sen oid

q Sess, Lawg 1959; ch. 1216, $1, p. 1371; N.C. Gen. Stat.

“4 *.¢.-. §196-90" *~ 2

.

ot As North Dakota, Rese. oe 1925, ch. Stats 10, 11, -p.

8 S226; ND. Cont, Cody $$ 24-09-10, 24-09-11 (1970). Sess.

to. * ays 196%, ch. 218, § 1; p. 357; ND. Cent. Code §24-00-08.1

= - 11970) (costs of protective deviees allocated). \ .

ner (costs allocated, railroads’ share’ 65 per cent}.

Ohi, Laws 1893 (90 Ohio Laws) HLB. Nb. AMD, $5 Ms

ae ” . 1939 the’ railroads? share was hg ts to 15 per cint rites

| oe 1929 (118 Ohio aws) HB. No. $1, p. %34:.Ohio Rev..

* ; . Code Ann. § 4947.05 (Page. 1954)). Lays 1961 (129 @hio

= * *. Laws). S.B. No. 158, § ‘p. 313; Ohio Ret. Code “Aun.

i) (om of protective devices *

} ae £4007.429 (Page Supp. 1

allocated).° 6 ..

mt ; Okfakomea, Laws. 1 : "5a $2. p. SS; Okla. Stat.

"2: _—» Ann. tit. 17, $82 ‘sath “y = (costs allocated). Laws

=“ — «-

. 1M, ch. B88, $1, p. 67¥; Okla. Staf- Ann. tit. 17, §36

. . » Gregon, Laws 1917, ch. 228, $4, p. 435. A 1927 pre-

.* - .¢ _visioh. requiring -railroads to” pay .50 per cent of costs

| Beppe “(Laven 1827; ch 904 12, p05) was aisiinated in 2887

" * + ¢Laws 1937, eb. 118, $3, p. 154; Ore. Stat..$$ 763.030,

- . 762.050 (1969)). Laws 1961, ch. 88, T1, p. 73: Ore, Rev.

Stat.” § 763.170 (1969) (costs of oe devices allo-

“hs cated). . of .

—_—

* Pennsylvania, Pab. Laws on, No. 4, art. 5, $12, p

allorated). Jam ‘

4. Rhode Island, Gen, Laws J896, ch. 187; § 44; R.I. Gen.

| Laws Awn, § 39-8-2: (1956) 4egsts’ allocated). ,

a South, Carolina, Stat. , No. 634, $4, p. W057; S.C.

g Code Ann. § 58-896. (1962Z¢ (costs ‘allocated).

4 :

Supp. 1970) (between 10 per cent and 25 per cent of the

costs of protective devices wmy be allocated to railroads).-

* 4. 1408; Pa. Stat. Ann. tit. 6, § 19 alesis 159) rindi

‘Laws 1919, ch. 293, § 63, p. 412;-S.D. Compiled Laws Ann.

££ 31-27-1, .31-27-5 (1967) (eosts allocated). ~ *

Tennessee, Acts 1921, ch. 132, $4, p. 357; Tenn. Code

- Ann. $ 65-111 (1955) (some costs alloeated).

Utah, Laws 1917, ch. 47, .art. 4, $14, p. 153; Utah Code

“Ann, § 54415 (1953) (costs allocated).

Vermont, Laws 1906, No. 125, $1, p. 154 (costs aligcated,

with railroads’ share a minimum of 65 per cent). Tn 1961.

the law was am@nded.to remove the minimum, and éox<ts of

protective devices were allocated. (Laws 1961, Ne. 267,

§ 4, p. 409; Vt. Stat. Ann. tit. 20, ¢ 1902 (1970)).

Virginia, Laws 1952 ch. 398, ¢1, p. 682; Laws 1952, ch.

400, $1, p. 684; Laws 1954, ch. 218, §.1, p. 238; Va. Code

Ann. §$56.266.1, 56.366. 56.406.1, 6.406.2 (1969) (costs

allocated). - e

Wshington, Laws 1913, eb. 50, sé, p. 90; “Wash. Rev.

Code Ann, §81.55.110 (1962) (costs -alldeated). - Laws

* -1959, ch. 283; § 3, p. 1358; Wash. Rev. Code Ann. § 81.53.260

(1962) (costs of protective devi ices allocated).

West Virginia, Ex. Sess. Laws 1933;ch. 40, art. IV $14,

p. 277 (costs allocated equally}. In “1947 the railroads’”

share was reduced to 10 per cent (Sess, Laws 1947, eh. 141,

£1, p. 515; W. Va. Code Ann. § 174-14 (1966) ). :

Wisconsin, Laws 1909, ch. 540, p. 722; Laws 1925, ch. 108,

$263, p. 163; Wise. Stat. Ann. §£$ 195.29, 84.05 (West Supp.

1970 (costs allocated}). Laws 1949, ch. 643, p. 633- (costs

of protective. devices allocated). Tlie state’s maximum

sliare was raised in 1963 from 50 per cent to 70 per cent

$ (Laws- 1963, ch. 358, $1, p. 615; hers Stat. Ann. § 195.28

: (West Supp. 1970).

ow yoming, Laws 1915, ch. 146, § 40, p 19: . Wire: Stat.

Ann. § 37-64, (1957) (eqsts allocated).. sa 1963, ch. 138,

£3, p 219; Wyo: Stat. Ann. § 37.235.3 (Supp. 1969) (costs _

of protective devices allocated, railroads’ shar. maximum

a 10 ) per cent).

.

. e %

ie e

South Dakota, Sess. Lats 1919, ch. 29%, $1, p. 340; Sess. |