# Petition for Writ of Certiorari — Southern Railway Co. v. City of Morristown > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0341%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 405 U.S. 922 ## Text iret ; “OURT, ue 1 a (9 7) Supreme Court, U.S. FILED pec 2 1971 ——= tm | Sugireme Court uf the Uniten State * Octozrr TERM, 1971 | Es ieee 0 —Souruzay Ratiway_Coxpa; : ities wee 7 v.. / * | OT ee SS gh ft ee oe a a mE t o () bo Wo. H. Inman. -«- Bank of Commerce B , uilding : ie. . _ Morristown, Tenn. 3781 4: : oO * , a . % €. ; ps a | ii - : . ; 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 \. ; ¢ - ae oe ee a IN THE -. - Supreme Court of the uited States ‘Ginn TERM, aa ee, | SourHERN Ramway. Company, Petitioner, Ciry oF Morristown, &espondent. - - . ee : 4 e J ° . % . . ‘ ° ON PETITION FOR A WRIT OF CERTIORARI TO THE. UNITED STATES COURT OF APPEALS iad FOR THE SIXTH CIRCUIT me: . 4 | 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. : wa # *; 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 >-9 FZ f hn re 2 att eaters BBicierntisicmnracsirns hla Sa Aa RR det § SRS = 6 ; i 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- J 7 ° 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). 2 TEN AON SEY LUT POON RS AMPS TIO IT TMNT SST : . A ; TT sat nas ahah lanes tet ee aa veh vv . “"“N eee sao Hegel ell avi Ae ARIA ‘ . - Sa bed ~~ nee A Re REL) gant et ogi gee A ee ee) or ee . . 8 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 ae 9 _ 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 © ° . . o« . ‘ ° J om 1 a8 sas Kom et 4 ‘ et Sh MADEIRA Ke Mod il depelah Wl B iS ce Relp R AINE had Saw iPad ARES Yer E tetas eatin SRO SF 9 B's ae a _ 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): . ava. K™., . " (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. ‘ > i . 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 Pin 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 ee? = December 1971 ° x la APPENDIX . ou ~ PRS - ; a il a le aed Stain , ' . ea arent EET Pe . LET LINE DY EMOTE RINE AE A HP LUTE PE ES ’ 4 ; . “ene PETE Aer ? basis a oe a i | OOP OR aa Rite BA APES CST . oe - 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 ; M4A- -“e — 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 } MM >? ‘ ee * +32 a ob 5 a cea ilps ih hay Se ARR TRS Ties * « . i ote ° « ones ° ° ‘ ° . = ‘ - Ss ee en ee * Ses i : DS i 5a fia GSE DOG I I EBS BY 8 OE BPS cies _ ings, are crucial. 12a” 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), . e 5 o . ° ' a. 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 reali 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: 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 | 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