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DETROIT &C. RY. V. OSBORN, 189 U. S. 383 (1903)

U.S. Supreme Court

Detroit &c. Ry. v. Osborn, 189 U.S. 383 (1903)

Detroit, Fort Wayne and Belle Isle Railway v. Osborn

Argued January 16, 1903

Decided April 6, 1903

189 U.S. 383


1. Where the plaintiff in error claimed and set up a right under the Constitution of the United States, and the decision of the supreme court of the state was tantamount to the denial of that right, there is a federal question, and a motion to dismiss will be denied.

2. Under the laws of the Michigan, the Commissioner of Railroads has power to compel a street railroad to install safety appliances in accordance with law, the cost to be shared between it and a steam railroad occupying the same street, notwithstanding that the steam road is the junior occupier of the street.

3. There is a difference between ordinary vehicles and electric cars which

Page 189 U. S. 384

the state may, in the exercise of its police power, recognize without denying the company operating the electric cars the equal protection of the laws.

Where the objection that a statute does not provide for notice is taken for the first time in this Court, and the record shows that there actually was notice given, it is not open to the plaintiff in error to complain that the statute did not provide for such notice.

This case involves the legality of an order of the Commissioner of Railroads of the State of Michigan requiring the plaintiff in error and the Union Terminal Association of Detroit, at their own cost and expense, to maintain and operate safety gates and derailing and signaling appliances at Clark Avenue in said city. The order is inserted in the margin. *

Page 189 U. S. 385

The order was made and issued under Act 171 of the Public Acts of the State of 1893, section 5 of which provides as follows:

"The Commissioner of Railroads shall, as soon as possible after the passage of this act, examine the crossings of the tracks of railroads and street railroads then existing, and order such changes made in the manner of such crossings, or such safeguards for protection against accidents to be provided thereat, as in his judgment ought to be so made or provided, and shall apportion any expense incidental thereto between the companies affected as he may deem just and reasonable."

The statute and order are attacked as depriving the plaintiff in error of its property without due process of law, because compliance with the order

"will involve the expenditure of a large sum of money, first, in the construction of the said safety devices, and, if the same are constructed, in the maintenance and repair thereof."

The plaintiff in error is a street railroad company incorporated under the laws of Michigan, and operates a railroad on certain streets of the City of Detroit, including Clark Avenue. It succeeded in ownership and operation a company known as the Fort Street & Elmwood Avenue Railway, which was also a street railway corporation. The latter company was authorized to construct its road on Clark Avenue, and under its grant did construct and operate its road thereon. "At the time the track was constructed" (we quote from the opinion of the supreme court of the state)

"on Clark Avenue, there was no railroad, or highway, street, lane, or alley, or crossing of any kind over Clark Avenue between Fort Street and the River

Page 189 U. S. 386

Road. In 1882 or 1883, the Wabash Railroad constructed a single track across Clark Avenue and across petitioner's tracks. Up to that time, there had been no crossing over Clark Avenue, between Fort Street and the River Road, of any kind -- either that of a railroad or a public highway, a private way, road, street, or alley. In the year 1893 or thereabouts, the union station was opened at the corner of Third and Fort Streets in Detroit, and since that time, said station has been used jointly by the Wabash, the Detroit, Lansing & Northern, the Flint & Pere Marquette, the Detroit & Lima Northern, and the Canadian Pacific railroads as a terminal point, the tracks over Clark Avenue at this point having been increased from one to three to accommodate the increased traffic. These tracks are used as approaches to the union station, and incoming and outgoing trains and cars of all the foregoing roads, except the Canadian Pacific Railroad, pass over said tracks. There are thirty-eight regular daily passenger trains crossing Clark Avenue upon these tracks. Besides this, the Canadian Pacific uses the station as an eastern terminus, connecting with the other roads for purposes of through east and west traffic."

In 1893, the legislature of the state passed the act hereinbefore set out, and under its authority the defendant in error made the order complained of.

The case was submitted upon the petition of relator (plaintiff in error) and the answer of respondent (defendant in error), and the mandamus prayed for denied. 127 Mich. 219. This writ of error was then sued out.

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