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Argument for Plaintiff in Error.

217 U.S.

MISSOURI PACIFIC RAILWAY COMPANY v. STATE

OF NEBRASKA.

SAME v. SAME EX REL. FARMERS' ELEVATOR

COMPANY

ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA.

Nos. 127, 128. Argued March 7, 1910.-Decided April 4, 1910.

There are constitutional limits to what can be required of the owners

of railroads under the police power. Requiring the expenditure of money takes property whatever may be

the ultimate return for the outlay. It is beyond the police power of a State to compel a railroad company

to put in switches at its own expense on the application of the owners of any elevator erected within a specified limit. It amounts to deprivation of property without due process of law; and so held as to the applications for such switches made by elevator companies in these cases under the statute of Nebraska requiring such switch

connections. Quære whether even if a statute requiring railroad companies to make

such switch connections at their own expense be construed as confined to such demands as are reasonable, it does not deprive the railroad company of its property without due process of law if it does not allow the company a hearing as to the reasonableness of the demand prior to compliance therewith, where, as in this case, failure

to comply involves heavy and continuing penalties. 81 Nebraska, 15, reversed.

The facts, which involve the constitutionality of a statute

a of the State of Nebraska requiring railroad companies to make switch connections with grain elevators under certain conditions, are stated in the opinion.

Mr. Balie P. Waggener, with whom Mr. James W. Orr was on the brief, for plaintiff in error:

The Nebraska statute in terms, and as construed by the state court, operated to take the property of the railway company for a private use, without its consent, and without com

217 U. S.

Argunent fur Plaintiff in Error.

pensation, in violation of the Fourteenth Amendment. C., M. & St. P. R. R. v. Minnesota, 134 U. S. 418; Hartford Ins. Co. v. Railroad Co., 175 D S. 96); see Ex parte Young, 209 U. S. 148.

If the validity of this law is sustained, the control and management of ailroad property will be turned over to every farmer who wants or imagines he wants side tracks to elevators.

The alternative arrangement of the section of the act in controversy was evidently made for the purpose of avoiding Missouri Fi cific my. Co. v: Nebraska, 164 U. S. 403, but it entirely fails so to do.

There is no question of rates to be made nor facilities to be furnished by the ruilroad company for the transportation of passengers or freight connected with the questions presented in this case. It is not a question of additional or better or different railroad facties. It is not intended that the railroad company should have any control over this elevator to aid in or facilitate the movement of freight. It is to be purely a private cor cern, operated hy private persons for private gain, and in no marrer connected with the public or the railroad company. As to this see vann v. Pere Marquette R. Co., 135 Michigan, 210, 213.

In no event can sperty be taken, except for public use, nor then without ¡list compensation. C., K. & N. R. R. Co. v. Hazels, 20 Nebraska. 354; Gottschalk v. C., B. & Q. R. Co., 14 Nebrask, 550, 550,

The taking i private property does not necessarily mean the taking 11:21 mp, but applies as well to the taking of personal pi perty as of real property, and where, as in the case at bar, the air, y company is not only required to part with the possession of certain portions of its real estate, but also with its in nay, for the purpose of constructing and operating & rind the taking of the money is as much inhibited by the constitutioa us would be the physical taking of a portion of stay right away, or its real estate. Welton v.

Argument for Plaintiff in Error.

217 U.S.

Dickson, 38 Nebraska, 767; Mich. Cent. R. R. Co. v. Collector, 100 U. S. 595; Monongahela Nav. Co. v. United States, 148 U. S. 324; Atlantic &c. Tel. Co. v. Chicago &c. R. R. Co., 6 Bissell (U. S.), 158.

The proposed taking of the right of way and moneys of the defendant company is for a private and not a public use. Re Manderson, 51 Fed. Rep. 503. In re Montgomery, 48 Fed. Rep. 896; and see C., B. & Q. R. R. Co. v. Chicago, 166-U. S. 233, 241.

The statute, as construed by the Supreme Court of Nebraska, is void, within L. & N. R. R. Co. v. Stock Yards, 212 U. S. 132. It is arbitrary and unreasonable denies to the railroad company the equal protection of the law; deprives it of its property, for private use, without compensation and without due process of låw. Interstate Comm. Comm. v. Railroad Co., 209 U. S. 118. The statute gives the company no discretion or voice whatever in the premises. It can appeal to no tribunal for relief. The fact that the company gives elevator switches to some does not give to every person the right to demand a switch of the railway company. The statute vests in the applicant the power to be the sole judge as to necessity and in that respect is arbitrary and illegal. Nor. Pac. R. R. v. Dustin, 142 U. S. 492; Railroad Co. v. Minnesota, 193 U. S. 53; and see Atlantic Coast Line v. N. C. Com., 206 U. S: 20.

The power to regulate is not the power to destroy, and limitation is not the equivalent of confiscation. Reagan v. Farmers' &c. Co., 154 U. S. 399; Railroad Commission Cases, 116 U. S. 331, and see also Connolly v. Union Sewer Pipe Co., 184 U. S. 540.

Every person in Nebraska, except a railway company, may exercise some discretion in the management of his business. Under this statute, the railway company has no discretion. See Hartford Ins. Co. v. Chicago Ry., 175 U. S. 91; Dodge v. Mission Township, 107 Fed. Rep. 827; McKinster v. Sager, 163 Indiana, 671; Loan Assn. v. Topeka, 20 Wall. 655.

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217 U.S.

Argument for Plaintiff in Error.

a

Not only must the purpose be public for which the land is taken, but the State must have a voice in the manner in which the public may use it. Board of Health v. Van Hoesen, 87 Michigan, 533; In re Burns, 155 N. Y. 23-49; Wisconsin Keely Co. v. Milwaukee Co., 95 Wisconsin, 153; Davidson v. New Orleans, 96 U. S. 97-102; Loan Assn. v. Topeka, 20 Wall. 655.

In operation and effect the statute is a delegation of the right and power of eminent domain, for a private purpose, and, without notice or hearing, permits and authorizes any "person or association” to take and appropriate the private property of the railroad company, without its consent, and without compensation.

This statute of Nebraska is an arbitrary and capricious exercise of power, and denies “the equal protection of the laws." In re Eureka Warehouse, 96 N. Y. 42-48; Weidenfeld

. v. Sugar &c. Co., 48 Fed. Rep. 615; Gaylord v. Chicago &c., 204 Illinois, 576; Jordan v. Woodward, 40 Maine, 317.

The statute, on its face, is class legislation, in this: That its operation as to elevators “hereafter" constructed is restricted to those having a capacity of fifteen thousand bushels. State v. Haun, 61 Kansas, 146; Cotting v. Godard, 183 U. S. 79; Lee per v. Texas, 139 U. S. 462.

Upon the conceded facts, the state court was without jurisdiction in the premises, and its order and judgment in violation of the Constitution and laws of the United States.

The statute is in direct conflict with the act of Congress. The one is arbitrary; makes no provision for notice, reasonableness or compensation. The other provides for a hearing and compensation. The one is extreme and populistic in all of its terms; the other is wise, reasonable and just. Congress has also provided the remedy for violation of the commission's orders, and designated the tribunal for its enforcement. In re Railway Co. v. Interstate Comm. Comm., 162 U. S. 940; Armour v. United States, 209 U. S. 78; Teras & Pacific Ry. Co. v. Abilene Cotton Co.; 204 U. S. 430, 452; Wilson v. The Blackbird, 2 Pet. 250.

2

Argument for Defendants in Error.

217 U.S.

The statute as construed by the etate court. ig an attempted regulation of the conduct of a carrier, subject to the provisions of the act of Congress, and of the instrumentalities and facilities of that carrier used and necessary to be sed in interstate commerce. Welton v. The State, 91 U.S. 280: Railroad Co. v. Husen, 95 U. S. 469; Hall v. DeCuir 05 U S. 489; Lake Co. v. Railroad Co., 130 U.S. 670; Rail cut', 'v. Interstate Comm. Comm., 162 U. S. 211; Copp v. Rail cad Co., 43 La. Ann. 511; Dudley v. Mayhew, 3 N. Y.9 The Muses Taylor, 4 Wall. 411; Gulf, Col. &c. Ry. Co. v. Hoften, 1,54 U. S. 99; Railroad Co. v. Haber, 169 U. S. 613-636.

Mr. R. C. James, Mr. William P. Thompson and Mr. Norris Brown, with whom Mr. C. Gillespie was on the brief, for de fondants in error.

Mr. William P. Thompson for defendant in eros in No. 127 ; Mr. R. Č. James and Mr. Norris Brown, with whom Mr. C. Gillespie was on the brief, for detendant in e ror in No. 128:

The statute does not operate to take the prop ty of the railway company within the meaning of the Costitution without its consent and without compensation, and is not in violation of the Fourteenth Amendment his method R. R. v. Jacobson, 179 U. S. 296; Olcott v. Supervisoma, 16 Wall. 678. 684; Cherokee Nation v. Southern Kanone Raum 135 U. S. 641; United States v. Joint Traffic Assn., 171 U 505, 569 570; Lake Shore Ry. Co. v. Ohin, 173 U. S. 285, 30,

The statute is valid by whatever test applied. Obviously, it is within the provisions of the state constitution. The act is a clear exercise of the police porror Sujours ly every sovereignty on which rests the burdar o cara for the public health, safety and convenience. A moron? normer doing an interstate as well as intrastate business is not above the reach of local police authority.

Although to carry out the descrito non All pruire the exercise by the plaintiff in error of thn rover of eminent

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