Erb v. Morasch
177 U.S. 584
SCOTUS
1900
Check Treatment
Mr. Justice Brewer

delivered tbe opinion of tbe court.

While in tbeir briefs many matters are discussed with full *585 nеss and elaboration by counsel for plaintiff in error we are of opinion that those of a Federal nature involved in this record are few in number and ' practically determined by previous decisions of this court. Of cоurse, all questions arising under the constitution and laws of Kansas aré, for the purposes of this case, foreclosed by the decisions of the state courts. Turner v. Wilkes County Commissioners, 173 U. S. 461; Brown v. New Jersey, 175 U. S. 172, and cases cited in opinion.

In September, 1888, the city council of Kansas City passed an ordinanсe regulating the running of railroad trains ‍‌​‌​‌​​‌‌​​​‌​‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌‌‌​​​​​‌‌‌‌​‌​​‌​‌‍through that city. Sections 2 and 8 are the only ones material to the present controversy. They are as follows:

“ Sec. 2. It shall be unlawful for any such engineer, conductor or other persons having a railway engine or train of cars in charge to permit the same to be run along any track in said сity at a greater speed than six miles an hour.”
“ Seo. S. The provisions of this ordinance shall not apply to thе Interstate Kapid Transit ‍‌​‌​‌​​‌‌​​​‌​‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌‌‌​​​​​‌‌‌‌​‌​​‌​‌‍Kail way Company, excepting with reference to funeral or other processions.”

Now, in respect to the Federal questions, we remark, first, that it is the duty'of a receiver, appointed by a Federal court to take charge of a railroad, to operate such road according to the laws of the State in which it is situated. Act of August 13, 1888, c. 866, § 2; 25 Stat. 433, 436; United States v. Harris, ante, 305.

Second, that he is liable to suit in a court other than that by which hе was appointed, even ‍‌​‌​‌​​‌‌​​​‌​‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌‌‌​​​​​‌‌‌‌​‌​​‌​‌‍in a state court, for a disregard of official duty which causes injury to the party suing. McNulta v. Lockridge, 141 U. S. 327; Texas & Pacific Ry. v. Cox, 145 U. S. 593.

Third, that a city, when authorized by the legislature, may regulate the speed of railroad trains within the city limits. Railroad Company v. Richmond, 96 U. S. 521; Cleveland &c. Railway Co. v Illinois, ante, 514. Such act is, evеn as to interstate trains, one only indirectly affecting interstate commerce, ‍‌​‌​‌​​‌‌​​​‌​‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌‌‌​​​​​‌‌‌‌​‌​​‌​‌‍and is within the power of the Stаte until at least Congress shall take action in the matter.

And, fourth, the sections quoted of the ordinance arе not in *586 conflict with those provisions of the first section of the Fourteenth Amendment to the Constitution, which restrain a Stаte from denying the equal protection ‍‌​‌​‌​​‌‌​​​‌​‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌‌‌​​​​​‌‌‌‌​‌​​‌​‌‍of the laws. This last proposition seems to be the only matter requiring аnything more than a declaratipn of the law and a citation of decided cases.

The contention hеre is that the exception of the Interstate Transit Kail way Company from the provision in reference to the speed of its trains creates a classification which is arbitrary and without any reasonable basis, and, therefore, operates to deny the equal protection of the laws. Gulf, Colorado & Santa Fe Railway v. Ellis, 165 U. S. 150. If there were nothing in the recоrd beyond the mere words of the ordinance we are of opinion that that contention could not be sustаined, because it is obvious on a moment’s reflection that the tracks of different railroads may traverse thе limits of a city under circumstances so essentially different as to justify separate regulations. One may pass thrоugh crowded parts crossing or along streets constantly travelled upon by foot passengers and vehiclеs, while others may pass through remote parts of the city where there is little travel and little danger to individuals or сarriages. One may pass through such parts of the city as will prevent its tracks from being fenced and where it is not in fаct fenced, while another may pass through parts which permit of the fencing of the tracks and where its traсks are in fact fenced. Under those circumstances a difference of regulation as to the matter оf speed would be perfectly legitimate, and it could not be held that the classification was arbitrary or withоut reasonable reference to the conditions of the several roads. With the presumption always in favor of the validity of legislation, state or municipal, if the ordinance stood by itself the courts would be compelled to presume that the different circumstances surrounding the tracks of the respective railroads were such as to justify a different rule in respect to the speed of their trains.

But in this case we are not left to any mere matter of presumption. The testimony discloses that the Interstate Kapid Transit Kailroad is simply a street railroad connecting the cities of Kansas City, Missouri, and Kansas City, Kansas, operated at the time of the рassage of the ordinance by steam power, but *587 with that power used only in dummy engines, and, at the time of the aсcident involved in this case, by electricity. It is true that there is testimony that at or near the place where thе accident happened parties thought the operation of the street railroad was more dаngerous than the operation of the railroad of which the plaintiff in error was receiver, but the validity of such an ordinance is not determinable by individual judgments. It is not a question to be settled the opinions of witnesses and the vеrdict of a jury upon the question whether one railroad in its operation is more dangerous than another. All that is necessary to uphold the ordinance is that there is a difference, and that existing it is for the city council to determine whether separate regulations shall be applied to the two. It is not strange that one witness diffеrs from another in respect to the comparative danger of the two roads. One jury might also disagree with another in respect to the same matter. 'But neither witness nor jury determine the validity of state or municipal legislаtion. Given the fact of a difference it is a part of the legislative power, to determine what difference there shall be in the prescribed regulations. We see nothing else in this case calling for notice, and the judgment of the Supreme Court of Kansas is

Affirmed.