DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY v. TOWN OF MORRISTOWN ET AL.
No. 147
Supreme Court of the United States
Argued January 6, 9, 1928.—Decided February 20, 1928.
276 U.S. 182
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.
Judgment affirmed.
The railroad company constructed a driveway over its station grounds to connect with the streets of the town. The railroad and the town agreed that the driveway should be kept open and that the town should exercise upon the station grounds, etc., all necessary police powers for the regulation of traffic and for the enforcement of the railroad‘s rules and regulations. The railroad granted a
- The taking of private property for public use is against the common right, and authority so to do must be clearly expressed. The agreement does not empower the town to establish a public hackstand on the company‘s land. P. 192.
- Assuming that the creation of a рublic hackstand upon the station grounds would be a proper exertion of the police power, the due process clause safeguards to the owner of the land just compensation for the use of its property. P. 193.
- As against those not using it for purposes of transportation, the railroad is private property in every legal sense, and if any part of its land is capable of use that does not interfere with discharge of its obligations as a carrier, the railroad has the right to use or permit others so to use it for any lawful purpose. P. 194.
- A railroad is not bound to permit persons having no business with it to enter its trains, station or grounds to solicit trade or patronage for themselves, and the grant of such privilege to one does not give rise to any duty to others. P. 194.
- To compel the use of railroad station grounds for public hackstands without compensation is to take them in violation of the due process clause of the Fourteenth Amendment. P. 195.
14 F. (2d) 257, reversed; District Court affirmed.
CERTIORARI, 273 U. S. 686, to a decree of the Circuit Court of Appeals which reversed a decree of permanent injunction, and directed dismissal of the bill in a suit by the railroad against the town and a number of taxicab men, to prevent the use of its land for the parking of vehicles and enjoin the enforcement of an ordinance designating part of it as a public haсkstand.
Mr. John W. Davis, with whom Mr. M. M. Stallman was on the brief, for petitioner.
Sections 1, 2 and 3 of the ordinance are repugnant to the
While the municipality has not in terms deprived petitioner of the title to its lands in establishing the hack stand thereon and in prohibiting the use of other parts of its property for parking space for private vehicles and taxicabs, it has deprived petitioner of the right to use the land according to its оwn plans, purposes and requirements. The property of a railroad company cannot be taken or appropriated, under the guise of regulation, except for a purpose within the statutory duties of the carrier. Great Northern Rwy. v. Minnesota, supra; Great Northern Rwy. v. Cahill, 253 U. S. 71.
Taxicab service is no part of the business of petitioner, and it cannot be compelled to furnish land for a public hack stand under the guise of an exercise of the police power. Great Northern Rwy. v. Minnesota, supra; Id. v. Cahill, supra.
As to the cab drivers, they have no right to make use of the company‘s premises, and such a right cannot be conferred upon them by a municipal ordinance. Donovan v. Pennsylvania Co., 199 U. S. 279; Thompson‘s Express Co. v. Mount, 91 N. J. Eq. 497. Cf. Welsh v. Morristown, 98 N. J. L. 630. Munn v. Illinois, 94 U. S. 113; Union Dry Goods Co. v. Georgia Public Service Corp‘n, 248 U. S. 372; Producers Transportation Co. v. R. R. Comm., 251 U. S. 228; and Wolff v. Court of Industrial Relations, 262 U. S. 522, distinguished.
As the railroad company is not required to furnish taxicab fаcilities, and no charge for such facilities is impliedly included in the rates of fare, and as no compensation is provided for the use of the land devoted to parking of taxicabs, the situation comes squarely within the opinion in Banton v. Belt Line Rwy., 268 U. S. 413. See also, Pennsylvania Coal Co. v. Mahon, 260 U. S. 393.
The ordinance cannot be upheld as securing the performance of a legal duty owing by the railroad company to its passengers, i. e., as a regulation of transportation. There is nothing in Welsh v. Morristown, 98 N. J. L. 630, that casts any doubt on the proposition that the town was without jurisdiction under the local law.
The contract of 1912 did not operate to grant to or confer upon the municipality the right to exclude the petitioner from thе use of its own land and to establish thereon a public hackstand against its express objection. Such regulation, however, is appropriate only over a public highway and any intent to dedicate the driveway here in question is negatived by the express terms of the contract. It is well settled under New Jersey law that in the face of an express disclaimer of an intent to dedicate, mere sufferance by an owner of general public user of his premises is insufficient to establish a dedication. Wood v. Hurd, 34 N. J. L. 87. See also, Irwin v. Dixion, 9 How. 10; McKey v. Hyde Park, 134 U. S. 84; Folkestone Corp‘n v. Brockman, A. C. 338.
Mr. Conover English, with whom Messrs. R. H. McCarter and N. C. Toms were on the brief, for respondents.
The establishment of a parking place on the driveway in question was not contrary to the
The property being devoted to a public use and so clothed with a public interest, is subject to reasonable regulation. Munn v. Illinois, 94 U. S. 113; Chicago etc. R. R. v. Nebraska, 170 U. S. 57; Noble State Bank v. Haskell, 219 U. S. 104; Missouri Pacific Rwy. v. Omaha, 235 U. S. 121; Union Dry Goods Co. v. Georgia Public Service Corp‘n, 248 U. S. 372; Producers Transportation Co. v. R. R. Comm., 251 U. S. 228; Block v. Hirsh, 256 U. S. 135; Milheim v. Moffat Tunnel Dist., 262 U. S. 710.
The railroad by its cоntract consented to a taking for the purpose of regulating traffic when it opened its driveway to public traffic and permitted the town to exercise all necessary police power upon it to regulate that traffic. Atlantic Coast Line v. Goldsboro, 232 U. S. 548; Welsh v. Morristown, 98 N. J. L. 630.
The general rule is that property may be regulated to a certain extent to protect the public health, safety, welfare, comfort or morals from dangers threatened. It is only when the regulation goes too far that it will be recognized as a taking. Penna. Coal Co. v. Mahon, 260 U. S. 393.
The town under its police power has power to regulate traffic by ordinance, including the establishment of cab stands. Donovan v. Pennsylvania Co., 199 U. S. 279. See also, Swan v. Mayor of Baltimore, 132 Md. 256; Dillon on Municipal Corporations, Vol. 3 (5th ed.), § 1167.
Nor does the contract between Welsh and the railroad company militate against the power of the town to pass
The lands taken are devoted to a public use. The driveway constitutes the only street approach to the easterly side of the railroad station and is so clothed with a public interest that it is subject to reasonable regulation with respect to the traffic thereon.
The ordinance was passed pursuant to authority delegated to the town by the legislature of the State and as such it is a state law within the meaning of the Constitution. Atlantic Coast Line v. Goldsboro, 232 U. S. 548; Reinman v. Little Rock, 237 U. S. 171.
The railroad has to a certain extent voluntarily enlarged its duties to include a taxicab service by the contract it made with Welsh. The railroad grants special privileges to Welsh in its station, building and grounds, and receives in return 10% of “the gross receipts from all business to and from said Morristown Station.”
The town had the right to pass the ordinance of October 22, 1924, because of the express agreement of the railroad company set forth in the contract of 1912. The establishment of a parking place by the ordinance is within the terms of the contract in that it constitutes a regulation of foot and vehicular traffic at the station. See Masterson v. Short, 30 N. Y. 241; The Taxicab Cases, 143 N. Y. Supp. 279; Waldorf-Astoria Hotel Co. v. New York, 212 N. Y. 97.
The parties to the suit, namely, thе railroad company and the town, by their conduct over a period of ten years practically have construed the contract to empower the town to establish a parking place on the driveway in question. Van Dyke v. Anderson, 83 N. J. Eq. 568; Dennis v. Jones, 44 N. J. Eq. 513; Clampitt v. Doyle, 73 N. J. Eq. 678; Faulkner v. Wassmer, 77 N. J. Eq. 537.
MR. JUSTICE BUTLER delivered the opinion of the Court.
October 30, 1924, petitioner brought this suit in the district court of New Jersey against the Town of Morristown and sixteen operators of taxicabs to restrain the town from enforcing an ordinance establishing a public hackstand in a driveway on petitioner‘s station grounds, to prevent the use of its land for parking of taxicabs and other vehicles and to restrain the individual defendants from going on its premises to solicit patronage and from using its grounds as a hackstand.
The Morris and Essex Railroad Company owns the railroad and petitioner operates it as lessee in perpetuity. September 24, 1912, an agreement was made between the town and the companies providing for the elevation of the tracks in order to eliminate certain grade crossings. The agreement was fully performed. The tracks run north and south through station grounds of somewhat irregular shape containing about four acres. The main station building is on the west side of the tracks and on the east side there is a platform roofed over, called the shelter house. The town agreed to lay out and construct a new street extending to the station grounds on the east side of the tracks. The companies agreed to “dedicate any lands owned by them necessary for the laying out of such new street.” Petitioner constructed and maintains driveways within its grounds, one of which passes under the tracks along the north boundary and thence south parallel to the tracks and near the east side of the shelter
Passengers arriving on trains from New York get off on the east side and leave the station grounds by the driveway described. Prior to 1922, operators of taxicabs were accustomed to drive into the grounds to meet these trains and there solicit patronage. It is a matter of common knowledge that such competition for the transportation of passengers and their baggage from railway stations is liable, if not indeed certain, to be attended by crowding together of cabmen, confusion, noisy solicitations, importunities and contentions resulting to the annoyance and disadvantage of those sought to be served.** And the record shows that these or similar abuses prevailed or were liable to occur at the Morristown station. December
The petitioner brought this suit claiming that the enforcement of the ordinance would take its property for municipal purposes without due process of law in contravention of the
After trial, the district court entered its final decree declaring the ordinance repugnant to the
The Circuit Court of Appeals held that the track elevation agreement authorized the town to establish a public hack stand on the driveway in the station grounds. The principal purposes of that agreement was to eliminate grade crossings; regulation of traffic to and from the station was incidental. The town has not acquired by purchase or eminеnt domain any part of petitioner‘s land or the right to establish a public hack stand there. It is not claimed that the agreement expressly authorizes the town to make such an appropriation of petitioner‘s land. And there is nothing from which such a grant may be implied. The intention of the parties is plainly expressed. There is an express dedication by the companies of their lands within the new street opened by the town outside the station grounds. But, there being no such purpose in respect of land within the grounds, the agreement declares
While petitioner owed its passengers the duty of providing a suitable way for them to reach and leave its station, it was not bound to allow cabmen or others to enter upon or use any part of its buildings or grounds to wait for fares or to solicit patronage. Donovan v. Pennsylvania Company, 199 U. S. 279, 295. Thompson‘s Express Co. v. Mount, 91 N. J. Eq. 497. Its agreement to keep the driveway “open for traffice to and from the station” did not add to its obligations or enlarge the powers of the town. Respondents put much reliance upon the clause providing that the town “may and shall exercise all necessary police powers” in and upon the station grounds “for the purpose of regulating traffic” at the station and for the enforcement of petitioner‘s rules and regulations in respect thereto. But it is to be borne in mind that the taking of private property for public use is deemed to be against the common right and authority so to do must be clearly expressed. Western Union Tel. Co. v. Penn. R. R., 195 U. S. 540, 569. Lewis on Eminent Domain (3rd ed.), § 371. Inhabitants of Springfield v. Connecticut River Railroad Co., 4 Cush. 63, 69-72. Holyoke Company v. Lyman, 15 Wall. 500, 507. Cf. Richmond v. Southern Bell Telephone Co., 174 U. S. 761, 777. The provision relied on is merely petitioner‘s authorization and the town‘s agreement that the municipal power of police shall be exerted for the purpose of regulating, and to carry intо effect petitioner‘s rules in respect of, the traffic at the station. The agreement does not empower the town so to appropriate petitioner‘s land.
Is the provision of the ordinance of October 22, 1924, declaring a part of the driveway to be a public hack stand a valid exercise of the police power? We assume that by the laws of the State the town is authorized to regulate traffic and to establish public hack stands in its streets and other public places. It does not claim the power to take or appropriate private property for such a purpose without giving the owner just compеnsation, but it contends that the establishing of this hack stand “was justified under the police power by the public necessities for the safety, welfare and comfort of the public using the driveway” and that it does not take private property for public use without compensation “because the lands taken are devoted to a public use.” But, assuming that under the circumstances the creation of the public hack stand would be a proper exertion of the police power, it does not follow that the due process clause of the
As against those not using it for the purpose of transportation, petitioner‘s railroad is private property in every legal sense. The driveway in question is owned and held by petitioner in the same right and stands on the same footing as its other facilities. Its primary purpose is to provide means of ingress and egress for patrons and others having business with the petitioner. But, if any part of the land in the driveway is capable of other use that does not interfere with the discharge of its obligations as a carrier, petitioner as an incident of its ownership and in order to make prоfit for itself has a right to use or permit others to use such land for any lawful purpose. Donovan v. Pennsylvania Company, supra, 294.
There was no duty upon petitioner to accord to other taxicabmen the use of its lands simply because it had granted Welsh the privileges specified in its contract with him. Petitioner is not bound to permit persons having no business with it to enter its trains, stations or grounds to solicit trade or patronage for themselves; they have no right to use its property to carry on their own business. Petitioner had no contract relations with taxicabmen other than Welsh and owed them no duty because they did not have any business with it. The enforcement of the ordinance here assailed would operate to deprive petitioner of the use of the land in question and hand it over to be used as a public hack stand by the individual defendants and others. As to them, and so far as concerns its use as a public hack stand, the driveway was petitioner‘s private property and could not be so appropriated in whole or in part except upon the payment of compensation.
Under the guise of regulation, the town cannot require any part of the driveway to be used in a service that peti-
The decree of the Circuit Court of Appeals is reversed, and the decree of the district court is affirmed.
MR. JUSTICE BRANDEIS, concurring in part.
I agree that the decree of the Circuit Court of Appeals, directing a dismissal of the Railroad‘s bill, should be reversed. But I think that the decree of the District Court requires serious modification. That decree ordered among other things, “that the Town of Morristown, do desist and refrain, and is hereby forever restrained and enjoined by the attempted enforcement of said ordinance or otherwise, from in any manner interfering with or hindering or obstructing the complainant, the Delaware, Lackawanna & Western Railroad Company, in the occupation, use or control of its said station grounds, or in regulating the place, manner or time in which public or private vehicles going to and from said station grounds shall enter, stand or wait thereon or depart from the same.” This part of the decree is, in my opinion, inconsistent with the terms of the contract between the Railroad and the town, with the decision of the highest court of the State construing the same, Welsh v. Morristown, 98 N. J. L. 630, affirmed sub
The situation which confronted the town authorities was this: About 3,000 passengers are handled in and out of the station each day. Continuously, for nearly ten years after the elimination of the grade crossings, cabs had, under the direction of the town authorities and with the acquiescence of the Railroad, parked at the place later assigned by the ordinance here in question. Then, in 1922, arose the controversy which gave rise to the Welsh case and to the case at bar. The bulk of the traffic passing through the station is composed of persons commuting to Newark and New York. Accordingly, the demand for taxicabs at the station is largely concentrated in the late afternoon hours. There are forty-two licensed cabs in Morristown. About twenty-five of them were accustomed to park at the station, at various times of the day. Presumably most of them were available for service at the rush hour in the late afternoon. Welsh, for whom the Railroad asserts the exclusive privilege of using the driveway as a hack stand, has only three licensed cabs. Obviоusly, these are insufficient to give an adequate service. It is true that Welsh made application for additional licenses, and that these have been denied by the town authorities. But the testimony shows that the authorities were of the opinion that there were already more taxicabs in the town than could be operated profitably. No new license had been granted to any one since a date preceding Welsh‘s application; and no cabman had a license to operate more than three cabs.
The Railroad presented this alternative to the town: “Either grant to Welsh licenses sufficient in number to enable him to supply the needs of all passengers arriving at the station, or submit to a denial to such passengers of
But the injunction granted by the District Court was so broad as to prevent the town from making, by future ordinance, provisions which it may deem necessary to assure to its inhabitants adequate cab facilities. While the contract between the town and the Railroad did not make the driveway a public highway, it did not restrict
In these days, the ability of the traveller to obtain conveniently, upon reaching the street door of the station, a taxicab to convey him and his hand-baggage to his ultimate destination, is an essential of adequate rail transportation. The duties of a rail carrier are not necessarily limited to transporting freight and passengers to and from its stations. It must, in connection with its stations, provide adequately for ingress and for egress. And if it does not itself provide the facilities essential for the convenient removal of freight and passengers from the station, it may be required to let others provide them. That a railroad‘s obligations may be extendеd beyond its rails, is settled by numerous decisions of this Court. Atlantic Coast Line R. R. Co. v. Corporation Commission, 206 U. S. 1, 21-22; Chicago, Milwaukee & St. Paul Ry. Co. v. Iowa, 233 U. S. 334; Michigan Central R. R. Co. v. Railroad Commission, 236 U. S. 615; Chicago & Northwestern Ry. Co. v. Ochs, 249 U. S. 416; Lake Erie & Western R. R. Co. v. Public Utilities Commission, 249 U. S. 422. A State may require a railroad to construct stations. Minneapolis & St. Louis R. R. Co. v. Minnesota, 193 U. S. 53. It may compel the building of a crossing for the convenience of shippers in removing freight. Norfolk & Western Ry. Co. v. Public Service Commission, 265 U. S. 70, 74. Its power to require adequate provision for carrying passengers to their ultimate destination rests on the same basis. Compare Pennsylvania R. R. Co. v. Knight, 192 U. S. 21, 26.
The Lackawanna Railroad recognized the importance of proper cab service. It undertook to provide it by the contract with Welsh. But Welsh was in no position to furnish adequate service. He had only three licensed cabs. The Railroad answers that Welsh agreed by his contract with it to supply as many cabs as were needed and that, but for the refusal of the town to grant him more licenses, he would have supplied the requisite number. The town was not obliged to issue additional licenses to Welsh. Its refusal to do so was not arbitrary or unreasonable. The ground of its refusal was that the granting of additional licenses would ruin the business of the established cabmen who had long been engaged in serving its inhabitants, and thus would impair the cab service of the general public throughout the town. The principle on which the town acted is one that is general in motor vehicle regulation today.1 It is one that has been ap-
The record shows that the service which Welsh can furnish is inadequate, that to grant him sufficient licenses to enable him to furnish such service would impair taxi service throughout the town, and that a taxi-stand located elsewhere than on the driveway does not satisfy the needs of travellers leaving the station. If, under these circumstances, the town should pass an ordinance establishing,
passing upon applications for certificates of convenience and necessity, and by courts in reviewing their orders, although there is not a specific direction in the statute. In the following cases the orders of commissions granting certificates of convenience and necessity were set aside on the ground that it did not sufficiently appear that existing facilities were inadequate: West Suburban Transportation Co. v. Chicago & West Towns Ry. Co., 309 Ill. 87; Choate v. Commerce Commission, 309 III. 248; Superior Motor Bus Co. v. Community Motor Bus Co., 320 Ill. 175; Cooper v. McWilliams & Robinson, 298 S. W. 961 (Ky.); Cincinnati Traction Co. v. Public Utilities Commission, 112 Ohio St. 699; East End Traction Co. v. Public Utilities Commission, 115 Ohio St. 119; Columbus Ry., Power & Light Co. v. Public Utilities Commission, 116 Ohio St. 36; Chicago, Rock Island & Pacific Ry. Co. v. State, 123 Okla. 190. In Red Star Transportation Co. v. Red Dot Coach Lines, 220 Ky. 424; McClain v. Public Utilities Commission, 110 Ohio St. 1; and Abbott v. Public Utilities Commission, 136 Atl. 490 (R. I.), orders denying certificates were sustained, on the ground that the proposed operation would have impaired adequate transportation facilities already established. The same principles apply with regard to municipal regulation of jitney busses. Cloe v. State, 209 Ala. 544, 545-546; Birmingham Interurban Taxicab Service Corp. v. McLendon, 210 Ala. 525; State v. City of Spokane, 109 Wash. 360. That a railroad has no preferred claim to the grant of a certificate, see Northern Pacific Ry. Co. v. Department of Public Works, 256 Pac. 333 (Wash.). Compare Baltimore & Ohio R. R. Co. v. State Road Commission, 139 S. E. 744 (W. Va.).
Moreover, the decree is subject to another infirmity. By its broad language, it restrains the town from making and enforcing reasonable traffic regulations applicable to the driveway. In so doing it conflicts with both the terms of the contract and the decision of the New Jersey courts in the Welsh case. The contract between the Railroad and the town expressly declares that the driveway “shall be kept open at all times for passengers, pedestrians, carriages, wagons, automobiles and general vehicular traffic to and from the station grounds“; and thаt “the Town may and shall exercise all necessary police powers in and upon the station, station grounds, approaches and driveways, for the purpose of regulating foot and vehicular traffic.” It was decided in Welsh v. Morristown, 98 N. J. L. 630, affirmed sub nom. Welsh v. Potts, 99 N. J. L. 528, that under this contract the town had power to prohibit all parking on the driveway. That construction, being a ruling on a matter of law, is binding upon us. St. Anthony Falls Water Power Co. v. St. Paul Water Commissioners, 168 U. S. 349, 358; Guffey v. Smith, 237 U. S. 101, 112-113. Compare Detroit v. Osborne, 135 U. S. 492, 497-500; Hartford Insurance Co. v. Chicago, Milwaukee & St. Paul Ry. Co., 175 U. S. 91, 100.
MR. JUSTICE HOLMES concurs in this opinion.