Amicus Curiae Brief — ICC v. United States Ex Rel. Los Angeles

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OCT 28 1625

—— CHARLES ELMORE GRO

SUPREME COURT |

UNITED STATES.

OcroBER TERM, 1929,

No. 54.

a: Interstate » Commerce Commnission,

Petitioner,

US.

Ms United States of America, at the Rela- (

», tion of The City of Los Angeles,

Respondent.

Company, Southern Pacific Railroad Company,

Los Angeles & Salt Lake Railroad Company and

The Atchison, Topeka and Santa Fe Railway

Company.

“A. S. HALSTED,

C. W. Durprow,

FRANK KARR,

Pac. Elec. Bldg., 6th and Main Sts.,

Los Angeles, California;

ROBERT BRENNAN,

E. W. Camp,

560 South Main St.,

Los Angeles, California,

Amici Curiae.

Parker, Sione z Baird Co., Printers, Los pom a

ff AA isttowruces: FEET LS et WOW EAR AE PRY IMS ely | evan

TOPICAL INDEX.

PAGE

III sins Scnskasiicststcnopdarceatucnpasbabconindiansaheenniainsibiii 5

I sis sayoasndtiinsiissiersbnnscctshcossqyinlaacabcnapeiisiaedatad 10

A.

‘Concress Its—ELF Has Not (AND, THEREFORE, CAN-

_ wot DELEGATE To Its CoMMIssion) Power To RE-

- QUIRE THE DoING oF WHAT THE CoMMISSION WAS

ASKED TO REQUIRE IN THESE PROCEEDINGS..........-- 10

I.

The Provisions of the Fifth Amendment to the Effect

That No Person Shall Be Deprived of Life, Liberty,

or Property Without Due Process of Law, and

That Private Property Shall Not Be Taken for

Public Use Without Compensation, Protect Corpo-

rations as Well as Natural Persons............................ 10

II.

To Require These Carriers to Do What the City

Demands of Them Would Be a Violation of the

Provisions Above Referred to of the Fifth Amend-

a sd cniousis ocecoanndeicieacaanan 11

III.

Opinions of State Courts Which Have Been Cited as

Contra to Our Position Are Either Not in Point

or Are Contrary to Decisions of This Court............ 25

IV.

Cases Heretofore Cited by the City From the Reports

of This Court Are Not in Point..................0....02..-..-- 31

V

The Railroad Companies Have Not Admitted That

the Interstate Commerce Commission Could Within

the Limitations Imposed by the Fifth Amendment

Be Vested With the Jurisdiction Which the City

Claims That the Commission Possesses...............------- 32

33 if VI.

Conclusion as to Limitations Under Fifth Amend-

i 2 Se sda sondnuinnneadesidueppavalaiveidioalas 33

B

- Tue Concress Has Not ATTEMPTED TO DELEGATE

To Irs CoMMISSION THE PowER TO Do WHAT THE

_ City AsKED THE COMMISSION TO DO.............s2c0s0-0-0 34

ii.

: PAGE

The Act to Regulate Commerce Must, if Possible, Be

so Construed as to Avoid a Difficult Constitutional

Question, Namely the Question of Power Under the

Limitations of the Fifth Amendment.......................... 34

II.

Paragraphs 18 to 20 of Section 1 of the Act to Regu-

late Commerce Do Not Confer Upon the Commis-

UN: FIRE TESS FONE ss ac cece 35

III.

Paragraph 21 of Section 1 Is Not a Source of the

Tp a8 YRS Re i EN pr inane eg eR OR 36

IV

The Commission Has No Authority Under Paragraph

3 of Section 3 of the Interstate Commerce Act to

Order the Carriers to Construct a Union Passenger

LN ROS GE ARSENE ites Other SN Ee RA ET 39

V.

Paragraph 4 of Section 3 Does Not Give the Com-

mission Power to Make the Desired Ordert................ 45

VI.

To Hold That the Transportation Act of 1920 Has

Deprived States of Any Power That They May

Have Had to Do What Is Here Sought Is Not

Tantamount to Holding That the Power Has Been

Given to the Interstate Commerce Commission.......... 51

VII.

The Court in Railroad Commission v. Atchison, etc.,

264 U. S. 331, Did Not Hold That the Interstate

Commerce Commission Had the Jurisdiction Here

TNE oon ec aes vsitnin taveiceicedinenpiitecnctasssesobieelaemcaon 58

VIII.

The Ruling Made Against Its Own Jurisdiction by the

Interstate Commerce Commission Is Entitled to

Eg ee RRR onre oe Rta D ere cae nee tanec 63

FROMOWHRG: DABS 5... ecesicnssnnicsescanscnscneisiven schssnreyerinmennecill 66

iii,

TABLE OF CASES AND AUTHORITIES CITED.

PAGE

Atchison v. California Railroad Commission, 173 Cal.

Ee ailipsesicticinbsitndiog wd dccivsire bi eae ee 13, 14, 15

Atchison v. Railroad Commission, 190 Cal. 214,

17, 25, 30

Atlantic C. L. v. Riverside, 219 U. S. 186... 11

Charleston etc. v. Varnvill, 237 U. S. 597... 55

Chesapeake v. Stapleton, Oct. Term 1928, No. 133........ 53

Chicago etc. v. State, 90 Okla. 173.000.000.000... 29

Chusan, Fed. Cases 2717, 5 Fed. Cases 680... 56

City of Los Angeles v. R. R. Co.s, 142 1. C. C. 489... 59

ame aeueer Case, 175 Cal 44) 25

Cleveland v. United States, 72 Law Edition 166... 36

Corporation Comm. v. Seaboard etc., 161 N. C. 270... 28

Sree Ss WOE OD, Ge 13

Denver & Rio Grande v. City etc. of Denver, 250

Le Te RRR eigeen alee a tak eerie Sgn et eee 32

Dewey v. Atlantic Coast Line, 142 N. C. 392... 28

meee wees, ee U.S. G72. 8 53, 56

Griffin v. Southern Ry., 150 N. C. 312... 28

Gulf, Colorado & Santa Fe v. State, 167 S. W. 192. 29

pee ¥. ct. & St. P6091. C480. 50

Hollywood Case, 192 Cal. 307....13, 14, 16, 22, 23, 24, 26

Houston v. Moore, 5 Wheaton 1................0 56

Kansas City v. Van Zant, 260 U. S. 459... 54

pamavine v. 1. C.C., 184 Fed. 118... 37

Lunham v. Railroad Co., 48 I. C. C. 611... 37

Mayor and Aldermen v. Norwich etc., 109 Mass. 103.. 27

Michigan v. Duke, 266 U. S. 570 ..0...-ccccceccoccc-c------ 24

Missouri Oil & Gas Co. v. State, 29 Okla. 640... 28

Missouri Pac. v. Porter, 273 U. S. 341.................. 56

Municipal League v. S. P., 20 Op. & Ord. Cal. R. R.

eS SOS TENET ROE Oat tee GEREN ee 6

Napier v. Atlantic Coast Line, 272 U. S. 605.............. 56

New York Central v. Winfield, 244 U. S. 147... 55

North Carolina etc. v. Southern, 185 N. C. 435... 29

Northern Pacific v. Dustin, 142 U. S. 492... 28

Nor. Pac. Ry. v. Washington, 222 U. S. 370................ 53

O. W. R. & N. v. Fairchilds, 224 U. S. 510... 24

. Eshelman, 166 Cal.

ENCES SPARE UR pee ae aaa steaee ee 13, 16, 20, 27

TRUER GET OF enn a

Se te eee ae

2A PNA WALY BETO 2 Ren a SRI

CO RLW I re ee Fa

208 OE OO “VNR eT T Dy

iv.

PAGE

NN: 90. MIR GED GS, £9, Dia seciccteasespaciscencesavenentaveesoacs 11

Pennoyer v. McConnaughty, 140 U. S. 1.....-...0..0..2.2..... 63

Pees VW. Toeneia, TIF NGF, Voinnet 19

People v. Stevens etc., 203 N.Y. 7....-...-2:ccssccescsseeeeeeees 20

NE Wi UIDs OD Fike tcc p cvcaenncoanseienatovivcesensorsees 52

Railroad Com. v. Alabama etc., 182 Ala. 357................ 26

ot Comm. of Alabama v. Alabama etc., 185 Ala.

Di talker atch cada hap tas dlcch kaa peak ohvictccianibisnsisebopusoine 26

Railroad Commission v. S. P., 264 U. S. 331,

4, 30, 32, 43, 58

remroee Tax Cases, 13 Frets: 722 icc cnciceccccccnincerscnsnceeesere 10

i i ee EE: Oe EE, hy RO siciscsnedasbeancievesvonswas 11

Si tewme v. Peenterty, Zee U.S. FOC nin 57

PRO Si, Bc A Os Dea civvccnsscccectessccssevvspnceses 10

ee Ne Hb Ie Ba UR, WES acctieiiscvcovsnesbetdcosoneconsns 10

Seotest vy. Lalcee Shore; 2 1: C. C. 67.02.02. ccc cc ccenee 42

Sinking Fund Cases, 99 U. S. 719...........-....-sssesecsseeseees 11

Smithson v. Atchison, 174 Cal. 148......00002..2.2200000-2--000e+ 52

Sou. Ry. v. R. R. Commission, 236 U. S. 439..............-. 56

State ex rel. R. R. Commissioners v. Atlantic Coast

Te Ae NNN UO Rice loora sc ccabeicnctssstucenacsesecoesnienssonses 31

State v. Jacksonville Terminal, 71 Fla. 295.................... 30

State v. K. C. Railway Co., 32 Fed. 722...............:.:000++ 29

Seti te, SE, Tete BS. WW. A ncescavscincccsscnvsncneveccéscnss 29

State v. St. Louis etc., 199 S. W. 829.........0.....e cece 29

Superior Water Co. v. City, 263 U.S. 125.................... 27

NE A HE Ss AI Ts Oe Me Mieccetiios cn seccncsinineecsoessseses 35

Texas v. Eastern Texas, 258 U. S. 204...........20000eeeee 35

Towers v. United Rys., 126 Md. 478...............2.:.:css0000-0 19

Union Station Case, 100 I. C. C. 421............ 4, 37, 41, 44

United States v. D. L. & W., 40 Fed. 101.........000000....... 42

United States v. D. & H. Co., 213 U. S. 365 (408)...... 34

United States v. Pennsylvania, 242 U. S. 208................ 41

U. S. ex rel. Arant v. Lane, 249 U. S. 367................... 65

U.S oe Coeweens ote, 20 WW .. Ss SoG icin ccccccciccssenntinces 63

Ui: S.:v Reyrolds, 250 U.S. 10.0 case sscsovadecinenees 63

TT. we: aon ate: B58 TU), Se Ba icevis ccecssicsceveshssainns 35

Vicksburg v. L. A., 160 L. A. 1028..............-.-..s00 12, 18

Wisconsin etc. v. Jacobson, 179 U. S. 287.....2..2--.----ecnee Sts

SUPREME CouRT

OF THE

UNITED STATES.

OctoBer TERM, 1929,

No. 54.

Interstate Commerce Commission,

Petitioner,

vs.

United States of America, at the Rela-

tion of The City of Los Angeles,

Respondent.

Brief of Amici Curiae on Behalf of Southern Pacific

Company, Southern Pacific Railroad Company,

Los Angeles & Salt Lake Railroad Company and

The Atchison, Topeka and Santa Fe Railway

Company.

This brief is tendered by friends of the court who are

members of the bar of the court and who were attorneys

for the above-named carriers in the proceedings before

the Interstate Commerce Commission, out of which the

Present proceedings arose. These carriers are therefore

directly interested in this proceeding, and it is a subject of

general interest, and so we submit our argument on two

Propositions :

abe” Wee

First: That the Congress cannot confer on the Com-

mission jurisdiction to do what the City seeks to have

done.

Second: That the Congress has not attempted to con-

fer such jurisdiction.

The Commission rests its case wholly on the latter

proposition, not suggesting the first. We suggest it,

not because we think that the case depends upon it, but

rather to demonstrate that the construction of the law

made by the Court of Appeals would require the solution

of a delicate and difficult question of constitutional law.

A case arising out of the endeavor to compel the con-

struction of a union station in Los Angeles was before

this Court in Railroad Commission v. So. Pac. Co., 264

U. S. 331. After the opinion was handed down in that

case and after the Commission had rendered its opinion in

these union depot proceedings, 100 I. C. C. 421, the state

commission again entered an order commanding the rail-

roads to establish a union station. Thereupon the rail-

roads petitioned the Supreme Court of the state of Cali-

' fornia for a writ of certiorari to review this last action of

the state commission and the writ issued. The carriers

had hoped that the Supreme Court of the state would

render judgment in that case and that the defeated party

would endeavor to bring the proceedings again into this

court, so that those proceedings and the constitutional

questions there involved might be before this court and

possibly consolidated with the present proceedings for a

final determination of all the questions involved.

‘niles

But the Supreme Court of the state upon the handing

down of the opinion in these proceedings by the Court of

Appeals of the District of Columbia, set aside the submis-

sion of the case, and took it off the calendar pending the

final determination of this case in this court.

N. B. Figures in brackets refer to pages of tran-

script except where context indicates a different reference.

STATEMENT.

The gist of the petition for mandamus is in the twelfth

paragraph [12-13], where it is alleged that the City filed

a complaint with the Commission, and where, by refer-

ence to Exhibit A [29], that complaint is made a part

of the petition. Manifestly the jurisdiction of the Com-

mission and the correctness of its ruling as to its juris-

diction must be determined upon the record which was

made before the Commission. It is, therefore, necessary

to examine the complaint filed with the Commission and

also the petition for final order [115- 128] to ascertain,

if possible, whether or not a case within the competence

of the Commission was presented.

That complaint was a printed document of 167 pages,

together with certain maps and diagrams. All but some

30 pages consisted of exhibits, made part of the com-

plaint by reference and not reproduced in the record here.

That complaint alleges in paragraph II [2] that each

of the defendants is a common carrier by rail engaged

in interstate as well as intrastate commerce and doing

business in and out of and through the City of Los An-

geles. The lines of railway are shown on a map made

a part of the complaint [28-29]. This map shows that the

Serene

Se ee ee

isis

existing Southern Pacific passenger station is about one

mile from the site proposed for the union station; the

Salt Lake terminal about the same distance from that site,

and that the Santa Fe passenger station is a somewhat

less distance from the same site. It is alleged that the

Salt Lake depot is inadequate, that the Santa Fe depot

provides scant facilities. It is not alleged that the South-

ern Pacific depot is in any wise inadequate, but it is al-

leged that the use of that depot “does not conform to any

satisfactory plan for the elimination of the dangerous

railroad grade crossings on said Alameda street and else-

where” [32, 33]. And that quotation is substantially

a repetition of a statement made in the opinion of the

California Railroad Commission in its decision No. 9338,

20 Opinions and Orders 937.

All these passenger terminals lie southwardly from

the proposed site, which is on the west side of the Los

Angeles River, on the same side with the Southern Pa-

cific and Santa Fe stations, while the Salt Lake station

was on the east side of the river. We say “was” because

after the complaint had been filed, and before the petition

for final order was filed, the Salt Lake station was dam-

aged by fire, and since that time that line has been tem-

porarily using the Southern Pacific station [5, 108].

There is an allegation [9] that at a certain hour of the

day the patrons of the two lines overcrowd the concourse

of the Southern Pacific station. But there is no allega-

tion anywhere that the station is not ample for the busi-

ness of the Southern Pacific alone. See also page 60.

Main tracks of the Santa Fe lie near, but not on the —

site of the proposed station. In order that Santa Fe ee A

trains might enter the proposed station shown on the ©

me

diagram [128-129], that company would have to lay

trackage into the station from its main tracks along the

west bank of the river near Aliso street; the Salt Lake

must either enter the station by bridging the Los An-

geles River near Aliso street or must arrange with the

Santa Fe to use the latter’s trackage in and out of the

station from some point south, probably Hobart Junc-

tion, about four miles from the proposed station, and from

near Broadway bridge south to the station, a distance

of about one mile. The Southern Pacific must take its

north and south trains from a point near the Broadway

bridge to and from the station on new tracks or must

arrange with the Santa Fe to use about one mile of the

latter’s tracks. The Southern Pacific trains running be-

tween Los Angeles and El Paso must be deflected from

Alhambra avenue east of river, and brought into the

station on a bridge to be built near Aliso street.

The petition [25] assumes that joint use would be

ordered or arranged for. We quote, adding in brackets

a few distances:

“That the carrying into effect of the union pas-

senger depot order requested by the City of Los

Angeles, as aforesaid, would require to a substantial

extent the joint use of existing railroad terminal

facilities in or adjacent to the City of Los Angeles,

including the following uses:

“The use by the Southern Pacific passenger trains

from the north of the Santa Fe main line tracks on

the west bank of the Los Angeles River from a point

north of the Broadway viaduct as far south as Aliso

street [one mile] ;

“The use by the Salt Lake passenger trains from

Pasadena of the Santa Fe tracks on the west bank

of the river between the same points [one mile];

CURE, Tee Oe

Se Uta. teas ke nd

font me

nf

“The use by the Salt Lake passenger trains from

the south of the Santa Fe tracks from Hobart Junc-

tion on the south to the site of the proposed union

passenger depot on the north, a total distance of ap-

proximately three miles [four miles]; and

“The use by the Southern Pacific of the Salt Lake’s

tracks on the east bank of the Los Angeles River

from Alhambra avenue southerly to Butte street and

thence west over the Salt Lake’s Butte street line to

Alameda street” [four miles].

The program also includes the abandonment by the

Southern Pacific of the operation of train service on

Alameda street between College street on the north and

15th street on the south, approximately three miles [46].

The land on which the proposed station would be built

is some 37 acres in extent [25]. There are now no rail-

road tracks on it except the Southern Pacific tracks on

Alameda street, which are not to be used and could not

be used in connection with the proposed station. [Dia-

gram, 128-129.] Nothing in the record before the Inter-

state Commerce Commission showed or tended to show

that any of the land within the proposed site is, was, or

ever had been dedicated to any public use, but a part of

it is owned by the Southern Pacific Company, which is

the lessee and operator of the railroad facilities of the

Southern Pacific Railroad Company. The latter company

owns no part of the thirty-seven acres above referred to.

In the petition for mandamus [25] the part of the: acre-

age owned by the Southern Pacific is denominated “rail-

road terminal land.”

It is true, also that paragraph XXI of the petition

[27] says: :

“That whenever this petition contains an allega-

tion on a question of fact or a reference to any

sili

finding of fact made by the Interstate Commerce

Commission or by the California Railroad Commis-

sion, such fact appears and is shown by the evi-

dence in the record before the Interstate Commerce

Commission in said Docket No. 14778.”

The Commission in its answer [150-156] has not re-

ferred to the allegation that a part of the site is already

“railroad terminal land.” Otherwise we can find no alle-

gation and no intimation anywhere in the record that in

any paper or proceeding before the Interstate Commerce

Commission was it ever alleged or attempted to be shown

that one foot of the 37 acres was “railroad terminal land,”

whatever that phrase may mean. All that the state Com-

mission could say was [104]:

“A large portion of this particular site is already

owned by the Southern Pacific Company.”

Even this mere ownership is not mentioned by the In-

terstate Commerce Commission in its report in May,

1928 [128 to 147]. Nor was this fact of ownership

mentioned in the city’s petition for final order [115 to

128], except as that petition included as an exhibit a

copy of the state Commission’s opinion containing the

language last above quoted.

So then what the Commission was asked to do, which

it held that it had no jurisdiction to do, was this:

Order the three lines to dedicate to public use some 37

acres of land a mile from the present station of the

Southern Pacific and the Salt Lake companies, and nearly

a mile from the Santa Fe station; erect on that land a

passenger terminal, including about four miles of tracks

in the station yard, and buildings as shown on the dia-

_ gram already referred to; build or get use of trackage

eer ee rey

necessary to use this station, namely, joint use by the

Southern Pacific of Santa Fe tracks about one mile in

length; joint use of Santa Fe tracks by the Salt Lake

some five miles in length; joint use by the Southern

Pacific of Salt Lake tracks some four miles in length;

build a bridge across the river to carry the tracks of the

Southern Pacific and possibly the tracks of the Salt Lake,

and maintain and operate the plant as a union passenger

station, abandoning the existing separate stations. All

at a cost of at least ten million dollars [137-8].

And it was vis-a-vis these facts that the Interstate

Commerce Commission said in May, 1928 [139]:

“The distinction between a simple switch connection

such as was contemplated by the cases previously re-

ferred to, and the elaborate facilities sought to be

required by us in the present case, is obvious.”

(Italics ours. )

ARGUMENT.

A.

Concress ItsetF Has Not (AND, THEREFORE, CANNOT,

DELEGATE TO ITs COMMISSION) POWER TO REQUIRE

THE DoiNG OF WHAT THE COMMISSION Was ASKED

TO REQUIRE IN THESE PROCEEDINGS.

I.

The Provisions of the Fifth Amendment to the Effect

That No Person Shall Be Deprived of Life, Lib-

erty or Property Without Due Process of Law,

and That Private Property Shall Not Be Taken

for Public Use Without Compensation, Protect

Corporations as Well as Natural Persons.

Railroad tax cases, 13 Fed. 722 (746); Santa Clara v.

S. P., 18 Fed. 385 (402); San Mateo v. S. P., 13 Fed.

—

ae

;

ee, Ae

145 (151); St. Louis S. W. v. U. S., 245 U. S. 136; Sink-

ing Fund cases, 99 U. S. 719; Atlantic Coast Lines v.

Riverside, 219 U. S. 186.

We understand that this proposition is not contested

and we leave it without argument. The cases cited from

reports of this court do not rule on the proposition but

assume it to be true.

II.

To Require These Carriers to Do What the City

Demands of Them Would Be a Violation of the

Provisions Above Referred to of the Fifth Amend-

ment.

Cases closely in point and decided under the Fifth

Amendment are few. We shall use, for the most part,

cases that turn on the corresponding provisions of the

Fou teenth Amendment.

Penn. v. Mahon, 260 U. S. 393.

Suppose that Congress should pass a special act order-

ing these three railway companies to abandon their exist-

ing passenger stations in Los Angeles, create and main-

tain a union passenger station in that city, and build

necessary trackage and use one another’s tracks so far as

needed to get in and out of the new station; ordering,

also, the Southern Pacific to abandon train service on

Alameda street, between College street and 15th street.

On what theory of constitutional law could such an act

be sustained? Of course, the only possible theory is

that of an exercise of the police power; but that power

has its limits although we may not be able to define

them. In Penn. v. Mahon, 260 U. S. 393, the opinion

. contains the following:

rR

—

«nf

“The protection of private property in the Fifth

Amendment presupposes that it is wanted for public

use but provides that it shall not be taken for such

use without compensation. A similar assumption is

made in the decisions upon the Fourteenth Amend-

ment (citing cases). When this seemingly absolute

protection is found to be qualified by the police

power, the natural tendency of human nature is to

extend the qualification more and more until at last

private property disappears. But that cannot be

accomplished in this way under the Constitution of

the United States.” ,

Manifestly a railroad which is now furnishing proper,

adequate, convenient and sufficient station facilities can-

not be required to tear down its station and erect another

one merely because Congress might think the latter would

be preferable.

Vicksburg v. La., 160 La. 1028.

Manifestly, also, a railroad cannot be required to pro-

vide an airport adjacent to its station even though Con-

gress might think that this would greatly convenience

the public. For this would be to compel the railroad to _

render a service which it has not undertaken to render.

It would be a taking of private property for public use

without compensation. So, too, even though the existing

station facilities of a railroad be inadequate, this does

not empower Congress to compel it to build a new sta-

tion, at a new location, apart from its existing line of

railroad, for this would also be requiring it to render a

service which it has not undertaken to render.

The soundness of a claimed rule of law frequently may

be tested by assuming its application to a concrete case.

Let us then consider the case of the Santa Fe. It hasa

terminal in Los Angeles city. Its station buildings are _

it~

inadequate. Its terminal site is concededly adequate.

Therefore Congress may compel it to provide adequate

and convenient station facilities at its terminal site. But

Congress cannot compel it to provide station facilities at

San Fernando, in the northern part of the City of Los

Angeles, and some fifteen or twenty miles from the Santa

Fe’s existing line; for the Santa Fe has not undertaken

to render that service. No more can it be compelled to

provide terminal facilities at Venice, or at Hollywood,

merely because those communities happen to lie within

the municipal corporation known as the City of Los An-

geles, although several miles from any Santa Fe rails.

In other words, when a railroad establishes its terminal

in a given city, it does not thereby undertake to move

that terminal to any other point within that city which

will in the opinion of Congress advantage the public

convenience.

It will doubtless be urged by the City that the carriers

have dedicated their property to an adequate passenger

service in the City of Los Angeles, and hence are subject

to regulation of that service in the public interest under

the police power. But we insist that when a carrier

establishes a terminal at Boyle Heights, in the eastern

edge of the City of Los Angeles, it does not thereby

undertake to move that terminal to Hollywood, in the

west end of the City, if Congress should be of the opinion

that public interest would be advantaged thereby. Tele-

phone case, 166 Cal. 640; Del Mar case, 167 Cal. 666;

Atchison Company case, 173 Cal. 577; Hollywood case,

192 Cal. 307.

Now, it is apparent at the outset that the “undertaking

. to serve” of a steam railroad is materially different from

ae Fe

that of such public utilities as domestic water com-

panies, gas companies and electric light companies. A

steam railroad does not undertake to go to the homes and

places of business of its patrons to serve them. It under-

takes only to serve those patrons who come to it. This dis-

tinction is important. It was recognized in the Atchison

case, 173 Cal. 577 (585), and in the Hollywood case, 192

Cal. 307 (312).

But the City may say: “You have undertaken to

serve the people of the entire City of Los Angeles.”

We answer no. We have undertaken to serve only those

people of the City who come to our station, upon our line

of railroad. This limitation is inherent in the very nature

of a steam railroad and the method of its operation. It

cannot go to the homes of its patrons; a water com-

pany or a gas company must go in order to serve its

patrons. A street railway, in this respect, is midway be-

tween the steam railroads on the one side, and the gas

company or water company on the other. It partakes

somewhat of the characteristics of each. Surely the un-

dertaking of the street railway, which enters a community

to serve its people, is broader and more comprehensive

than that of a steam railroad. Yet the court did not hesi-

tate to hold in the Hollywood case, supra, that the under-

taking of a street railway cannot be held to extend beyond

the limits of the franchises which it has applied for and

accepted. If the undertaking of a street railway is lim-

ited to its franchises, surely the undertaking by a steam

railroad cannot be held to extend beyond them. Yet not

one of these carriers can comply with this order without

applying for and obtaining additional franchises which

it has never sought nor desired.

jails.

It will be said that the City is not seeking to compel

carriers to move their terminals to a distant part of the

City, but is seeking to move them only one mile. But

whether it be a mile, or five miles, or twelve miles, the

rule of law is the same. In either case, it is equally be-

yond the power of Congress because it is an attempt to

compel the carrier to undertake a service which it has

never undertaken to render. In the Hollywood case, supra,

some of the extensions sought were only one-half mile in

extent and involved only a relatively small expense of ex-

tending a street railway track along a public street. The

court had no hesitancy in holding that the street railway

company could not be compelled to make even this short

and comparatively inexpensive extension because it had

not undertaken to render this service. The removal of a

railroad terminal one-half mile in the heart of a great

city may be vastly more burdensome and oppressive than

the twelve-mile extension sought in the Atchison Com-

pany case, 173 Cal. 577.

But the principle is the same in either case. Once

you concede that public authority may compel a public

utility to expend money, in any amount, however small,

in a service which it has not undertaken to render, there

is no place to draw the line and you have opened the door

to unlimited confiscation of private property.

To order these extensions, and to order the acquisition

of the new land necessary for rights of way and the

union station site and to order the dedication of these

lands to public use and the construction thereon of a

union passenger station building and some four miles of

trackage, is confiscation of the property of the railroad

m. cOmpanies and their several shareholders. It is not pre-

= os

tended that any compensation is to be given to them for

the forced investment of so great an amount of capital

in such new enterprise, the carriers being left to such re-

muneration as they may be able to secure from rates they

may be able to have established and to collect.

In the case of Pac. T. & T. Co. v. Eshleman, 166 Cal.

640, the court said at page 686:

“Tt therefore stands admitted, as indeed it must,

that for the taking no compensation whatsoever is

made. And, of course, it cannot be contended and

is not contended that an apportionment of rates or

tolls for a service to be rendered in the future is a

compensation for the present taking of property, and

as little can it be said that the allocation of such

rates and tolls to be earned in the future can ever

measure up to the constitutional requirement that

property shall not be taken without compensation

first made and paid to the owner.”

In the Hollywood case, 192 Cal. 307, the court said

at page 310:

“We entertain no doubt that neither the Railroad

Commission nor any other governmental agency pos-

~ sesses such power.”

As was said in Pac. T. & T. Co. v. Eshleman, 166 Cal.

640, at page 665, it may not be amiss to point out that

devotion to a public use by a person or corporation of

property held by them in ownership does not destroy

their ownership and does not vest title to the property

in the public so as to justify, under the exercise of police

power, the taking away of the management and control

of the property from its owners without compensation,

upon the ground that public convenience would better be

served thereby, or that the owners themselves have proven

false or derelict in the performance of their public duty.

nee

way:

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% Sy

a

In his concurring opinion, in this Union depot case,

when it was before the state court, in Atchison v. Cali-

fornia Railroad Commission, 190 Cal. 214, Chief Justice

Shaw said, at page 228:

“Entirely new tracks will have to be built to reach

the new depot, and the land on which it is to be

erected and on which the track is to be built will

have to be acquired by the said companies, or by

some subsidiary company in which they are all in-

terested, and vast sums of money must be used in

constructing the buildings and tracks required for

the union depot. If this be true, it is equally beyond

the power of the Interstate Commerce Commission

to make the order. To require the railroad com-

panies to construct this depot and the tracks neces-

sary therefor is equivalent to ordering them to dedi-

cate new property to a public use. I know of no

power which will justify the state in commanding

a railroad company to thus acquire and dedicate

property to a public use.”

Chief Justice Shaw’s opinion in that case was followed

by the same court in the Hollywood case, 192 Cal. 307.

The absolute duties of the carriers are limited to the

furnishing of reasonable and adequate facilities to their

several patrons. If a station is too small a railroad may

be required to enlarge it. If a station burns down a rail-

road may be required to replace it. These are matters

within the realm of the police power. These are but the

carrying out of obligations incurred when the railway

entered the field of its activity; but to require a railroad

company to abandon its own adequate facilities and go

elsewhere than on its own property and acquire addi-

tional land and construct new facilities to be used jointly

by itself and another railroad company is outside the

- tealm of regulation and is an infringement upon the con-

wstitutional right of the carriers.

a

UIP Fon

ada leek aS

we

ON OE oe eee

—_ ——y

—18—

The appellant seeks not to compel the carriers to make

adequate facilities that are now inadequate, but requires

abandonment of adequate facilities, at least, so far as

the Southern Pacific Company is concerned. In Vicks-

burg v. Louisiana, etc., 160 La. 1028, which was an

appeal from a judgment enforcing an order of the Com-

mission requiring the erection of a new depot, the evi-

dence showed that the existing depot was adequate al-

though unsightly and not modern. The court, in a con-

cise and clear opinion, held that the Commission had ex-

ceeded its jurisdiction.

It is recognized by the courts that there is a clear dis-

tinction between power to regulate and the right to man-

age. The management of the business of a corporation

is a matter which must of necessity be left to the busi-

ness sagacity of the owner if the corporations are to

survive. It is clearly recognized that as long as such

property is to be held in private ownership with the inci-

dental risks attached to its use in the business, the right

of management must remain incident to the ownership

and does not pass to the government. Otherwise, the

government would secure for the public benefit all the

advantage of ownership without the incidental risk.

Even when the charter of a railroad corporation em-

powers it to make extensions into territory which it has

not seen fit to enter, neither the state nor the Federal

Government can compel such extension, for it is strictly

a matter to be determined by the directors of the com-

pany whether it would be advisable; and as to the cost,

feasibility, and advisability of raising the necessary cap- —

ital for investment in the proposed venture. This was _

recognized and clearly stated in Towers et al. v. United — ;

a ee

Railways, 126 Maryland 478. In that case it appeared

that a street railway company had the right under its

franchise to build the extension sought, but had never

exercised that right. The Public Service Commission or-

dered the extension, basing its order “upon an obliga-

tion arising under the appellee’s profession and undertak-

ing to serve the territory designed to be served by the

proposed extension, and upon its finding of fact that the

extension would be remunerative to the appellee.” The

Supreme Court of the state granted relief to the rail-

way company, and this decision was affirmed by the Court

of Appeals of Maryland.

In People v. Stephens, 197 N. Y. 1, it was said that

the commissioners could not assume the position of finan-

cial managers or substitute their judgment for that of

the directors of the company. That case involved a re-

fusal of the Commission to permit the issuance of se-

curities for the purchase of railroad property which con-

stituted an addition or extension to its existing service,

but the principle involved is the same as in the present

case, namely, that the question of the advisability of the

issuance of securities for additions or extensions to

service is primarily a matter for the judgment of the

owners and directors of the company. The court in that

case said at page 10:

“We do not think the legislation alluded to was

designed to make the Commissioners the financial

managers of the corporation, or that it empowered

them to substitute their judgment for that of the

board of directors or stockholders of the corpora-

tion as to the wisdom of a transaction, but that it

was designed to make the Commissioners the guar-

dians of the public by enabling them to prevent the

issue of stock and bonds for other than the statutory

purposes.”

—20—

The case last cited was quoted in the case of People v,

Stevens, etc., 203 N. Y. 7, where the court said at page

19 in regard to the powers of the Public Service Com-

mission that its discretion could not override the discre-

tion of the officers of the company in the management of

its affairs or the provisions of the statute which prescribe

the cases in which securities are permitted.

These authorities sustain, we submit, the proposition

that the matter of investment of new money in additional

enterprises is strictly a matter of corporation business

policy to be left to the sound discretion of the directors,

and may not be compelled by any governmental agency.

The jurisdiction of the regulatory bodies is limited to

the regulation of enterprises in the public use to which

the owner has itself dedicated the property. The courts

have repeatedly held that the powers of railroad commis-

sions are limited to regulation. Therefore a railroad line

or extension, or a union station must be constructed be-

fore there is an object a&pon which this function of

regulation may operate.

This limit on the powers of governmental agencies was

pointed out in Pacific Telephone etc. Co. v. Eshleman,

166 Cal. 640. The court said at page 663, after stating .

that there are certain fundamental principles governing

the exercise of the police power:

“The first of these is that this power goes merely

to the regulation of the public utility and that when

an order passes beyond proper regulation it amounts

to a taking of the property, and the order is then

referable not to the police power but to the power

of eminent dumain.”

hl cen

The court further says at page 665:

“This principle, it is to be noted, is not that the

Legislature, acting directly or through its authorized

mandatories, may not subject property devoted by its

owners to a public use to another public use, or to

the same public use by its rivals, but that the doing

of this is an act referable to the power of eminent

domain and not to the police power and that com-

pensation must be made accordingly. Herein lies

the vital distinction between the legitimate exercise

of the police power and the exercise of the power

of eminent domain. In the former, uncompensated

obedience to the order is imperative. In the latter,

the order may not be enforced without compensation

first made. And, finally, it may not be amiss to point

out that the devotion to a public use by a person or

corporation of property held by them in ownership

does not destroy their ownership and does not vest

title to the property in the public so as to justify,

under the exercise of police power, the taking away

of the management and control of the property from

its owners without compensation, upon the ground

that public convenience would better be served there-

by, or that the owners themselves have proven false

or derelict in the performance of their public duty.

Any law or order seeking to do this passes beyond

the ultimate limits of the police power, however,

vague and undefined those limits may be.”

Therefore, we submit that the government is without

power to order or compel the carriers and their stock-

holders to procure, say, ten million dollars and dedicate

the same to public use extending their main lines and

entering upon a traffic which they have no desire to under-

It will doubtless be urged that as the City has expressed

a willingness to give the necessary franchises and permits

therefore the railroads may be compelled to ask and

amam

@reawr:

—22—

accept them; that if the railroads may be required to

exercise the power of eminent domain to obtain necessary

land for needed facilities, then they may also be com-

pelled to acquire or accept such franchises as may be

necessary for needed facilities. But the same fallacy

which we have pointed out underlies this argument.

We admit that if the Santa Fe station building is too

small for the proper accommodation of its patrons, the

company may be compelled to enlarge its building, al-

though in order to make such enlargement it might have

to acquire new land in one way or another. But that

is not to say that the company may be compelled to re-

move its station to a point not on its line, and acquire

the permits or franchises necessary to accomplish such

removal.

In the Hollywood case, supra, the decision went to the

effect that an order compelling extension and service in a

field not embraced within the limits of the enterprise of

the carrier and not within the limits of its franchise was

void and non-enforceable. In this respect steam railroad

corporations are not essentially different from street rail-

road corporations.

The routes of steam railroads are to be set forth in

their articles of incorporation under the state law of Cali-

fornia. California Civil Code, Sec. 291 [Appendix 1].

Upon incorporation the company has the right to con-

struct its railroad as defined in its articles. California

Civil Code, Sec. 465, subdiv. 4 [Appendix 2]. It has the

right to cross any public highway in California, Sec. 465,

subdiv. 5 [Appendix 3], outside of incorporated cities

or towns, Sec. 470, California Civil Code [Appendix 4];

in incorporated cities and towns under the limitations — |

: —23—

_ placed by Sec. 470, no construction can take place without

the grant of franchise by a two-thirds vote of the city

authorities—that is for crossing or use of streets. The

granting of a franchise always presupposes an application

therefor by the one who would exercise the franchise.

Therefore, whether or not a railroad corporation pos-

sesses franchise in any municipality in California be-

comes an important factor in ascertaining the extent of

the company’s obligation to serve the public. If the com-

pany does not hold a franchise allowing it to voluntarily

construct extensions, there is no justification for saying

that the company had impliedly undertaken to extend its

line whenever it should become desirable from the stand-

point of the government agencies—see Hollywood v. Rail-

road Commission, 192 Cal. 307 at page 313.

To create the proposed station several franchises will

have to be secured by all petitioners. The Santa Fe will

have to secure a franchise to cross Dominguez street,

Commercial street, Aliso street, Center street, Vignes

street and Lyon street. The Southern Pacific and Salt

Lake roads will have to secure a franchise to cross the

Jos Angeles River, Center street, Vine street and Lyon

street. The Southern Pacific will have to acquire a fran-

chise for the relocation of Alameda street between Aliso

and Los Angeles streets. And perhaps all of the carriers

will have to acquire franchises to cross other streets at

other locations, depending upon how it should be deter-

mined that access could be obtained to the proposed sta-

tion site. Session Laws of California, 1925, page 1024

[Appendix 5]; Constitution of California, Section. 19,

Article 11 [ Appendix 6].

<i

We submit that no governmental agency has authority

to make any lawful order requiring railroad companies

or their officers to apply for franchises or privileges which

those corporations and their officers do not desire to exer-

cise. As said in the Hollywood case, supra, the franchise

rights of a street railroad are important in ascertaining

the extent of the company’s obligation to serve the public

because they represent the authority which the company

has asked for and obtained from the municipality—but

where, as in the present case, the company does not hold

franchises allowing it to voluntarily construct these ex-

tensions, there is no justification for saying that the

company has impliedly undertaken to extend its line when-

ever it should become necessary.

So’ we say that the thing sought to be required here

is beyond the absolute duty of the corporations. O. W.

R. & N. v. Fairchilds, 224 U. S. 510 (529). In the

Hollywood case the court announced the following con-

chision :

“We conclude, therefore, that Section 36 of the

Public Utilities Act (Statutes of 1915, page 115),

in so far as it seeks to confer jurisdiction upon the

Railroad Commission to order a street railway com-

pany to extend its lines into a new territory in which

it has no franchises, is ineffective for that purpose

and to that extent void.”

Michigan, etc. v. Duke, 266 U. S. 570, is analogous.

This case involved the question whether the state might

impose the duties and liabilities of a common carrier upon

one engaged in performing a contract to transport mer-

chandise for one manufacturer over the public highways

from a plant within a state to a destination in another

well ee

state. The final paragraph of the syllabus, which is vir-

tually a quotation from the opinion, says:

“The conversion by a legislative fiat of property

used exclusively in the business of a private carrier

into a public utility and declaring the owner a public

carrier is an unconstitutional taking of private prop-

erty for public use without compensation.”

ITI.

Opinions of State Courts Which Have Been Cited

as Contra to Our Position Are Either Not in

Point or Are Contrary to Decisions of This Court.

Even a cursory examination of the opinion in the Civic

Center case, 175 Cal. 441, will show that the sole ques-

tion considered and the sole question decided there was

the question of jurisdiction over grade crossings as be-

tween the State Commission and the City of Los An-

geles.

In Union Station case, 190 Cal. 214, it was not de-

cided that except for the taking away thereof by the

Transportation Act of 1920, the State Commission would

have had the requisite authority to require these carriers

to erect a union station. The petitioners in that case

made two main contentions—first, that by the enactment

of the Transportation Act of 1920 Congress had so occu-

pied the field as to exclude the states from any power

or control over union stations of interstate railroads,

extension of lines, abandonment of operation, and use by

One carrier of another’s main line tracks; and, second,

that an order requiring the erection of a union station

where it would necessitate the extension of main line

tracks, abandonment of operations and of adequate ter-

minal facilities, acquisition of new property and dedica-

—)

tion thereof to the public, was in excess of the police

power and therefore was not within the power of any

governmental agency. Manifestly a decision of either of

those questions in favor of petitioners would determine

the case and require the annulment of the Railroad Com-

mission’s order. The California court elected to consider

and determine the first of these questions. The determi-

nation thereof favorable to the petitioners rendered un-

necessary consideration of the remaining questions, as the

court pointed out in saying, “This disposition of the

primary inquiry involved in these proceedings renders

unnecessary a discussion of the several subsidiary ques-

tions presented for our consideration by the briefs of

counsel herein.” 190 Cal. 227.

Mr. Chief Justice Shaw, in a concurring opinion, in-

dicated that in his view the petitioners were equally cor-

rect in their second contention. And in the Hollywood

case, 192 Cal. 307, the court in banc cited and adopted

Chief Justice Shaw’s language with unqualified approval.

Railroad Comm. of Alabama v. Alabama etc., 182 Ala.

357, was a suit by a carrier to enjoin the enforcement

of an order requiring the construction of a union station.

Evidently the proposed station was located at a point

where three railroads converged and the order therefore

did not involve the question of the power to compel an

extension of lines by any carrier. At any rate, the ques-

tion whether a carrier can be compelled to extend its

tracks for a union station was not discussed or men-

tioned therein.

In Railroad Comm. of Alabama v. Alabama etc., 185

Ala. 354, the question which we are here considering was

i

not controverted and was not discussed. The power of

the state to compel all railroads entering a given city to

use a union station was conceded. The controverted ques-

tion was whether the state could compel the railroads to

jointly acquire the necessary land and jointly construct

the building. The court said, “If the state has the power

to which we have referred, and that power seems to be

‘conceded, then it has the corresponding authority to put

that power into exercise.” (Italics ours. )

In Mayor and Aldermen v. Norwich etc., 109 Mass.

103, the question here involved was considered and de-

cided and that case is therefore in point here. But the

reasoning of that decision will not commend itself to the

court. The power of the state to compel a railroad to

extend its tracks so as to reach a union station was predi-

cated upon the reserved power to alter, amend or repeal

its charter, and that conclusion is in direct conflict with

the decision of this court in Superior Water etc. Co. v.

City, 263 U. S. 125. It is therefore entitled to no weight

whatever as authority here.

In answer to the argument that to require the rail-

roads to expend money in extending their line for the

rendition of a service which they had not undertaken to

render would amount to a taking of property without

compensation, the Massachusetts court said:

“Their compensation for the outlay is in the tolls

they received from travelers or others.”

That this theory is unsound is clear from the argument

and statement of the court in the Telephone case, 166

Cal. 640, where the court said, at pages 686-7:

ARN RITE UIT a

—2B—

“And of course it cannot be contended and is not:

contended that an apportionment of rates or tolls for

a service to be rendered in the future is a compen-

sation for the present taking of property.”

Dewey v. Atlantic Coast Line, 142 N. C. 392, is not in

point here at all, for it was an action by a group of prop-

erty owners to enjoin railroads from carrying out an

order of the Commission to construct a union station, .

which order the railroads desired to obey. No further

comment on that case is necessary.

Griffin v. Southern R. Y., 150 N. C. 312, is another

case of the same sort as the Dewey case and equally irrele-

vant here.

In Corporation Comm. v. Seaboard, etc., 161 N. C.

270, the sole question reviewed aside from a procedural

question was whether the validity of an order requiring

two railroads to join in a union station could be attacked

upon the ground that the erection of the station at the

_ point designated would take away the business of a rival

town. The case is not at all in point here.

The ruling in Missouri Oil & Gas Co. v. State, 29 Okla.

640, is rested squarely upon the authority of the Massa-

chusetts case of Mayor v. Norwich etc., supra, which,

as we have shown, is contrary to the decisions of this

court and cannot be accepted as authority here. The

Oklahoma court said that this Massachusetts case had

been cited with approval in Northern Pacific v. Dustin,

142 U. S. 492, but herein the Oklahoma court was mis-

taken. The Massachusetts case was not cited there at

all, and its doctrine was certainly not approved as the

decision of this court was quite the opposite of the de-

cision made by the Massachusetts court.

—29—

- State v. K. C. Railway Co., 32 Fed. 722, is cited as

authority by the Oklahoma court, but is entirely out of

point. The Kansas City case related only to a union

station at a railroad intersection and therefore did not

involve the power of the state to compel a railroad to

extend its line.

In State v. St. Louis, 165 S. W. 491, the question of

the power of the state to compel a railroad to extend its

lines in order to enter a union station does not appear

to have been raised. At any rate, it is not discussed in

the opinion.

State v. St. Louis etc., 199 S. W. 829. is the same case

at a later stage, and the same comment applies.

Gulf, Colorado & Santa Fe v. State, 167 S. W. 192,

is not in point here, because it related to two intersecting

railroads and the order of the Commission was construed

by the court as requiring them to construct a union sta-

tion at or near the junction of their lines of railroad.

North Carolina etc. v. Southern, 185 N. C. 435, con-

cerned merely the validity of an order requiring two in-

tersecting railroads to maintain a union station at the

junction point. The question of the power of the state

to compel an extension of lines was not involved therein.

Chicago etc. v. State, 90 Okla. 173, was a 4 to 3 de-

cision affirming the power of the Commission to require

railroads to construct a union station, but did not men-

tion the point we are here considering other than by

very general language. The majority opinion said that

“the power in question was settled and established by a

long line of decisions of this court, both upon the theory

that the same was a proper exercise of its police power,

—30—

or of the right reserved to the Legislature to amend,

alter or repeal the charter of said railroad.” But, as we

have pointed out above, this theory has been definitely

rejected as unsound. The majority opinion in the Okla-

homa case also criticized as unsound and refused to fol-

low the decision of the California Supreme Court in the

union station case, 190 Cal. 214, which was shortly there-

after affirmed by this court in Railroad Commission v.

Southern Pacific, 264 U.S. 331.

In State v. Jacksonville Terminal, 71 Fla. 295, the

court held to be void an order of the Railroad Com-

mission requiring several roads and the Terminal Com-

pany to join in the erection of a new, better and larger

terminal station upon a site apart from the site of the

existing terminal station then in use. The court’s con-

clusion on this point is correctly summarized in the last

paragraph of the syllabus, as follows:

“The statutes do not confer upon the Railroad

Commissioners any power that may fairly be re-

garded as authorizing the Commission to make an

order requiring the local terminal company and the

railroad companies that are its patrons jointly to

change the location of the terminal company’s depot

or terminal.”

It is but fair to add, however, that the court does say

in the course of its opinion:

“There is authority to compel the railroads enter-

ing the city to erect, operate and maintain a joint

passenger terminal or union depot, even though the

effect of such order would be to require the rail-

roads using the present terminal depot to withdraw

from it.”

That statement, however, was pure obiter dictum.

me es

In State ex rel. R. R. Commissioners vy. Atlantic Coast

Line, 67 Florida 441, the constitutional limitations are not

discussed.

In Missouri etc. v. State, 38 Okla. 401, no constitu-

tional question seems to have been raised, discussed or

decided.

We have now reviewed briefly all of the state cases re-

lied upon heretofore by the City as supporting its claim

of power to compel a railroad to extend its main line

tracks for the purpose of joining in a union station at a

point apart from its existing tracks. Of the cases cited

by the City in this connection all but six did not involve

this question, and are therefore not in point. Of the six

remaining cases, three are in point. In these the courts

of Massachusetts and Oklahoma affirmed the existence

of this power upon the ground that it is comprised within

the reserved power to amend, alter or repeal charters, a

theory which has been rejected as unsound by this court

and which would in any event be a matter for the exertion

of state power and not of federal power where the power

to alter or amend the charter is reserved by the state and

not by the federal government. In the three remaining

cases, the Supreme Court of Alabama and the intermediate

court of Texas have assumed the existence of this power,

either because it was expressly conceded, or because it

was not controverted in the case before them.

IV.

Cases Heretofore Cited by the City From the Reports

of This Court Are Not in Point.

Wisconsin etc. v. Jacobson, 179 U. S. 287, involves

_ only an order requiring two intersecting railroads to pro-

—32—

vide at the point of intersection facilities for the inter-

change of cars and traffic.

Denver & Rio Grande v. City etc. of Denver, 250 U. S.

241, is equally irrelevant.

Neither of these cases involve the joint use of main

line or any line, the joint use of any facilities, the exten-

sion of main line, or the abandonment of lines.

It has been urged that argument on the Fourteenth

Amendment was fully presented to this court in Railroad

Commission v. Atchison, 264 U. S. 331, and that “it is

the chief business of that tribunal to pass on just such

contentions. If it be true that by reason of any pro-

vision of the Federal Constitution no public authority has

any power * * * the Supreme Court of the United

States would undoubtedly have said so.”

On the contrary, our understanding is that this court

seldom or never bases a decision on the Fourteenth or

any other amendment to or clause of the Constitution if

the case can be disposed of on other grounds. In the

case just cited, the court found that it could readily

affirm the judgment of the state court without solving

any problem of constitutional law. What powers the

State Commission might have exercised within the limita-

tions of the Fourteenth Amendment would seem to be an

academic question if, as we claim, Congress occupied the

field by enacting the Transportation Act, 1920.

V.

The Railroad Companies Have Not Admitted That

the Interstate Commerce Commission Could

Within the Limitations Imposed by the Fifth

Amendment Be Vested With the Jurisdiction

Which the City Claims That the Commission

Possesses.

Carriers are not parties to this proceeding, and it is _

probably of no importance what positions they take or |

—33—

have taken in connection with the so-called Union S ation

proceeding.

In fact, both here and in the State Court we argued

quite fully that under the limitations of that amendment

the State Commission could not be clothed with jurisdic-

tion to do just what the City here seeks to have the Inter-

state Commerce Commission do, and our argument as to

the State Commission’s lack of power under the Four-

teenth Amendment applies equally to the possible extent

of the Federal Commission’s power under the Fifth

Amendment. Our argument as to the State Commis-

sion’s power was, first, lack of power under the Four-

teenth Amendment; second, lack of power under the

commerce clause and the Interstate Commerce Act, espe-

cially Transportation Act 1920. We have never admitted

that the Fourteenth Amendment permits the state gov-

ernment or that the Fifth Amendment permits the fed-

eral government to force the carriers to do that which is

the aim and end of this present proceeding.

VI.

We Therefore Conclude Our Presentation of This

Case Under the Limitations of the Fifth Amend-

ment as Follows:

A public utility which has undertaken to render a public

service can be required by the government in the exercise

of its police power to expend money when necessary to

render that service adequate, safe and convenient (sub-

ject, of course, to limitations not necessary to particularize

here). The government may not require such a public

utility to expend money in the rendition of a service

other than or different from or in addition to that which

ni,

it has undertaken to render. A steam railroad does not

undertake to go to its patrons. It undertakes only to

serve those who come to it. The undertaking of a rail-

road in this behalf is defined by the location of its tracks

and is limited by its franchise. To require a railroad,

for the purpose of joining in a union station or for any

other purpose, to extend its tracks to a point apart from

its line, necessitating the acquisition of additional prop-

erty and franchises would amount to a taking of private

property for the public use without compensation, a

deprivation of property without due process of law, and

a denial of the equal protection of the law.

B.

Tue Concress Has Not ATTEMPTED TO DELEGATE TO

Its CoMMISSION THE PowER TO Do WuatT THE

City ASKED THE COMMISSION TO Do.

I,

The Act to Regulate Commerce Must, if Possible,

Be So Construed As to Avoid a Difficult Consti-

tutional Question, Namely, the Question of Power

Under the Limitations of the Fifth Amendment.

This is a well-known rule repeatedly applied by this

court. The most frequently quoted statement of it is that

made by Mr. Justice White in United States v. D. & H.

Co., 213 U. S. 366 (408):

“Where a statute is susceptible of two construc-

tions by one of which grave and doubtful constitu-

tional questions arise and by the other of which such

questions are avoided, our duty is to adopt the lat-

ter.” Citing Harriman v. I. C. C., 211 U. S. 407.

anf

_ The rule was repeated and followed in. United States

v. Standard Brewery, 251 U. S. 210, where Mr. Justice

Day quotes as follows from the case of United States v.

Moy:

“A statute must be construed, if fairly possible,

so as to avoid not only the conclusion that it is un-

constitutional, but also grave doubt upon that score.”

In Texas v. Eastern Texas, 258 U. S. 204, the court

at page 217 quoted the rule as stated in United States v.

D.& H. Co. The same rule has been quoted and followed

scores of times by other federal courts and in the state

courts.

II.

Paragraphs 18 to 20 of Section 1 of the Act to Regu-

late Commerce Do Not Confer Upon the Com-

mission Any Such Power.

Those paragraphs are permissive in character and not

compulsory. They were drafted and enacted not in order

to compel extensions of lines, but for the purpose of pre-

venting unnecessary and uneconomical extensions. We

do not think that the Commission had any authority or

jurisdiction to issue any certificates because they were

not asked for by the carriers, or any one of the carriers,

but this is not the place or time to discuss that proposi-

tion. Their permissive character, however, is brought

out in Texas v. Gulf, 270 U. S. 266, where Mr. Justice

Brandeis, at page 272, announcing the opinion of the

court, says:

“Paragraphs 19 and 20 provide that a carrier de-

siring to construct one (an extension) may apply for

a certificate and prescribe the method of proceed-

s* =

ing.

in.

And again the same Justice, in Cleveland v. United States,

275 U. S. 406, said at page 408:

“These paragraphs (18-to 21) relate to the con-

struction, acquisition, extension and abandonment of

a railroad. They deal primarily with rights sought

to be exercised by the carrier.”

It would be inconsistent to hold that the issuance of

such certificate is necessary and at the same time to hold

that the Interstate Commerce Commission has jurisdic-

tion to order all these works to be done, for if the Com-

mission has power to order the things to be done, there

is certainly no occasion for issuing any certificates per-

mitting them to be done. It would be as if a man should

say to his small son, “You may go to school this morn-

ing, Johnny, if you like,” and at the same time tell him

that he must go to school whether he like or not.

Ill.

Paragraph 21 of Section 1 Is Not a Source of the

Asserted Jurisdiction.

This paragraph has been discussed in that connection

at other times and in other places, and with reference

thereto we desire to say that when Congress delegates

power, or whenever any Legislature delegates power, the

delegating body lays down the rule by which the power

delegated is to be exercised.

“When a subject requires legislation for the regu-

lation of future conduct, but the objects of it are so

diffuse and variable that they cannot be distinctly

~~ apprehended and comprised in the ordinary terms

of legislative classification, it is not unusual to pre-

scribe general rules if such do not already exist,

and delegate the power to apply those rules to the

0

varying circumstances which may arise and give occa-

sion for control.” Louisville etc. v. I. C.C ., 184 Fed.

118, at p. 122.

So the Commission must find in the Act not only a

grant of power to require the extensions of lines, but

must find also in the Act some general rule as to when

and how that power shall be exercised. In other words,

it cannot be held for a moment that the Commission has

been given carte blanche to require existing railroad

companies to build— that is, to extend their lines any-

where and everywhere. They can only be required to

build or extend their lines in those cases in which Con-

gress has said that they must extend the line. The Com-

mission is to determine in a given case whether the facts

impose the duty under the law. As the Commission

itself said, the power of the Commission to adjudicate

complaints brought before it extend only to such acts or

omissions of common carriers as are in contravention of

the provisions of the Act to Regulate Commerce. [un-

ham v. Railroad Co., 48 I. C. C. 611.

In the report made in the Union Station case, 100 I. C.

C. 421, Mr. Commissioner Hall said, at page 461:

“Possibly their complaint should be regarded as

an application under paragraphs 18 to 20 of Sec-

tion 1, although I do not think so. Ostensibly it is

a complaint under paragraph 21.”

And a little later, at page 462, he said:

“It is only in paragraph 21 that the power to re-

quire appears, and there it is confined to car service

as the term is used in the Act, and to extension of

carriers’ lines.”

“Seem

ao,

ae

At page 426 the Commission had said that the term

“car service” as used in the Act, “relates to vehicles used

in the transportation of property. The authority to re-

quire a carrier to extend its line may include authority to

require it to construct stations necessary and incidental

thereto.” The word “thereto” in this sentence seems to

refer to car service. The Commission said further, on

the same page:

“We conclude that paragraph 21 does not empower

us to order the construction of a union passenger

station where, as here, the station would be the prin-

cipal thing and the extension of lines the incident.”

Where paragraph 21 authorizes the Commission to re-

quire carriers to provide themselves with safe and ade-

quate facilities for performing car service, we have a

definite statement by which to measure the power of the

Commission. The Commission is given power to enforce

the provision relating to car service, and that term is

defined in the Act. Now when the Commission is given

in paragraph 21 the further power to require the car-

riers to extend their lines, it can only be exercised in

order to require carriers to perform some duty imposed

upon the carriers by some provision of the Act. That

is all the power that the Commission has in any case,

but we must look elsewhere to ascertain what duties are

imposed upon carriers with respect to the extension of

their lines. So far as paragraph 21 is concerned, the

reading of it would clearly indicate that the extension

of lines there referred to was such arn extension as might

be necessary to the fulfillment of the duties respecting car

service, and we take it that paragraph 21, by its terms

when properly construed, gives the Commission authority yd

—39—

to require only such extension of lines as may be inci-

dental and essential to the furnishing of car service as

defined in the Act.

IV.

The Commission Has No Authority Under Paragraph

3 of Section 3 of the Interstate Commerce Act to

Order the Carriers to Construct a Union Passen-

ger Station.

In paragraph IV of the petition for final order [115]

filed by the City of Los Angeles, it is urged that the

Commission has authority to order the carriers to con-

struct a union passenger station under this paragraph.

And, indeed, it is the only one referred to as the basis

of jurisdiction in that petition for final order.

The position of the City seems to be that by virtue of

the amendment made by the Transportation Act, 1920,

the Commission now has authority to make such an order,

but did not possess such power theretofore. The par-

ticular language of the section relied upon reads as fol-

lows:

“All carriers * * * shall, according to their

respective powers, afford all reasonable, proper and

equal facilities for the interchange of traffic between

their respective lines and for the receiving, forward-

ing and delivering of passengers or property to and

from their several lines and those connecting there-

with.”

As a matter of fact, however, this language was not

changed by the amendment of 1920. The only important

change in paragraph 3, which was paragraph 2 prior

to the amendment, was the elimination of the clause read-

ing, “But this shall not be construed as requiring any

AARNE pesky

eames

——y

—40—

such common carrier to give the use of its tracks or term-

inal facilities to another carrier engaged in like business.”

The reason for this elimination is obvious. Paragraph 4

of the same section was added by the Transportation Act

of 1920, and does give the Commission express authority

to order one carrier to share its existing terminal facilities

with another under defined circumstances. The clause in

question had to be eliminated from the old paragraph 2,

now paragraph 3, in order to make the latter harmonize

with the new paragraph 4.

In cases before the Commission and the courts involv-

ing paragraph 3, the question at issue was the power of

the Commission to issue an affirmative order requiring a

carrier to construct a track connection with another car-

rier and to interchange business with other carriers, and

it was held that the section of the Act under consider-

ation did clothe the Commission.with authority to make

orders of this character. It is a far cry, however, from

ordering a carrier to construct a track connecting up

existing facilities to ordering the construction of a new

union station costing several million dollars and requiring

joint use of several miles of main line.

If the Commission has the jurisdiction claimed for it

by the City under paragraph 3 of section 3, then the

specific provisions of paragraph 4 of section 3 relating

expressly to existing terminals are unnecessary and super-

fluous, for the greater power conferred by paragraph 3

as so construed would include the ‘ess power given by

paragraph 4.

The paragraph doubtless confers on the Commission

authority to require a connection to be made between two _

railroad lines, but that is very far from saying that it —

i

confers power on the Commission to require one carrier

to grant to another trackage rights or the right to operate

cars and trains over the other’s lines, and certainly there

is no specific provision in the paragraph that the Com-

mission shall have power to require the construction of

union stations.

It has been urged that in these proceedings, as re-

ported in 100 I. C. C. 421 (427), the Commission ex-

pressly assumed that this paragraph makes it the duty of

carriers to maintain union station facilities. Certainly

the Commission did not make that assumption in the

report. What the Commission said amounted merely

to this—conceding the claim that the paragraph makes

it the duty of the carrier to maintain union station facili-

ties, etc. That is, if for the sake of argument we allow

that such is the meaning of the paragraph, the Commis-

sion must look elsewhere for authority to require the

providing of such facilities.

The Commission, in its report of July, 1925 [49], re-

ferred [55] to United States v. Pennsylvania, 242 U. S.

208. In that case Mr. Justice McKenna says, at page

233:

“The United States and the Commission insist

that they have authority of cases for their two funda-

mental propositions, to-wit, (1) That it is the duty

of the railroad to furnish equipment for the trans-

portation of products, and (2) that the Commission

has the jurisdiction to enforce that duty.”

Here also counsel assert, first, that it is the duty of

the railroads to furnish a facility (a union station) and,

second, that the Commission has the jurisdiction to en-

force that duty. We submit that there is no difference

ae

in principle in the position of the Commission in the

tank car case and that of counsel for the City in the

instant case, and that therefore the language of Mr. Jus-

tice McKenna affords as complete an answer to counsel’s

contention as it did to the Commission’s contention in the

tank car case.

This paragraph 3 deals with the interchange of traffic

and of passengers between lines of railway. If it means

more than that, if it means that the Commission may

compel the Northern Pacific to add 2000 feet of trackage

to its team tracks at Dickenson, North Dakota, served

by no other line, and may require the C., M. & St. P.

at Frederick, South Dakota, served by no other line, to

build another freight house, and may require the Illinois

Central to enlarge its passenger station at Jackson, Mis-

sissippi—if it means all that—then these United States

have indeed been a land of neglected opportunity ever

since 1887, when the Commission was first clothed with

all these powers. For unless the paragraph is limited

to interchange facilities, it includes all that we have just

suggested and vastly more.

In July, 1888, in the case of Scofield v. Lake Shore,

2 I. C. C. 67, the Commission said, at page 76:

“A careful consideration of this provision of the

statute (namely, the paragraph here under consider-

ation) has brought us to the conclusion that it refers

only to facilities between connecting lines at terminal

points for the interchange of traffic and passengers.”

In United States v. D. L. & W., 40 Fed. 101, Judge

Wallace said, at page 103, referring to this same pro-

vision:

oll:

“This provision refers only to facilities between

connecting lines at terminal points for the inter-

change of traffic and passengers.”

This court, in Railroad Commission v. S. P., 264 U. S.

331, seems to have the same view of the meaning of this

paragraph, for it says, referring thereto and to para-

graph 4 of the same section:

“It is obvious from the foregoing that Congress

intended to place under the superintending and fos-

tering direction of the Interstate Commerce Com-

mission all increased facilities in the matter of dis-

tribution of cars and equipment and in joint termi-

nals in an exchange of interstate traffic and passen-

gers between railways so as to make it prompt and

continuous.”

Whatever powers the Commission may exercise to com-

pel the establishment of a union station must be predi-

cated and based upon the proposition that the interchange

of passengers, mail, baggage and express between the

three steam carriers at Los Angeles requires the estab-

lishment there of a union station. In other words, the

Commission may not found its jurisdiction on the esthetic

sense of an art loving city, nor on the harmonies and

symmetries of a civic center, nor on the desirability of a

union station to boost rents in a part of the city or town

where they have steadily declined, nor to effectuate the

elimination of grade crossings. The Commission’s busi-

ness is confined to transportation and specifically, so far

as this case is concerned, to the need of facilities for the

interchange of passengers. Now, strange to say, so

insignificant a factor is this interchange of passengers at

Los Angeles that the complaint filed by the City in the

proceedings before the Commission does not once refer

0 it, nor does the petition for final order.

—

pee

It was referred to by the Commission itself in its

report of July, 1925, as follows (100 I. C. C. 421, at

page 441):

“One of the principal arguments for a union sta-

tion as contrasted with several stations is that it

promotes to a greater extent the convenience of

passengers and makes possible the handling of bag-

gage, express and mail in one location.

“The proportion of travelers reaching Los An-

geles who transfer immediately to another railroad

is not as large as at many cities. Most travelers

who come into Los Angeles from a distance stop in

the city or its environs for a short time at least, and

for them a union station is less important. Appli-

cants presented estimates that 97 per cent of Los

Angeles passenger traffic is terminal rather than in-

terchange traffic. For the first ten days of June,

1923, the Santa Fe, the Salt Lake, and the South-

ern Pacific brought into Los Angeles 41,030 passen-

gers, of whom 824, or slightly over 2 per cent,

transferred from one station to another. This does

not include persons stopping over in Los Angeles,

passengers transferring at Los Angeles but traveling

on separate tickets to-and from that point, or passen-

gers transferring to and from the Pacific Electric.

“Since the war period the Santa Fe through serv-

ice between the east and San Francisco has been

much restricted. And its through service between

San Diego and Los Angeles in Southern California

and San Francisco has been discontinued. As a re-

sult, there are undoubtedly many more transfers

between the Santa Fe and the Southern Pacific at

Los Angeles than formerly. The California Com-

mission engineers’ investigations indicated that prob-

ably ten per cent of the passengers carried by the

steam lines normally transferred from one railroad

to another. This does not include passengers trans-

ferring to or from the Pacific Electric.”

It will be noted that the check referred to was made

in 1923, long after the close of the war and long after =

a

the discontinuance of passenger service between Los An-

geles and San Francisco by the Santa Fe. In fact, so

insignificant is the interchange of passengers at Los An-

geles that it has long since ceased to be suggested as a

possible basis for the Commission’s jurisdiction to order

a new union station.

It should be emphasized that this paragraph makes no

provision for apportionment by the Commission of the

expense of construction, of upkeep, of handling, nor for

determination of allowance for use of joint trackage, or

for regu.ation of such use. When the Congress contem-

plates any of these incidents it makes provision therefor.

See section 25 (4) (the Panama Canal Act as amended )

and paragraph 4 of section 3.

V.

Paragraph 4 of Section 3 Does Not Give the Com-

mission Power to Make the Desired Order.

We assume that counsel for respondent will urge in

this court as they did in the court below that the Com-

mission has jurisdiction under this paragraph to make

the order sought in this proceeding.

For the convenience of the court, the paragraph is re-

peated here:

“If the Commission finds it to be in the public

interest and to be practicable without substantially

impairing the ability of a carrier owning or entitled

to the enjoyment of terminal facilities to handle its

own business, it shall have power to require the use

of any such terminal facilities, including main line

track or tracks, for a reasonable distance outside

of such terminal of any carrier by another carrier

or other carriers on such terms and for such com-

pensation as the carriers affected may agree upon,

~

=

or, in the event of a failure to agree and the Com-

mission may fix as just and reasonable for the use

so required, to be ascertained on the principles con-

trolling compensation in condemnation proceedings.”

Counsels’ claim in this regard is based upon the alle-

gations of paragraph 18 of the petition for writ of man-

damus to the effect that one of the carriers, namely, The

Southern Pacific Company, is the owner of a portion of

the proposed site of the union station at the Plaza, al-

though it is admitted that the remainder of the lands

are privately owned. No claim is made, however (as

there could not be), that any station now exists upon

the premises or that there are any other terminal facilities

located thereon.

It seems to us too clear for argument that the lan-

guage of the paragraph relates only to the joint use of

a pre-existing terminal—and a terminal cannot consist

merely of a piece of land, however owned. It means

land so equipped with buildings or other facilities as to

be in actual use as a railway terminal. This is the con-

struction placed upon the paragraph by the Interstate

Commerce Commission in its first decision in the pro-

ceeding instituted by the respondent, reported in 101

I. C. C. Reports, at page 426, where it is said: “The

provision of section 3, paragraph 4, for joint use of

terminal facilities expressly covers only facilities exist-

ing when the requirement is made.” Since there is no

terminal on the premises owned by the Southern Pacific,

the Commission would have no authority to order that any

other carrier be permitted to use the same, much less to

require the owner and other carriers to construct a new

terminal facility thereon. |

——

But the respondent, due to the stress of necessity, has

gone even farther than this and has attempted to stretch

the language of the paragraph to give the Commission

authority to order the joint use of certain main line tracks

severally owned by the carriers independently of the use

of the terminals with which such main lines connect. In

the paragraph of the petition in question, it is affirma-

tively alleged in positive terms “That the carrying into

effect of the union passenger depot order requested by

the City of Los Angeles, as aforesaid, would require to

a substantial extent the joint use of existing railroad

terminal facilities in or adjacent to the City of Los An-

geles, including the following uses—the use by the South-

ern Pacific passenger trains from the north of the Santa

Fe main line tracks on the west banks of the Los An-

geles River from a point north of the North Broadway

Viaduct as far south as Aliso street: the use by the Salt

Lake passenger trains from Pasadena of the Santa Fe’s

tracks on the west bank of the river between the same

points; the use by the Salt Lake passenger trains from

the south of the Santa Fe’s tracks from Hobart Junc-

tion on the south to the site of the proposed union pas-

senger depot on the north, a total distance of approxi-

mately 3 miles; and the use by the Southern Pacific of the

Salt Lake’s tracks on the east bank of the Los Angeles

River from Alhambra avenue southerly to Butte street

and thence west over the Salt Lake’s Butte street line

to Alameda street.”

The tracks of the Salt Lake and the Santa Fe which

respondent says must be jointly used are main line tracks

leading to the passenger station sites of those two com-

panies, but no joint use is to be made of the stations

Mbemselves.

—,

—4g—

The Santa Fe tracks are to be used jointly by all the

carriers solely for the purpose of reaching the union sta-

tion site. The Salt Lake tracks are to be used by the

Southern Pacific solely for the purpose of transferring

its freight trains between the north and south sections of

the City. They are not be used as a part of any existing

facilities. Neither are the tracks in question tracks lo-

cated within the terminals themselves. They are, to use

the language of the paragraph, “main line track or tracks

outside of such terminals.” It is our contention that in

these circumstances the Commission has no power to

compel either the Santa Fe or the Salt Lake to share the

use of their tracks with the other carriers. Our position

in this regard is founded upon an analysis of the pro-

visions of the paragraph itself.

The Act does not define either “terminal” or “terminal

facilities,” but we do not think that any specific defini-

tion of such terms is required for the purposes of this

case. We take it that -there will be no dispute that

either a passenger terminal or a freight terminal ends

and the main track leading thereto begins at the point

where the yard tracks of the terminal begin to fan out

from the main line track. Certainly it cannot be success-

fully argued that the passenger terminai of the Santa

Fe on the west bank of the river in the vicinity of lfirst

street extends as far north as Aliso street, or that the

tracks of that company between Aliso and North Broad-

way viaduct, which it is contemplated shall be jointly used

by the Santa Fe, the Southern Pacific and the Salt Lake,

are anything other than main line tracks extending out-

side the terminal. The same is equally true respecting

the Salt Lake tracks on the east bank of the river.

—49—

Attention is called to the phrase in the paragraph read-

ing “to require the use of any such terminal facilities,

including main line track or tracks for a reasonable dis-

tance outside of such terminal.”

The word “including” as here used connotes that the

joint use of the main line track may be ordered when, and

only when, the terminal to which the track leads is to be

jointly used. It wholly negatives the construction which

counsel would seek to give it, that the Commission may

order either the terminal or the main line track to be used.

The object sought to be attained Ly the amendment of the

section is a matter of common knowledge. It was to

authorize the Commission to order that the joint use of

certain passenger and freight terminals which had been

put into effect while the railroads were under federal con-

trol should continue after the roads were returned to their

owners and to give the Commission power to put this prac-

tice into effect in other parts of the country in the future

if circumstances warranted. The joint use of the ter-

minals or terminal facilities, however, was the primary

purpose sought to be attained, and the joint use of main

line tracks leading thereto was but an incident to the use

of the terminal itself. The reason for including the use

of the main line as an incident to the terminal is obvious,

for had Congress limited the power of the Commission to

requiring the use of the terminal itself, and had not in-

cluded the main line leading to the terminal, the whole

purpose of the Act might have been defeated because the

terminal might well be so situated that it could not be

reached except by use of the main line of the owner

thereof.

ili

To place the interpretation on the amendment which

counsel for the City have urged would require the sub-

stitution of the word “or” for the word “including” so

that the clause would read “to require the use of any such

terminal facilities or main line track or tracks for a rea-

sonable distance outside of such terminal.” Had Con-

gress intended to give the Commission power to require

the joint use of, first, a terminal, or second, a main line

leading thereto, or, third, both, it would have been a simple

matter to do so. The clause would then have read, “to

require the use of any such terminal facilities or main

line track or tracks for a reasonable distance outside of

such terminal, or both.” But to give the paragraph the

construction which will be urged by counsel is to distort

its express language and to read into it something that is

not there.

We also say that under this paragraph the Commission

has not any power to require a carrier against its will to

make use of the terminal facilities of another carrier. In

other words, such power as the Commission has under

this paragraph may be exercised only when a carrier ap-

plies for an order authorizing it to use the terminal facili-

ties of another carrier. We are aware that the Commis-

sion in Hayes v. C. M. & St. P., 69 1. C. C. 489, held that

it did have authority at the instance of a third person to

require one carrier to use the facilities of another to the

extent of having its cars switched by the owner of the

terminal. We believe that the construction of the law

given that section by the majority opinion in that case is

erroneous and that Mr. Commissioner Hall’s views ex-

pressed in his dissenting opinion correctly stated the law.

No order was entered in the case, and so far as we know j

hin

‘to court has construed the provisions of the paragraph so

that a doubt at least exists as to the Commission’s power

to order a carrier against its will to nse the terminal of

another carrier.

We are confirmed in our view of the scope of this para-

graph by the consideration that to compel a carrier to ex-

tend its line by joint trackage right or otherwise, so as to

reach a terminal which it does not wish to enter would be

contrary to the fifth amendment as shown in earlier pages

of this brief.

VI.

To Hold That the Transportation Act of 1920 Has

Deprived States of Any Power That They May

Have Had to Do What Is Here Sought Is Not

Tantamount to Holding That the Power Has

Been Given to the Interstate Commerce Com-

mission.

It will doubtless be insisted that if the power, whatever

it was, “to require in appropriate cases the construction

and operation of union passenger stations” has been taken

away from the State Commission by the Transortation

Act of 1920 it must by the same act have been delegated

to the Interstate Commerce Commission. We submit that

this is not true either in law or in logic. By the enact-

ment of paragraph 4 of section 3 of the Interstate Com-

merce Act the Commission, if it finds it to be in the public

interests and to be practicable without substantially im-

pairing the ability of a carrier owning or entitled to the

enjoyment of terminal facilities in handling its business,

“shall have the power to require the use of any such ter-

minal facilities, including main line track or tracks for a

~.Teasonable distance outside of such terminal, of any car-

—52—

rier by any other carrier or carriers on such terms or for

such compensation as the carriers affected may agree

upon.” While this section of the act falls short of author-

izing the Federal Commission to order carriers to con-

struct a new union station at a new site not then owned

by them, at the same time it is our contention that by the

enactment of this law Congress has entered the field of

regulation respecting the establishment of union stations

to such an extent as to automatically terminate whatever

power the state may have had to deal with that subject.

When Congress acts on a particular matter relating to

Interstate Commerce and the State Statute is thereby

annulled, it is not necessary that the Federal Statute cover

the subject as fully and completely as did the state law.

If the state act covered the subject more completely or in

greater detail or with more particularity than does the

Federal Act, nevertheless the state act even in those fur-

ther details is at an end, and they are not implied or read

into the Federal Act. Thus in the case of Smithson v.

Atchison, 174 Cal. 148, the plaintiff, a minor, brought

suit under the Federal Employer’s Liability Act. Now

there was a State Statute in effect which prohibited the

employment of a minor under the age of 18 between 10

o'clock in the evening and 5 o’clock in the morning, and

the injury had occurred at about midnight. The trial

court instructed the jury that the state act was applicable

because it was not in conflict with the Federal law. The

upper court quoted from Prigg v. Penn, 16 Peters, 539

(617):

“* * * For if Congress have a constitutional

power to regulate a particular subject and they do

actually regulate it in a given manner and in a cer-

—53—

tain form it cannot be that the State Legislature

have a right to interfere, and, as it were, by way of

complement to the Legislation of Congress, to pre-

scribe additional regulations, and what they may

deem auxiliary provisions for the same purpose. In

such a case, the legislation of Congress, in what it

does prescribe, manifestly indicates that it does not

intend that there shall be any further legislation to

act upon the subject matter. Its silence as to what

it does not do is as expressive of what its intertion is

as the direct provision made by it. * * * The

will of Congress upon the whole subject is as clearly

established by what it had not declared as by what it

has expressed.”

This same passage is quoted in the very recent case of

Chesapeake, etc. v. Stapleton, decided by the court May

27, 1929, October Term, 1928, No. 133. This case cites

the Smithson case, supra, and reviews several other cases

involving the same principle.

In Nor. Pac. Ry. v. Washington, 222 U. S. 370, the

action was brought to enforce a penalty under the State

Statute prescribing the hours of iabor of railroad em-

ployees. About a month before the alleged violation of

the State Statute Congress had adopted the Hours of

Service Act which by its terms, however, did not go into

effect until the expiration of a year from its passage; and

it was held that the Federal Act although not yet effective

put an end to the enforcement of the state law.

Erie, etc. v. New York, 233 U. S. 671, involved the

same situation. The opinion Says at page 683:

“Regulation is not intended to be a mere wanton

exercise of power. It is a restriction upon the man-

agement of the railroads. It is induced by the public

interest or safety, and the hours of service law of

March 4, 1907, is the judgment of Congress of the

— a]

ae ver

extent of the restriction necessary. It admits of no

supplement. It is the prescribed measure of what is

necessary and sufficient for the public safety, and of

the cost and burden which the railroad must endure

to secure it.”

Kansas City v. Van Zant, 260 U. S. 459, involved a

construction of the provisions of the Hepburn Act relat-

ing to the issuance of passes. The Act made no provi-

sion in regard to limitation of liability toward persons

using passes, but the court said that free passes in their

entirety were taken charge of by the Act—not only their

permission and use but the limitations and conditions upon

their use. The court said that before the passage of the

Hepburn Act it had decided that a passenger who accepts

a free pass may exempt a carrier from responsibility for

negligence and that no public policy was violated thereby.

But that of course would not have been said before the

Hepburn Act was passed had the accident occurred in a

state which forbade limitation of liability toward holders

of free passes. After the passage of the Hepburn Act

the court upheld limitation of liability toward users of

passes issued under that Act. The court concluded as

tollows:

“The pass proceeded from the federal act. It is

controlled necessarily in its incidence and conse-

quences by the federal act to the exclusion of state

laws and state policies and such is the effect of de-

cided cases.”

By taking over a field of interstate commerce for fed-

eral regulation the Congress acts and must act on the

assumption that with respect to such regulation it is de-

sirable that there shall be uniformity throughout the

Tinited States and the only way to secure uniformity is to

eer ES

exclude state action within that field of’ regulation and

this not only as to the main subject of regulation but as to

all the incidents thereof.

Charleston, etc. v. Varnvill, 237 U. S. 597, involved the

question whether a penalty act of S. Carolina, making a

delivering carrier responsible for <he negligence of an

acting carrier resulting in loss or damage, conflicted with

the Carmack amendment. Mr. Justice Holmes in the

opinion said:

“When Congress has taken the particular subject

matter in hand, coincidence is as ineffective as oppo-

sition, and a State law is not to be declared a help

because it attempts to go farther than Congress has

seen fit to go.”

Before the enactment of the Federal Employer’s Liabil-

ity Act employees recovered under State laws if injured

while engaged in Interstate Commerce the same as any

other employees in any other business. Workmen’s com-

pensation acts would have applied to employees engaged

in interstate commerce as well as to others, but ever since

Congress occupied the field by its Act, an employee of a

rail carrier engaged in such commerce has his remedy only

under the Act, and only so far as Congress has provided

a remedy. If he is injured by the negligence of his em-

ployer or of a fellow employee he may recover, but other-

wise he has no remedy under the act because it provides

no remedy and he has no remedy under the State Work-

men’s Compensation law because the remedy under the

Federal Act is exclusive; and not expressly so but only

unpliedly.

New York Central v. Winfield, 244 U. S. 147.

~~

See also:

Erie v. People, 233 U. S. 671;

Sou. Ry. v. R. R. Commission, 236 U. S. 439;

Napier v. Atlantic Coast Line, 272 U. S. 605.

In the case of the Chusan, Fed. cases 2717, 5 Fed. cases

680, at 684, in an opinion by Mr. Justice Story we read:

“Congress, having power to regulate the whole

subject, regulates it as much by what it leaves with-

out any positive regulations, as by what it expressly

provides for. The will of Congress is equally ex-

pressed in both cases.”

See also:

Houston v. Moore, 5 Wheaton 1.

If there ever was power in the state (which we deny)

to do the things which are here sought it has not vanished

in the air, but it has been taken over by the Congress of

the United States which has found it advisable to delegate

to the Interstate Commerce Commission certain powers so

necessarily affecting and controlling such constructions

and creations as are here sought as to displace and ter-

minate any power in the state in the premises, and this

displacement and termination have been none the less ac-

complished although Congress has not seen fit to delegate

to its commission the specific power to order and compel

such construction and abandonment and joint uses as are

contemplated here.

Missouri Pacific v. Porter, 273 U. S. 341, involved a

provision of the Interstate Commerce Act relating to bills

of lading.

The court says no Act of Congress or order of the Com-

mission prescribed a form of bill of lading for the ship-

ment.

_——--

—57—

eee ® Section 2. paragraph 6, extends to all

carriers and to all transportation subject to the Act.

It prescribes a general rule applicable to all regula-

tions and practices affecting the form or substance of

bills of lading in order that they may be just and rea-

sonable, and the Commission is empowered and di-

rected to enforce the rule.

“The general regulation of the issuance, form and

substance of bills of lading is broad enough to cover

contractual provisions like the one involved in this

case exempting railroads from liability for loss of

shippers’ property by fire. Congress must be deemed

to have determined that the rule laid down and the

means provided to enforce it are sufficient and that

no other regulation is necessary. It has power to

regulate such commerce, and by its instrumentalities

is supreme, and as that power has been exerted state

laws have no application. They can not be applied

in co-incidence with, as complementary to, or as in

Opposition to federal enactments which disclose the

intention of Congress to enter a field of regulation

that is within its jurisdiction.”

In St. Louis v. Hesterly, 228 U. S. 702, it appears that

the Statutes of Arkansas gave a right of action for dam-

ages to a personal representative of one whose death was

caused by the negligence of another and also provided that

_ the personal representative of anyone who died as the

result of injuries so sustained could recover for the injury

and pain suffered by the decedent, as well as for the finan-

cial loss to the estate and expressly provided that such

cause of action for damages for pain and suffering should

survive the death of the injured person. The Act of

Congress of 1908 was entirely silent upon the question

whether or not the cause of action for injury, pain and

suffering would survive the death of the injured employee.

It was argued there that inasmuch as the Federal Statute

was silent upon the particular subject of the survival of

ey

such cause of action it left the State Statute on this sub-

ject unimpaired. It was contended that the State Statute

was not in conflict with but supplemented the Federal

Statute. But the court held that the omission of Con-

gress to provide for survival of this cause of action was

just as significant as were the express provisions which

were included in the act of Congress.

So here it cannot be argued that because the power of

the state whatever it was, has been taken away, that same

power must have been delegated to the Interstate Commis-

sion. On the contrary, the correct theory is that Con-

gress has occupied the field, thereby abrogating the power

of the states and delegating to the Interstate Commerce

Commission such powers and only such powers as Con-

gress saw fit to delegate in the field which it had occupied.

The situation is neither novel nor unusual, it occurs not

only under the Commerce clause but in other fields of the

Federal Government’s activities; it has been noted and

treated as something to be expected under our Federal

system in numerous cases ever since 1820.

VIL.

The Court in Railroad Commission v. Atchison, etc.,

264 U. S. 331, Did Not Hold That the Interstate

Commerce Commission Had the Jurisdiction Here

in Question.

In the first place, the jurisdiction of the Federal Com-

mission was not an issue in that case. The only question

was the power of the state and the Chief Justice so says

early in his opinion:

“The question in this case is whether the State

Railway Commission of California has power to re-

— §9—

quire the Southern Pacific Company, the Atchison,

Topeka and Santa Fe Railway Company, and the

Salt Lake and Los Angeles Railway Company to

build an interstate union depot in the city of Los

Angeles.”

That was indeed the question, and the only question in

that case. Anything in the opinion about the Interstate

Commerce Commission or its powers was said either

arguendo or as obiter dictum. The point decided, and the

only point decided by the court was that the State Com-

mission did not have power to make the order which it

attempted to make.

In the second place, no member of the Interstate Com-

merce Commission could find, either in the decision or in

the language of the Chief Justice’s opinion, any clear

declaration of jurisdiction in the Interstate Commission

to do what the appellant asked. Counsel for the City

seems to have admitted in the proceedings before the Com-

mission that this opinion left the situation uncertain. This

appears from Mr. Commissioner Eastman’s concurring

opinion where he says, at the close thereof (142 I. C. C.

489, at p. 501):

“Certainly a conclusion that we have no power to

enter an order is at least subject to much doubt. Cer-

tainly also the carriers propose to litigate this case as

long as and as vigorously as they can. The least pos-

sible delay in determining legal questions and arriv-

ing at an end of litigation will result, I believe, if we

as well as the State Commission enter an order. This

aspect of the matter was strongly and persuasively

presented by complainant.” (Italics ours.)

Mr. Commissioner Eastman also quoted from the opin-

ion of the Supreme Court as follows:

eee oe tee te ee et eee ee

_

“Our only question here is whether the power to

direct a new union station with its essential incidents

is committed exclusively tu the Interstate Commerce

Commission under the Act of 1920.”

—§0—

And Mr. Eastman says it cannot be said that this question

was clearly answered. Counsel for the City then thought

the law of the case was sufficiently uncertain to justify the

Commission in “taking a chance.” Doubtless they will

now insist that it is sufficiently certain to require the issu-

ance of a writ of mandamus.

As we read the decision, the reason given for holding

that the state of California could not make the order

which its Commission had tried to make was that Con-

gress, by the Interstate Commerce Act and especially the

Transportation Act 1920, had taken control of railroad

extensions and abandonments and railroad financing to

such an extent and degree as to make action by the Fed-

eral Commission imperative before such extensions, aban-

donments or financing could be accomplished. Whether

the powers of the Federal Commission with respect to

extensions are compulsive or permissive, or when com-

pulsive and when permissive, the opinion does not say.

Certainly no one yet has pointed to any word in the Acts

of Congress authorizing the Federal Commission to com-

pel the abandonment of Southern Pacific train service on

three miles of Alameda street in Los Angeles. The opin-

ion does not say that the Federal Commission has either

permissive or compulsive powers with respect to joint use

of main line or any othcr tracks except for the specific

purpose of reaching . »rminal under paragraph 4 of sec-

tion 3. The opinio: 3 not say or intimate that a com-

pany may be compelled to use the trackage of another

company for any purpose under any section of the Act.

—ti—

When the opinion speaks of the fostering guardianship

and control of the Commission it seems to suggest per-

missive rather than compulsive power. Certainly the

power is merely permissive over the issuing of securities,

construction of lines and abandonment of lines. The opin-

ion refers to the fact that no specific provision is made for

supervision of union stations by the Interstate Commerce

Commission.

The opinion with respect to paragraph 4 of section 3

says that the Act contemplates the compulsory sharing of

one company’s terminals with one or more companies as a

permanent arrangement. This would seem to indicate

that paragraph 4 of section 3 relates only to some existing

terminal which is to be jointly used by some other com-

pany and by the owner of the terminal. It says also it

gives the Interstate Commerce Commission the power

and duty where the public interest requires to make out

of what is the passenger and freight station of one inter-

state carrier a union station or depot. Where the opinion

a little further down says that the court thinks that

“means of control over installation of such new union

stations for interstate carriers is given to the Interstate

Commerce Commission” that seems rather to indicate per-

mission rather than compulsion, and where the opinion

says that a certificate of the Interstate Commerce Com-

mission is necessary in the construction of a new inter-

state union station involving a substantial extension of

tracks the language would seem to indicate that the Com-

mission “as no power to order in a union station because,

as we - e already said, if the Commission has that

power, it would be superfluous to issue certificates of con-

venience and necessity in connection with the work.

i

Then we come to the following language (100 I. C. C.

421, at p. 429): .

“But there is a great difference between such re-

location of tracks or local union station and what is

proposed here. The differences are more than that

of mere degree. They and their consequences are so

marked as to constitute a change in kind. They come

within paragraphs 18 to 21 of section 402 and re-

quire a certificate of the Interstate Commerce Com-

mission as a condition precedent to the validity of

any action by the carriers or of any order by the

State Commission.”

Now, if it was thought that the Interstate Commission

had power to make the order which respondent asks for,

why speak of an order by the State Commission?

Again, how is to be explained the following from page

347:

“To be sure this provision (as to issuance of securi-

ties) only becomes operative when securities have to

be issued and would not of itself prevent action by a

State Commission until_such securities are seen to be

necessary.”

Near the close the opinion remarks on the fact that the

City of Los Angeles had filed a petition with the Inter-

state Commerce Commission asking for an order to pro-

vide, maintain and use a union station; and says: “For

the reasons given, we think the course taken by the City

of Los Angeles was the correct one.” But the reasons

given as indicated by the next following sentence were

that before the extensions could be built or the joint use of

the trackage compelled there must be at least permissive

action by the Interstate Commerce Commission. So, it

says, until the Interstate Commerce Commission shall have

acted under paragraphs 18 to 21 of section 402 of the

—

—63—

Transportation Act the respondent railways cannot be re-

quired to provide a new interstate union station and to

extend their main tracks thereto. It does not say “until

the Interstate Commerce Commission shall have ordered

the carriers to provide the union station” but only “until

the Interstate Commerce Commission shall have acted”

under those three paragraphs. This language would just

as well sustain our position that the jurisdiction of the

Commission to issue certificates for extensions, joint use

and abandonments can only be set in motion or invoked

by the carriers themselves.

VIII.

The Ruling Made Against Its Own Jurisdiction by the

Interstate Commerce Commission Is Entitled to

Great Weight.

Pennoyer v. McConnaughty, 140 U. S. 1;

U. S. v. Cerecedo, etc., 209 U. S. 338;

U. S. v. Reynolds, 250 U. S. 104.

The case was heard twice by the Interstate Commerce

Commission and each time en banc. In the earlier report,

100 I. C. C. 412, ten of the 11 Commissioners partici-

pated and all of them were in agreement that the Com-

mission did not have jurisdiction to order the creation of

the union station. The names of the ten Commissioners

were: Atchison, McChord, Meyer, Hall, Eastman, Esch,

Campbell, Lewis, Cox, McManamy. Of these Mr. Esch

was a member of the House of Representatives at the

time when Transportation Act 1920 was enacted and for

some years before; was chairman of the committee in

charge of that bill in the House and it was generally

known as the Esch-Cummins Bill.

—64—

It will be noted that the three members of the Commis-

sion who dissented from the second report (142 I. C. C.

489), were among those who joined in the earlier report

in holding that the Commission did not have jurisdiction.

In the report following the second hearing we under-

stand that Commissioners Taylor, Brainerd and Porter

participated and these three new Commissioners all agree

that the Commission did not have jurisdiction to make the

order.

So we have at least ‘thirteen Commissioners holding

once that the Commission did not have jurisdiction. Sev-

eral Commissioners holding twice against jurisdiction, and

only three Commissioners holding first that the Commis-

sion did not have jurisdiction and later that it did have

jurisdiction.

Even these three admitted the doubtfulness of the right

which they at first denied and later affirmed. Their con-

curring opinion was written by Commissioner Eastman

(140). He first said (141):

“That the question of the Commission’s power was

not clearly answered by the opinion of the United

States Supreme Court.”

He then said (142):

“Whether or not we have the power to enter an

order is not free from doubt, but I believe that from

paragraph 21 of section 1 and paragraphs 3 and 4

of section 3 such power may be derived. Possibly

no one of these paragraphs fully covers the ground,

—65—

but they so supplement each other that when taken

together their individual deficiencies disappear.”

And further on (145) he said:

“My conclusion is that considering the various

statutory provisions together we probably have power

to enter the desired order. But this is not the only

reason for such action. Certainly a conclusion that

we have no power to enter an order is at least sub-

ject to much doubt; certainly also the carriers propose

to litigate this case as long and as vigorously as they

can. The least possible delay in determining legal

questions and arriving at an end of litigation will

result, I believe, if we as well as the State Commis-

sion enter an order. This aspect of the matter was

strongly and persuasively presented by complainants

in view of the manifest uncertainty as to what the

law is; it is a course which we are quite justified in

following, and the one which is most likely to result

in a needed clarification of the law.” (Italics ours. )

It would seem that if reasonable weight is given to the

construction placed upon the statute by the Commission

charged with the administration of the statute this is not

a case in which mandamus ought to issue, especially in

view of the well established rule that mandamus will not

issue in cases of doubtful right.

U. S. Ex Rel Arant v. Lane, 249 U. S. 367 (371).

Both upon the constitutional question arising under the

fifth amendment and upon the question of statutory con-

struction we respectfully submit that we have advanced

a

3

k

argument and authority requiring reversal of the judg- :

ment of the Court of Appeals. |

Dated September 2nd, 1929.

A. S. HALSTED,

C. W. Dursrow,

FRANK Karr,

Pac. Elec. Bldg., 6th and Main Sts.,

Los Angeles, California;

Rosert BRENNAN,

E. W. Camp,

560 South Main St.,

Los Angeles, California,

Amici Curiae.

oe

APPENDIX.

:

; ivil Code of California, Sec. 291.

The articles of incorporation of any railroad, wagon

road or telegraph organization must also state:

(1) The kind of road or telegraph intended to be con-

structed ;

(2) The place from and to which it is intended to be

run and all the intermediate branches;

(3) The estimated length of the road or telegraph

line ;

(4) That at least ten per cent of the capital stock sub-

scribed has been paid in to the treasury of the intended

corporation.

ya

Civil Code of California, Sec. 465, subdivision 4.

Every railroad corporation has power: (4) to lay out

its road not exceeding ten rods wide and to construct and

maintain the same with one or more tracks and with such

appendages and adjuncts as may be necessary for the con-

venient use of the same.

‘A

Civil Code of California, Sec. 465, subdivision 5.

Every railroad corporation has power: (5) to construct

their roads across, along or upon any stream of water,

water course, roadstead, bed, navigable stream, street,

avenue or highway, or across any railway, canal, ditch, or

~ flume which the route of its road intersects, crosses or

uns along, in such manner as to afford security for life

OOTP FERRY «NT He BT 0

OTTER FC LRA Ras

Pom ene me Im asthe!

7

and property; but the corporation shall restore the stream

or water course, road, street, avenue, highway, railroad,

‘canal, ditch or flume thus intersected to its former state

of usefulness as near as may be, or so that the railroad

shall not unnecessarily impair its usefulness or injure its

franchise.

a Ws

4.

Civil Code of California, Sec. 470.

No railroad corporation must use any street, alley or

highway or any of the land or water within any incor-

porated city or town unless the right to so use the same

is granted by a two-thirds vote of the town or city author-

ity from which the right must emanate.

5.

Statutes and Amendments to the Code of California 1925,

p. 1024, Chapter No. 5, Senate Current Resolution

No. 2, approving the charter of the City of Los

Angeles, state of California, voted for and ratified

by the qualified electors of said City of Los Angeles

upon a specia! municipal election held therein on the

6th day of May, 1924.

. Article I, Sec. 3, subdivision (8) (a), page 1032:

The city may grant franchises for fixed terms, permits

or privileges, for the construction and operation of plants

or works necessary or convenient for furnishing the city

and its inhabitants with transportation, communication,

terminal facilities, water, light, heat, power, refrigeration,

storage, or any other public utility or service; may pre-

scribe the terms and conditions of any such grant, and

may prescribe by ordinance approved by a vote of the

people the method of procedure for making such grant,

a ee

subject to the limitations elsewhere contained in this char-

ter; except that the Council shall adopt an ordinance which

shall establish the procedure for granting to the holder of

an existing franchise, any franchise required for an ex-

tension of facilities, ordered by the city, as authorized in

paragraph (c), of this subdivision, or for granting a new

franchise for a period not exceeding 10 years, to replace

a franchise about to expire, as authorized in paragraph

(d) of this subdivision; provided that such procedure

ordinance and every ordinance granting any such fran-

chise shall be subject to the referendum. * * *

(d) No fixed term franchise, permit or privilege for

the construction and operation of plants or works neces-

sary or convenient for the furnishing of the city and its

inhabitants with transportation, communication, terminal

facilities, water, light, heat, power, refriegration and stor-

age, or any other public service, shall be made for a period

exceeding twenty-one (21) years, except in the case of

franchises for the construction and operation of subways

and elevated railways, as hereinafter provided, and no

such grant for the extension of an existing utility, oper-

ating under a franchise granted by the city or county,

shall be made for a period beyond the expiration date of

the franchise, under which such utility or the portion of

such utility with which such extension is to be connected,

is held or operated, nor in any case for a period longer

than twenty-one (21) years. The city may, by ordinance,

five (5) years or less prior to the expiration of any fran-

chise, grant to the holder of such franchise a new franchise

to replace such franchise about to expire, such new fran-

chise to run for a period not to exceed ten (10) years

irom the date of expiration of the franchise it replaces.

sidelboiie

All such franchises so granted shall be in accordance with

the procedure ordinance at the time in force, and shall

carry all the conditions required in the original franchise.

No fixed term franchise, permit or privilege for the con-

struction or operation of elevated railways or subways

shall be granted for a period exceeding forty (40) years

for the original franchise, or for a period exceeding ten

(10) years for a franchise to replace a franchise about to

expire.

6.

Constitution of California, Art. XI, Sec. 19.

Any municipal corporation may establish and operate

public works for supplying its inhabitants with light,

water, power, heat, transportation, telephone service, or

other means of communication. Such works may be ac-

quired by original construction or by the purchase of

existing works, including their franchises, or both. Per-

sons or corporations may establish and operate works for

supplying the inhabitants with such services upon such

conditions and under such regulations as the municipality

may prescribe under its organic law on condition that the

municipal government shall have the right to regulate the

charges thereof. A municipal corporation may furnish

such service to inhabitants outside its boundaries, provided

that it shall not furnish any service to the inhabitants of

another municipality owning or operating works supply-

ing the same service to such inhabitants without the con-

sent of such other municipality, expressed by ordinance.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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