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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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
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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.