Detroit, Fort Wayne & Belle Isle Railway v. Osborn
This case involves the legality of an order of the commissioner of railroads of the state of Michigan, requiring the plaintiff in error and the Union Terminal Association of Detroit, at their own cost and expense, to maintain and operate safety gates and derailing and signaling appliances at Clark avenue, in said city. The order is inserted in the margin.

State of Michigan,

Office of the Commissioner of Railroads.*

In Re Application of the Common Council of the City of Detroit for Additional Protection at the Clark Avenue Crossing of the Tracks of the Union Terminal Association, in the City of Detroit, County of Wayne, Michigan.

Application having been received by the commissioner of railroads from the common council of the city of Detroit, Wayne county, Michigan, for additional protection at the Clark avenue crossing of the tracks of the Union Terminal Association in said city of Detroit, Wayne county, Michigan;

And after a personal inspection of the premises aforesaid, and after hearing representations of the city officials of the city of Detroit, as well as the arguments of the representatives of the said railroad company above named in relation thereto, and having decided after due deliberation that the public interests required said additional protection at the said crossing;

Now, therefore, by authority vested in me by law, it is hereby ordered:

That within sixty days from date hereof, you, the said Union Terminal Association Railway Company, cause to be constructed and thereafter operated and maintained safety gates, and derailing and signaling appliances to be operated day and night by a watchman from a tower. Said tower to be constructed at the best point of vision at the said crossing, and so constructed that the said operator may have plain view of movements of all trains or cars on both of the respective lines. Derailers shall be provided and placed in the tracks of the Fort Wayne & Belle Isle Railway, not less than 75 feet from clearance point of crossing, and signals shall be placed on the tracks of the Union Terminal Association at a distance of not less than 600 feet from said crossing. Said derailers and signals to be operated by levers in said tower, and such levers to be properly interlocked.

And it is further ordered that cost and expense of the construction, maintenance, and operation of said gates, tower, and derailing and signaling appliance shall be borne by the Union Terminal Association and the Fort Wayne & Belle Isle Railway Company, equally, share and share alike. This appliance to be constructed in accordance with plans to be submitted to and approved by the commissioner of railroads within thirty days from date hereof, and such appliance to be further approved by the commissioner of railroads before being put into use. This order is subject to modification at any time when in the opinion of the commissioner of railroads the public safety will be more effectually secured.

The order was made and issued under act 171 of the Public Acts of the State of 1893, § 5 of which provides as follows:

'The commissioner of railroads shall, as soon as possible after the passage of this act, examine the crossings of the tracks of railroads and street railroads then existing, and order such changes made in the manner of such crossings, or such safeguards for protection against accidents to be provided thereat, as in his judgment ought to be so made or provided; and shall apportion any expense incidental thereto between the companies affected, as he may deem just and reasonable.'

The statute and order are attacked as depriving the plaintiff in error of its property without due process of law, because compliance with the order 'will involve the expenditure of a large sum of money; first, in the construction of the said safety devices, and, if the same are constructed, in the maintenance and repair thereof.'

The plaintiff in error is a street railroad company incorporated under the laws of Michigan, and operates a railroad on certain streets of the city of Detroit, including Clark avenue. It succeeded in ownership and operation a company known as the Fort Street & Elmwood Avenue Railway, which was also a street railway corporation. The latter company was authorized to construct its road on Clark avenue, and under its grant did construct and operate its road thereon. 'At the time the track was constructed' (we quote from the opinion of the supreme court of the state) 'on Clark avenue there was no railroad, or highway, street, lane, or alley, or crossing of any kind over Clark avenue between Fort street and the river road. In 1882 or 1883 the Wabash Railroad constructed a single track across Clark avenue and across petitioner's tracks. Up to that time there had been no crossing over Clark avenue, between Fort street and the river road, of any kind,-either that of a railroad or a public highway, a private way, road, street, or alley. In the year 1893, or thereabouts, the union station was opened at the corner of Third and Fort streets, in Detroit; and since that time said station has been used jointly by the Wabash, the Detroit, Lansing, & Northern, the Flint, & Pere Marquette, the Detroit & Lima Northern, and the Canadian Pacific railroads as a terminal point, the tracks over Clark avenue at this point having been increased from one to three to accommodate the increased traffic. These tracks are used as approaches to the union station, and incoming and outgoing trains and cars of all the foregoing roads, except the Canadian Pacific Railroad pass over said tracks. There are thirty-eight regular daily passenger trains crossing Clark avenue upon these tracks. Besides this, the Canadian Pacific uses the station as an eastern terminus, connecting with the other roads for purposes of through east and west traffic.'

In 1893 the legislature of the state passed the act hereinbefore set out, and under its authority the defendant in error made the order complained of.

The case was submitted upon the petition of relator (plaintiff in error) and the answer of respondent (defendant in error), and the mandamus prayed for denied. 127 Mich. 219, 86 N. W. 842. This writ of error was then sued out.

Messrs. John C. Donnelly and Michael Brennan for plaintiff in error.

Messrs. Fred A. Maynard and Horace M. Oren for defendant in error.

Mr. Justice McKenna delivered the opinion of the court: 

Notes
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