New York Company v. Bristol
Statement by Mr. Chief Justice FULLER:

By section 1 of an act of the legislature of Connecticut approved June 19, 1889, entitled 'An act relating to grade crossings,' (Pub. Laws Conn. 1889, c. 220, p. 134,) it was provided:

'The selectment of any town, the mayor and common council of any city, the warden and burgesses of any borough within which a highway crosses or is crossed by a railroad, or the directors of any railroad company whose road crosses or is crossed by a highway may bring their petition in writing to the railroad commissioners therein alleging that public safety requires an alteration in such crossing, its approaches, the method of crossing, the location of the highway or crossing, the closing of a highway crossing and the substitution of another therefor, not at grade, or the removal of obstructions to the sight of such crossing, and praying that the same may be ordered; whereupon the railroad commissioners shall appoint a time and place for hearing the petition, and shall give such notice thereof as they judge reasonable to said petitioner, the railroad company, the municipalities in which such crossing is situated, and to the owners of the land adjoining such crossing and adjoining that part of the highway to be changed in grade; and after such notice and hearing, said commissioners shall determine what alterations, changes, or removals, if any, shall be made and by whom done; and if the aforesaid petition is brought by the directors of any railroad company, or in behalf of any railroad company, they shall order the expense of such alterations or removals, including the damages to any person whose land is taken, and the special damages which the owner of any land adjoining the public highway shall sustain by reason of any change in the grade of such highway, in consequence of any change, alteration, or removal ordered under the authority of this act, to be paid by the railroad company owning or operating the railroad in whose behalf the petition is brought; and in case said petition is brought by the selectmen of any town, the mayor and common council of any city, or the warden and burgesses of any borough, they may, if the highway affected by said determination was in existence when the railroad was constructed over it at grade, or if the layout of the highway was changed for the benefit of the railroad after the layout of the railroad, order an amount not exceeding one-quarter of the whole expense of such alteration, change, or removal, including the damages, as aforesaid, to be paid by the town, city, or borough in whose behalf the petition is brought, and the remainder of the expense shall be paid by the railroad company owning or operating the road which crosses such public highway; if, however, the highway affected by such order, last mentioned, has been constructed since the railroad which it crosses at grade, the railroad commissioners may order an amount not exceeding one-half of the whole expense of such alteration, change, or removal, including the damages, as aforesaid, to be paid by the town, city, or borough in whose behalf the application is brought, and the remainder of the expense shall be paid by the railroad company owning or operating the road which crosses such public highway. The directors of every railroad company which operates a railroad in this state shall remove or apply for the removal of at least one grade crossing each year for every sixty miles of road operated by it in this state, which crossings, so to be removed, shall be those which in the opinion of said directors are among the most dangerous ones upon the lines operated by it, and if the directors of any railroad company fail so to do, the railroad commissioners shall, if in their opinion the financial condition

of the company will warrant, order such crossing or crossings removed as in their opinion the said directors should have applied for the removal of under the above provisions, and the railroad commissioners in so doing shall proceed in all respects as to method of procedure and assessment of expense as if the said directors had voluntarily applied therefor.'

Section 2 related to alterations of highways, one-fourth of the expense of which was to be paid by the state. Appeal from any decision of the commissioners under the act was specifically provided for.

On September 2, 1890, the railroad commissioners of the state of Connecticut made an order reciting that whereas the directors of the New York & New England Railroad Company had failed to remove or apply for the removal during the year ending August 1, 1890, of any grade crossing of a highway which crossed or was crossed by their railroad, and whereas, in their opinion, said directors should have applied for the removal of the grade crossing of their road and the highway known as 'Main Street,' in the town of Bristol, and directing a hearing upon the matter, with notice to the railroad company, the town, and the owners of land adjoining that portion of the highway. The hearing was had on several days, from September 24, 1890, to February 11, 1891; and the commissioners, being of opinion that the financial condition of the company warranted the order, and that public safety required it, ordered the crossing removed, and determined and directed the alterations, changes, and removals to be made and done, and that they be executed by the railroad company at its sole expense, including damages occasioned thereby. The company appealed from this order to the superior court of the county of Hartford, the petition for appeal setting forth various grounds therefor, which, by voluntary amendment and by direction of the court, were reduced to these:

'(1) On the 2d day of March, 1891, the railroad commissioners of this state made an order to said company, requiring the removal of the grade crossing of its railroad in Main street in the town of Bristol, a full copy of which, marked 'Exhibit A,' is to be annexed hereto and filed herewith.

'(1a) Said company is not, and at the date of said order was not, of sufficient ability to execute the work of making the changes required by said order; and its financial condition does not, and did not then, warrant the making of such an order.'

'(11) Said company cannot meet the expenses of executing the said order of the railroad commissioners, and have enough income left to pay its fixed charges, including interest on its bonds issued as aforesaid and outstanding, and the dividends on its preferred stock issued as aforesaid, and maintain its railroad in good and proper condition.

'(12) If the law under which the proceedings were had, as set forth in said order, justifies said order, then it and said law are void, as violating both the constitution of the United States and the constitution of the state of Connecticut, in that said order impairs the obligation of the contracts made by said company with the holders of its bonds and preferred stock, by making it impossible for said company to pay the interest on their bonds and dividends on their preferred stock as agreed between them and said company, and yet maintain and operate its railroad efficiently, and, further, in that it takes the property of said company without just compensation and without due process of law, and denies to it the equal protection of the laws.' '(16) Said order, herein appealed from, was not an order necessary for the safety of the public.

'(17) Said order should have been so made, and proceedings leading up thereto had, if at all, under section 2 of the act of 1889, as that one-quarter of the expense of its execution should be paid by the state.'

Paragraph 1a was substituted for paragraphs 2 to 10, inclusive, struck out by the court as mere statements of evidence.

The court, upon hearing the parties,-the evidence not being preserved in the record, but it appearing that evidence was adduced by the company as to its earnings, expenses, and property, made findings of fact that the railroad company was of sufficient ability to execute, and that the financial condition of the company warranted, the order of the commissioners for the removal of the grade crossing in question; that the crossing was among the most dangerous upon the line of the railroad; and that the safety of the public required its removal,-and affirmed the order appealed from. Thereupon the company prosecuted an appeal to the supreme court of errors of Connecticut and assigned various errors to the rulings of the superior court in amendment of the petition on appeal, and in the exclusion and admission of evidence, and afterwards amended its reasons for appeal by adding the following:

'(8) Because the court erred in holding that the statute under which said proceedings were had, as set forth in said order of the railroad commissioners, justified said order, instead of holding that it was no law, because contrary to the constitution of this state, in that it takes the property of the plaintiff without just compensation and without due process of law.

'(9) Because the court erred in holding that the statute under which said proceedings were had, as set forth in said order of the railroad commissioners, justified said order, and in therefore affirming said order, and overruling the plaintiff's claim that said statute was void as violating the constitution of the United States, in that it impaired the obligation of the contracts made by said company with the holders of its bonds and preferred stock, by making it impossible for said company to pay the interest on its bonds, and dividends on its preferred stock, as agreed between them and said company, and yet maintain and operate its railroad efficiently; and, further, in that it took the property of said company without due process of law, and denied to it the equal protection of the law.

'(10) Because the court erred in overruling the claim of the plaintiff, in the twelfth paragraph of its petition of appeal, that said statute was void, and was no justification of said order, under the constitution of the United States and the fourteenth amendment thereof.

'(11) Because the judgment does not meet the issues. There is no general finding of the issues against the plaintiff, and no finding as to issues raised in paragraphs 11 and 17.'

The supreme court of errors of Connecticut decided that there was no error in the judgment appealed from, (62 Conn. 527, 26 Atl. 122,) and thereupon a writ of error was allowed to this court, and errors assigned, as follows:

'(1) The said court erred in holding that the statute under which were had the proceedings as set forth in the order of the railroad commissioners exemplified in the record of the case justified sais order, and in affirming the judgment of the superior court in and for Hartford county, affirming said order, and in overruling plaintiff's claim that said statute was void as violating the constitution of the United States, in that it impaired the obligation of the contracts made by said company with the holders of its bonds and preferred stock, by making it impossible for said company to pay the interest on its bonds and dividends on its preferred stock, as agreed between them and said company, and yet maintain and operate its railroad efficiently; and, further, in that it took the properrty of the company without due process of law, and denied to it the equal protection of the law.

'(2) The said court erred in overruling the calim of the plaintiff in error in the twelfth paragraph of its petition of appeal from the railroad commissioners to the supreme court, as set forth in the record, that said statute was void, and was no justification on said order, under the constitution of the United States and the fourteenth amendment thereof.' Chas. E. Perkins and Edeward D. Robbins for plaintiff.

John J. Jennings and H. C. Robinson, for defendants.

[Argument of Counsel from pages 562-565 intentionally omitted]

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court. 

Notes
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