394.

Argument for Plaintiff in Error in Nos. 33, 34.

is that the sidings or the connections thereof with the main tracks are destroyed and no one can be compelled to restore them. This interferes with the interstate commerce of plaintiff in error and for that reason is in violation of the Federal Constitution. McNeill v. Southern Ry. Co., 202 U. S. 543.

The order also operates as a regulation of interstate commerce because the great cost of carrying it out impairs the ability of plaintiff in error to perform its public duty as a common carrier of interstate traffic. Discussing: Kansas City Southern Ry. Co. v. Kaw Valley District, 233 U. S. 75; Chicago, Burlington & Quincy R. R. Co. v. Wisconsin R. R. Commission, 237 U. S. 220; Mississippi R. R. Commission v. Mobile & Ohio R. R. Co., 244 U. S. 388. Distinguishing: Denver & Rio Grande R. R. Co. v. Denver, 250 U. S. 241.

There was no real occasion or necessity for imposing such an enormous burden upon the company in the present case. Under the statute upon which the order is based, the city might well have selected any one of the crossings, rather than combining 15 of them in a single proceeding. If 15 crossings in a single city may be considered in one proceeding, there is no reason why all of the crossings within the limits of a municipality should not be considered-indeed, there is no logical stopping place fixed by the boundary line of any municipality; we might as well include all of the grade crossings in the entire State upon any particular railroad. We do not ask this court to review the supposed discretion of the board to include more than one crossing in the same order, but we insist that under the undisputed testimony the necessary effect of an order which requires several millions to be spent within the limits of a single municipality, covering about two miles of main-line track, is a direct interference with and a burden upon the interstate commerce of plaintiff in error. There are over

Argument for Plaintiff in Error in Nos. 33, 34. 254 U. S.

2,200 miles of railroad tracks which it is necessary for plaintiff in error to maintain in an operating condition; and to appropriate a large part of the money which might be, and ought to be, used for that purpose and pour it into a single town-to the detriment of all the rest of the system, is a direct burden upon the interstate commerce; and, indeed, even more, because the inevitable result is to leave plaintiff in error no money with which to maintain the rest of its system, even if it had enough in the first instance (which the proof shows it had not) to pay the cost of eliminating the crossings in Paterson.

The order was unreasonable and arbitrary and therefore violates the due process clause, because the evidence shows without dispute that plaintiff in error did not have sufficient funds or any means of procuring them for the purpose of meeting the cost of complying.

The legislature may prescribe a standard, by which the action of an administrative board is to be governed, but when it undertakes to commit to such board certain powers which are dependent upon the existence of certain facts, the statute must itself prescribe some standard upon which the board's action is made to depend.

It is impossible to lay down any hard and fast rules for determining whether a crossing is "dangerous," and hence there is no standard upon which the action of the board in any particular case must be based. It is equally impossible to lay down any rule by which the question of whether public travel is "impeded" may be determined-unless the word "impeded" be applicable only to permanent obstructions and not merely to delays or hindrances caused by the passage of trains.

The statute confers on the board arbitrary power to order or to refuse to order the alteration of a grade crossing, even though it may find the jurisdictional facts on which the right to make such order under the statute depends.

394.

Argument for Plaintiff in Error in Nos. 33, 34.

There is no provision which requires that the orders of the commission be lawful and reasonable, as there are in many other similar statutes. See Public Util. Comm. v. Toledo &c. R. R. Co., 267 Illinois, 93; State v. Great Northern Ry. Co., 100 Minnesota, 445.

Furthermore, there is no standard fixed with regard to the proportion of the expense to be borne by a street railway company, as the board may, but need not, order not exceeding 10 per cent. to be paid by the street railway company.

The opinion of the state Supreme Court is not clear as to whether the statute is to be construed as permissive or as mandatory, after the board has found the jurisdictional facts as to danger to public safety, or as to impediment to public travel. If the statute be so construed as to authorize the board to order plaintiff in error to do certain work for the purpose of eliminating grade crossings, and to decline to order some one else to do like work in substantially similar circumstances, plaintiff in error is deprived of the equal protection of the laws, by being obliged to use its money and property to eliminate grade crossings, while other railroads, similarly situated, might not be required so to do. In considering the constitutionality of a statute, the question depends upon not what is done, but what might or could be done under it. Montana Co. v. St. Louis Mining Co., 152 U. S. 160; Security Trust Co. v. Lexington, 203 U. S. 323; Central of Georgia Ry. Co. v. Wright, 207 U. S. 127; In re Christensen, 43 Fed. Rep. 243; Grainger v. Douglas Park Club, 148 Fed. Rep. 513.

On the other hand if, under the statute, the board has no power to consider any facts other than danger to public safety and impediment to public travel, and, therefore, cannot take into consideration the question of whether the elimination of the crossing or crossings would result in any compensating advantage to the railroad or to the

Argument for Plaintiff in Error in Nos. 33, 34. 254 U. S.

public, and cannot consider the financial ability of the railroad to do the work required by the order, the statute might as well have stated that every grade crossing must be eliminated, as every crossing, in the very nature of things, is to some extent dangerous to public safety and to some extent impedes public travel.

We submit that these are not reasonable standards upon which the action of an administrative body is to be based, and that, if this be the proper construction, the statute deprives plaintiff in error of its property without due process of law.

If it is permissive, it deprives plaintiff in error of the equal protection of the laws. If the view of the state courts, that plaintiff in error is not concerned about the construction of the statute on this point, is correct, we further submit that the evidence in the present record shows that the action of the board was unreasonable and arbitrary, because it appears, without dispute that plaintiff in error did not have the financial ability to comply with the order, and hence, if we assume, for the purpose of argument, that the statute is valid, as against the objections stated above, the question still remains whether the present order can be sustained.

Discussing: Cattaragus Board of Trade v. Erie R. R. Co., N. Y. Pub. Serv. Comm., December 2, 1914; St. Johnsbury v. Boston & Maine R. R. Co., Vermont Pub. Serv. Comm., P. U. Rep., 1915 A, p. 641; Maryland Pub. Serv. Comm., December 16, 1912, Reports, 1912; Report of Pub. Util. Commrs. of Connecticut, 1912, p. xlvii; Iowa Board of Railroad Commrs., Report 1913, p. 43; Erie R. R. Co. v. Board of Public Utility Commrs., Supreme Court of New Jersey, April, 1915 (not reported); Houston &c. R. R. Co. v. Dallas, 98 Texas, 396; Northern Central Ry. Company's Appeal, 103 Pa. St. 621; Pennsylvania &c. R. R. v. Philadelphia & Reading R. R., 160 Pa. St. 277; Cleveland &c. Ry. Co. v. State Public Utilities Comm.,

394.

Argument for Plaintiff in Error in Nos. 33, 34.

273 Illinois, 210; Connecticut Co. v. Stamford, 95 Connecticut, 26; Chicago & Northwestern Ry. Co. v. Ochs, 249 U.S. 416.

The foregoing authorities show that the element of expense is an important one; if it is found to be unreasonable under the circumstances of the particular case, that fact will usually suffice to demonstrate that the order is arbitrary. See also Chicago &c. Ry. Co. v. Minneapolis, 238 Fed. Rep. 384; Health Department v. Trinity Church, 145 N. Y. 32.

The order was unreasonable and arbitrary and therefore violates the due process clause because plaintiff in error was not given the alternative of reducing or eliminating the alleged danger to public safety and the alleged impairment to public travel by decreasing the number of train movements or by abandoning the railroad.

The general rule that, where a railroad has been constructed and put in operation, the company has no right to abandon the enterprise or cease to operate, does not go to the extent of requiring the continuance of operation at a loss, unless a statute expressly so provides. Jack v. Williams, 113 Fed. Rep. 823; affd. 145 Fed. Rep. 281; Iowa v. Old Colony Trust Co., 215 Fed. Rep. 307; Northern Pacific R. R. Co. v. Dustin, 142 U. S. 492; Amesbury v. Citizens Electric Ry. Co., 199 Massachusetts, 394; Sherwood v. Atlantic &c. Ry. Co., 94 Virginia, 291; Mississippi R. R. Commission v. Mobile & Ohio R. R. Co., 244 U. S. 388; Chicago &c. Ry. Co. v. Minneapolis, 238 Fed. Rep. 384.

If the company has no legal power to abandon the railroad no matter how great the loss, it should at least be given the alternative of decreasing the alleged danger and impediment by decreasing the number of train movements, especially when it proposes a reasonable and practicable scheme therefor which would greatly improve the train service to and from Paterson and would result