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. Quare 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 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. Argument for 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 U. S. 99; see Ex parte Young, 209 U. S. 148. If the validity of this law is sustained, the control and management of railroad 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 Preific Ry. 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 railroad 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 facilities. 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 concern, operated by private persons for private gain, and in no manner connected with the public or the railroad company. As to this see Mann v. Pere Marquette R. Co., 135 Michigan, 210, 213. In no event can property be taken, except for public use, nor then without just compensation. C., K. & N. R. R. Co. v. Hazels, 20 Nebraska, 354; Gottschalk v. C., B. & Q. R. Co., 14 Nebrasko, 550, 550, The taking of private property does not necessarily mean the taking of real ette, but applies as well to the taking of personal property as of real property, and where, as in the case at bar, the rally company is not only required to part with the possession of certain portions of its real estate, but also with its money, for the purpose of constructing and operating a rallad the taking of the money is as much inhibited by the Constitution as would be the physical taking of a portion of its right of way, 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 law. 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. 217 U.S. Argument for Plaintiff in Error. 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; Leeper 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; Texas & Pacific Ry. Co. v. Abilene Cotton Co., 204 U. S. 430, 452; Wilson v. The Blackbird, 2 Pet. 250. Argument for Defendants in Error. 217 U. S. The statute as construed by the state court. is 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 used in interstate commerce. Welton v. The State, 91 U. S. 280: Railroad Co. v. Husen, 95 U. S. 469; Hall v. DeCuir, 95 U. S. 489; Lake Co. v. Railroad Co., 130 U. S. 670; Railu ay Co. v. Interstate Comm. Comm., 162 U. S. 211; Copp v. Railroad Co., 43 La. Ann. 511; Dudley v. Mayhew, 3 N. Y. 9: The Moses Taylor, 4 Wall. 411; Gulf, Col. &c. Ry. Co. v. Hefey, 158 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 bref, for defendants in error. Mr. William P. Thompson for defendant in erro in No. 127; Mr. R. C. James and Mr. Norris Brown, with whom Mr. C. Gillespie was on the brief, for defendant in e ror in No. 128: The statute does not operate to take the property of the railway company within the meaning of the Constitution without its consent and without compensation, and is not in violation of the Fourteenth Amendment Wis&R. R. v. Jacobson, 179 U. S. 296; Olcott v. Supervisors, 16 Wall. 678. 684; Cherokee Nation v. Southern Kansas Ry Co. 135 U. S. 641; United States v. Joint Traffic Assn., 171 U. £ 505, 569 570; Lake Shore Ry. Co. v. Ohio, 173 U. S. 285, 261. 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 power enjoyed by every sovereignty on which rests the burden to care for the public health, safety and convenience. A common carrier doing an interstate as well as intrastate business is not above the reach of local police authority. Although to carry out the judament way require the exercise by the plaintiff in error of the power of eminent |