delivered the opinion of the court.
These are writs of error brought by parties interested in an order of the Board of Public Utility Commissioners of New Jersey, dated April 20, 1915, directing a change in fifteen places in the City of Paterson, where the Erie Railroad now crosses that number of streets at grade. The order was reviewed on writs of certiorari and affirmed by the Supreme Court, and on appeal by the Court of Errors and Appeals. 89 N. J. L. 57,24. 90 N. J. L. 672, 673, 714, 729, 677, 694, 715. The Erie Railroad Company made two applications to the Supreme Court, the second being based upon а refusal by the Board to grant a rehearing of its order. Accordingly it has two writs of error here.
The order was made under an Act of March 12, 1913, c. 57, P. L. 1913, p. 91, which is construеd by the State Courts to authorize it, subject to the constitutional questions to be dealt with here. The Erie Railroad’s line in Paterson is over tracks originally belonging to the President and Directors of the Paterson and Hudson River Railroad Company and the Paterson and Ramapo Railroad Company, but now held by the Erie Railroad, by assignment of perpetual leases upon the terms that if in 'any unforeseen way the leases terminate the value of erections and improvements must be repaid by the lessors. They however are small corporations having no assets except their roads and the rentals received from' the Erie Company. The leases were ratified by an Act of March 14, 1853,'providing that they should not be held to confer any privilege or right not granted tо the lessors by' their charters. It is admitted that the statute must be taken to impose the duty of making the' changes upon the company operating the road, the plaintiff in error, which is an interstate road. It put in evidence that it did not havé assets sufficient to make the changes, at least without interfering with the proper development of its interstate commerce, and also contended that the whole evidence did not justify the finding of the Board that the crossings were dangerous- to public safety but at most showed that
Most оf the streets concerned were laid out later than the railroads and this fact is relied upon, so far as it goes, as an additional-reason for denying the power of the State to throw the burden of this improvement upon the railroad. That is the fundamental question in. the case. It might seem to be answered by the summary of the decisions given in
Chicago, Milwaukee & St. Paul Ry. Co.
v.
Minneapolis,
But it is argued that the order is, unreasonable in the circumstances to which we have adverted, the principle applied to the regulation of public service corporations being invoked.
Mississippi Railroad Commission
v.
Mobile & Ohio R. R. Co.,
Grade crossings call for a necessary adjustment of two conflicting interests — that of the public using the streets and that of the railroads and the public using them. Generically the streets represent the more important interest of the two. There can be no doubt that they did when these railroads were laid oüt, or that the advent of automobiles has given them an additional claim to consideration. They always are the necessity of the whole public, which the railroads, vitabas they are, hardly can be called to the same extent. Being places to which the public is invited and that it necessarily frеquents, the State, in the care of which this interest is and from which, ultimately, the railroads derive their right to occupy the land, has a constitutional right to insist that they shall not be made dangerous to the public, whatever may be the cost to the parties introducing the danger. That is one of the most obvious eases of the police power, of to put the same proposition in another form, the authority of the railroads to project their moving masses across thoroughfares must be taken to be subject to thе implied limitation that it may be cut down whenever and so far as the safety.of the public requires.. It is said that if the same requirement' were made for the other grade crossings of the road it would soon be bankrupt. That, the States might be so foolish as to kill a goosе that lays golden eggs for them, has no bearing on their constitutional rights. If it reasonably can be said that safety requires the change it is for them to say whether, they will insist upon it, and neither prospective bankruptcy
The plaintiff in error discusses with considerable detail the effect of the changes upon private sidings. But its rights in respect of these are at least no greаter than those in respect of the main line and are covered by the preceding discussion. So are the objections that if the leases ever are terminated it has no chance of being repaid the value of its improvements because of the’smallness of the lessor corporations. They would have this property in that event and it would be subject to their obligation— but the answer to the complaint of the plaintiff in érror in all its forms is that which we have made, Whatever the cost, it may be required by Nеw Jersey not to im
íf we could see that the evidence plainly did not warrant a .finding that the particular crossings were dangerous there might be room for the argument that the order was sо unreasonable as to be void. The number of accidents shown was small and if we went upon that alone we well might hesitate. But the situation is one that always is dangerous. The Board must be supposed to have known the locality and to have had an advantage similar to that of a Judge who sees and hears the witnesses. The Courts of the State have confirmed its judgment. The tribunals were not bound to await a collision that might' cost the road a sum comparable to the cost of the change. If they were reasоnably warranted in their conclusion their judgment must stand. We cannot say that they were not. At some crossings the danger was less than at others, but it was necessary or at least prudent to proceed on a general plan. Upon the whole matter while it is difficult tо avoid the apprehension that the state officials hardly gave due weight to the situation of the company as a whole in their anxiety for the well-being of the .State, we are of opinion that they did not exceed their constitutional powers. The order should be regarded as stating a condition that must be complied with if the company continues to use the New Jersey soil. Probably the conclusion that we have reached could be supported upon the narrower ground that a continuing obligation was imposed by the charters of the plaintiff in error’s lessors, and was assumed by the plaintiff in error, but that which we have stated seems to us free from doubt.
Some argument is based, upon a discretion supposed
While the Railroad Company contends that the Public Service Railway Company should be charged more, the latter company comes here upon thе proposition that it should be charged nothing. We agree with the Courts below that a street railway crossing the tracks of a steam road at grade in a public street increases the danger and may be required to bear á part of the expense оf removing it. The amount charged does not appear to be excessive and upon the principles that we have laid down the payment of it may be made a condition of the continued right to use the streets.
Detroit, Fort Wayne & Belle Isle Ry.
v.
Osborn,
The Passaic Water Company contends that the expen se of moving its pipes cannot be thrown wholly upon it— mainly on the ground that the change of grade was unlawful. This ground fails and the company must adjust itself to the lawfully changed conditions. It also contends that it does not receive the еqual protection of the laws because the street railway instead of being charged
The Western Union Telegraph Company makes similar objections and also says that its interstate commerce is interfered with and presents from its own point of view arguments dealt with so far as they seem to us to need mention in disposing of the principal case. The other plaintiffs in error own side tracks which will be disloсated by the change and they will be put to further expense if the plan is carried out according to what the New Jersey. Court decides to be suggestions not commands. The rights in the side tracks are subordinate to changes in the main track otherwise lawful. As against these as against the others the judgment of the Court of Errors and Appeals is affirmed.
Judgments affirmed.