US SUPREME COURT DECISIONS

1. The ordinance of the Council of the City of Richmond, passed Sept. 8, 1873, that

"No car, engine, carriage, or other vehicle of any kind belonging to or used by the Richmond, Fredericksburg & Potomac Railroad Company shall be drawn or propelled by steam upon that part of their railroad or railway track on Broad Street, east of Belvidere Street, in said city"

does not impair any vested right of the company, under its charter, granted Feb. 25, 1834, nor deprive it of its property without due process of law, nor deny it the equal protection of the laws.

2. The appropriate regulation of the use of property is not "taking" it, within the meaning of the constitutional prohibition.

The Richmond, Fredericksburg & Potomac Railroad Company was incorporated Feb. 25, 1834, by the Legislature of the State of Virginia,

"for the purpose of making a railroad from some point within the Corporation of Richmond, to be approved by the common council, to some point within the corporation of Fredericksburg,"

charter, sec. 1, and was authorized, sec. 24,

"to place on the railroad constructed . . . all machines, wagons, vehicles, carriages, and teams of any description whatsoever, . . . necessary or proper for the purposes of transportation."

It was required at all times to transport persons and property from one point to another along the line of its road, when completed, upon payment or tender of the tolls allowed by the charter. Sec. 26.

At the time of the incorporation of the company, locomotive engines were in use within the State of Virginia, upon a railroad extending from the Roanoke to Petersburg, and the City of Richmond was a municipal corporation, having power

"to make and establish such bylaws, rules, and ordinances not contrary to the constitution or laws of the commonwealth as shall . . . be thought necessary for the good ordering and government of such persons as shall from time to time reside within the limits of said city or corporation or shall be concerned in interest therein."

1 Hening Stat. 46, sec. 2.

On the 22d of December, 1834, the president and directors of the railroad company passed the following preamble and resolution: chanrobles.com-red

Page 96 U. S. 522

"Whereas, by the act incorporating this company, it is requisite that the point at which the railroad terminates within the Corporation of Richmond should be approved by the common council, and it appears to the board most expedient to conduct the same from the Richmond turnpike along H [Broad] Street to a point at or near the intersection of the said street and Eighth Street, and for the present to terminate the same by suitable connection with the contemplated warehouses and workshops of the company on lots Nos. 477 and 478, purchased by them from John Heth, therefore, be it"

"Resolved that the approbation of the common council be requested to the above plan."

On the 23d of the same month, the common council of the city passed the following:

"Whereas, by a resolution of the president and directors of the Richmond, Fredericksburg & Potomac Railroad Company, submitted to the common council, it appears it is deemed most expedient by the said president and directors to conduct the said railroad from the Richmond turnpike along H [Broad] Street to a point at or near the intersection of the said street and Eighth Street, and for the present to terminate the same by suitable connections with the contemplated warehouses and workshops of the company on lots Nos. 477 and 478, purchased by them from John Heth."

"Resolved that the common council do approve the proposed location of the said railroad and the present termination of the same, as described in the foregoing resolution, and authorize the prosecution of the said work within the limits of the city on the above location, provided that in locating the said railroad, no injury shall be done to the water pipes now laid in and along said street, provided that the Corporation of Richmond shall not be considered as hereby parting with any power or chartered privilege not necessary to the railroad company for constructing the said railroad and connecting the same with the depot of said company within the limits of the city."

The railroad company then proceeded with the construction of its road, which was completed and ready for use within the city on the 15th of February, 1836. Shortly before the day, a meeting was held by some of the residents of Shockhoe Hill at which resolutions were passed declaring that in the opinion of the meeting, the company should not be permitted to use locomotive chanrobles.com-red

Page 96 U. S. 523

power for propelling cars within the city and that it "should be required to construct and keep in good order a free access and passing at all points from the one side of H [Broad] Street to the other." These resolutions were presented to the council and referred to the street commissioners with instructions to ascertain and report what injury had been done to the street by laying down the railroad in it, and also what were the future plans of the company so far as they related to the used of the road, and the probable result to the citizens resident and owning property on the street, by the execution of the plans and operations of the company.

This action of the council was communicated to the company on the day it commenced the business of transportation over the road, and, in reply, the president and directors made a statement of which the following is part:

"The railroad having been made along H [Broad] Street from a point approved by the common council, the president and directors, under power given by the act of incorporation, have purchased and placed on the railroad a locomotive engine and other machines proper for the purposes of transportation. Their plan, so far as the same relates to travel on said road on H [Broad] Street, is to have the cars drawn by a locomotive. It has occurred to them that it might not be prudent for the locomotive to go so fast within the corporation as it will after leaving the city, and accordingly they have adopted a resolution directing their engineer not to suffer the locomotive, while in the city, to proceed at a rate exceeding three miles per hour."

Then follows a statement of the plan they had adopted for facilitating the crossing of the track in the street, and the reasons for it.

Upon the receipt of this communication from the company, the council adopted resolutions instructing the commissioners of streets to inquire into the expediency of paying H [Broad] Street, and to ascertain from the company whether they would pay part of the expense attending it. After a correspondence between the commissioners of streets and the committee of the company showing the views of each side, the city surveyor was instructed by the commissioners of streets

"to prepare and submit a plan, the most judicious to be adopted, for paving H

Page 96 U. S. 524

[Broad] Street, . . . having a regard as well to the just rights and interests of the city as to those of the railroad company in the use of said street."

The city surveyor accordingly submitted a report in which, after setting forth the inconveniences which would result to the railroad company by "a uniform pavement on a level with the top of the plates of the railroad," submitted a plan "as a compromise of interests." This plan was finally adopted by both parties and the work done, the railroad company, by arrangement, paying one-third the expense. That ended all action upon the resolutions adopted at the meeting of residents on Shockhoe Hill. The amount paid by the railroad company towards the paving was near $7,000.

At different times after this, applications were made to the council to prohibit the use of locomotives in the street, but the council, while asserting its right to do so, declined to take action in the matter upon the ground that it was not expedient. Ordinances were, however, passed regulating the speed of trains and providing against standing cars in the street.

On the 24th of May, 1870, an amendment was made to the charter of the city, and the council empowered

"to determine and designate the route and grade of any railroad to be laid in said city and to restrain and regulate the rate of speed of locomotives, engines, and cars upon the railroad within the said city, and . . . exclude the said engines and cars, if they pleased, provided no contract be thereby violated."

Acts of 1869-70, p. 125.

On the 8th of September, 1873, after the main line of the railroad had been changed to another route and negotiations for the sale of the depot property by the company to the city had failed, the council passed an ordinance as follows:

"SEC. 3. That on and after the first day of January, 1874, no car, engine, carriage, or other vehicle of any kind belonging to or used by the Richmond, Fredericksburg & Potomac Railroad Company shall be drawn or propelled by steam upon that part of their railroad or railway track on Broad Street east of Belvidere Street in said city. The penalty for failing to comply with this section shall be a fine of not less than $100 nor more than $500 for each and every offense, to be recovered before the police justice of the City of Richmond. "

Page 96 U. S. 525

On the 2d of January, 1874, this action was commenced to recover the penalty incurred under the ordinance for running a locomotive propelled by steam in the street. There was no dispute as to the facts, but the defense relied upon was that the ordinance was unconstitutional and void because 1, it impaired the obligations of the contract contained in the charter of the company, which, as was claimed, granted to the company the right to propel its cars by steam, as well within the city as without, 2, it deprived the company of its property without due process of law, and 3, it denied the company the equal protection of the laws.

This defense having been overruled, and judgment given against the company by the police justice, the case was taken by writ of error first to the circuit court of the city and second to the supreme court of appeals of the state, in both of which courts the judgment below was affirmed. The judgment of the court of appeals is now here for review under sec. 709 of the Revised Statutes, and the errors assigned present the same questions that were relied upon in defense below. chanrobles.com-red

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