UNITED STATES SUPREME COURT DECISIONS ON-LINE

A railway company may be required by the state, or by a municipality acting under the authority of the state, to construct overhead crossings or viaducts over its tracks at its own expense; the consequent expense is damnum absque injuria or compensated by the public benefit in which the company shares, and is not a taking of property without due process of law.

In the exercising of the police power, the means to be employed to promote the public safety are primarily in the judgment of the legislature, and the courts will not interfere with duly enacted legislation which has a substantial relation to the purpose to be accomplished and does not arbitrarily interfere with private rights.

If the state court has held that a municipality has power to pass ordinances requiring railway companies to build viaducts, this Court can only declare such an ordinance unconstitutional under the Fourteenth Amendment as an arbitrary abuse of power in a clear and unmistakable case.

A municipal ordinance requiring a railroad company to construct a viaduct over crowded streets and which is otherwise valid is not unconstitutional as depriving the company of its property without due process of law because it requires the company to construct the work at its own expense, or because it requires the viaduct to be erected in a manner involving greater expense than though erected in a different and possibly adequate manner, or because the viaduct is only to carry a part of the traffic of the street.

In determining whether a municipal ordinance is or is not an unconstitutional abuse of power, this Court will not disturb the conclusions of two courts upon the facts regarding the object and necessity for the work and the sufficiency of the plans and specifications.

Where an ordinance requiring work to be done is otherwise valid, this Court will not, at the instance of a party affected thereby and in advance of compliance therewith, declare it unconstitutional as depriving that part,y of its property without due process of law because clubjuris

Page 235 U. S. 122

sufficient time is not allowed to commence work. A court of equity has power to relieve a party from the infliction of unwarranted penalties for noncompliance with such an ordinance if compliance within the period fixed is physically impossible. The ordinance of Omaha, Nebraska, of March, 1910, requiring the Missouri Pacific Railway Company to construct a viaduct over its railway at Dodge Street is not unconstitutional as an arbitrary exercise of power and deprivation of property of the railway company without due process of law.

197 F.5d 6 affirmed.

The facts, which involve the constitutionality under the due process provision of the Fourteenth Amendment of an ordinance of the City of Omaha requiring the construction of a viaduct by a railroad company, are stated in the opinion. clubjuris

Page 235 U. S. 126