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    U.S. Supreme Court


    290 U.S. 190

    COMMONWEALTH OF VIRGINIA ex rel. SHIRLEY, State Highway Commissioner.
    No. 26.

    Argued Oct. 17-18, 1933.
    Decided Dec. 4, 1933.

    Appeal from the Supreme Court of Appeals of the State of virginia. [290 U.S. 190, 191]   Messrs. Sidney S. Alderman, of Washington, D.C., and Thomas B. Gay, of Richmond, Va., for appellant.

    Messrs. J. F. Hall and Brockenbrough Lamb, both of Richmond, Va., for appellee.

    [290 U.S. 190, 192]  

    Mr. Justice McREYNOLDS delivered the opinion of the Court.

    This appeal questions the validity of chapter 62, Acts General Assembly of Virginia, 1930, Michie's Code 1930, 3974a. Pertinent portions are in the margin. 1 The [290 U.S. 190, 193]   claim is that enforcement of the act as construed by the state Supreme Court would deprive appellant of property without due process of law, and thus violate the Fourteenth Amendment.

    Purporting to proceed under the challenged chapter, the Highway Commissioner, without prior notice, advised appellant that in his opinion public safety and convenience required elimination of the grade crossing near Antlers; also, he directed construction there of an overhead passage according to accompanying plans and specifications. Replying, the company questioned the Commissioner's conclusion upon the facts, denied the validity of the act, and refused to undertake the work. Thereupon, by petition he asked the State Corporation Commission for an order requiring it to proceed. A demurrer to this questioned the constitutionality of the statute. It especially pointed out that the Commissioner undertook to ordain, [290 U.S. 190, 194]   without prior notice, and that there was no provision for any review except in respect of the proposed plans for the structure. The Commission overruled the demurrer and directed the railway to construct the overhead. The Supreme Court construed the statute and approved this action.

    As authoritatively interpreted the challenged act permits the highway commissioner-an executive officer-without notice or hearing to command a railway company to abolish any designated grade crossing and construct an overhead when, in his opinion, necessary for public safety and convenience. His opinion is final upon the fundamental question whether public convenience and necessity require the elimination unless what the Supreme Court denominates 'arbitrary' exercise of the granted power can be shown. Upon petition, filed within sixty days, the Corporation Commission may consider the proposed plans and approve or modify them, but nothing more. The statute makes no provision for review by any court. But the Supreme Court has declared that a court of equity may give relief under an orginal bill where 'arbitrary' action can be established.

    As construed and applied, we think the statute conflicts with the Fourteenth Amendment.

    Certainly, to require abolition of an established grade crossing and the outlay of money necessary to construct an overhead would take the railway's property in a very real sense. This seems plain enough both upon reason and authority. Washington ex rel. Oregon R.R. & N. Co. v. Fairchild, 224 U.S. 510, 523 , 524 S., 32 S.Ct. 535; Great Northern Ry. Co. v. Minnesota, 238 U.S. 340, 345 , 35 S.Ct. 753. See Chicago, Milwaukee & St. Paul Ry. Company v. Board of Commissioners, 76 Mont. 305, 247 P. 162.

    If we assume that by proper legislation a state may impose upon railways the duty of eliminating grade crossings, when deemed necessary for public safety and convenience, the question here is whether the challenged statute meets the requirements of due process of law. [290 U.S. 190, 195]   Undoubtedly, it attempts to give an administrative officer power to make final determination in respect of facts-the character of a crossing and what is necessary for the public safety and convenience-without notice, without hearing, without evidence; and upon this ex parte finding, not subject to general review, to ordain that expenditures shall be made for erecting a new structure. The thing so authorized is no mere police regulation.

    In Interstate Commerce Commission v. Louisville & Nashville R.R., 227 U.S. 88, 91 , 33 S.Ct. 185, 186, replying to the claim that a Commission's order made without substantial supporting evidence was conclusive, this Court declared:

    Chicago, Milwaukee & St. Paul Ry. Co. v. Minnesota, 134 U.S. 418, 457 , 458 S., 462, 466, 10 S.Ct. 702, involved an act of the Minnesota Legislature, which permitted the Commission finally to fix railway rates without notice. It was challenged because of conflict with the due process clause. This Court said:

    The claim that the questioned statute was enacted under the police power of the state, and therefore is not subject to the standards applicable to legislation under other powers, conflicts with the firmly established rule that every state power is limited by the inhibitions of the Fourteenth Amendment. Chicago, Milwaukee, St. Paul & Pacific R.R. Co. v. Tompkins, 176 U.S. 167 , 20 S.Ct. 336; Eubank v. Richmond, 226 U.S. 137, 143 , 33 S.Ct. 76, 42 L.R.A.(N.S.) 1123, Ann. Cas. 1914B, 192; Adams v. Tanner, 224 U.S. 590, 594 , 37 S.Ct. 662, L.R.A. 1917F, 1163, Ann. Cas. 1917D, 973; Adkins v. Children's Hospital, 261 U.S. 525, 549 , 550 S., 43 S.Ct. 394, 24 A.L.R. 1238

    Lawton v. Steele, 152 U.S. 133 , 14 S.Ct. 499, points out that the right to destroy private property-nuisances, etc.-for pro- [290 U.S. 190, 197]   tection against imminent danger, has long been recognized. Such action does no violence to the Fourteenth Amendment. The principles which control have no present application. Here, the statute itself contemplates material delay; no impending danger demands immediate action. During sixty days the railway may seek modification of the plans proposed.

    Counsel submit that the Legislature, without giving notice or opportunity to be heard, by direct order might have required elimination of the crossing. Consequently, they conclude the same end may be accomplished in any manner which it deems advisable without violating the Federal Constitution. But, if we assume that a state Legislature may determine what public welfare demands and by direct command require a railway to act accordingly, it by no means follows that an administrative officer may be empowered, without notice or hearing, to act with finality upon his own opinion and ordain the taking of private property. There is an obvious difference between legislative determination and the finding of an administrative official not supported by evidence. In theory, at least, the Legislature acts upon adequate knowledge after full consideration and through members who represent the entire public.

    Chapter 62 undertakes to empower the Highway Commissioner to take railway property if and when he deems it necessary for public safety and convenience. It makes no provision for a hearing, and grants no opportunity for a review in any court. This, we think, amounts to the delegation of purely arbitrary and unconstitutional power unless the indefinite right of resort to a court of equity referred to by the court below affords adequate protection.

    Considering the decisions here, it is clear that no such authority as that claimed for the Commissioner could be intrusted to an administrative officer or body under the power to tax, to impose assessments for benefits, to regulate common carriers, to establish drainage districts, or to [290 U.S. 190, 198]   regulate business. Turner v. Wade, 254 U.S. 64, 70 , 41 S.Ct. 27; Browning v. Hooper, 269 U.S. 396, 405 , 46 S.Ct. 141; Interstate Commerce Commission v. Louisville & Nashville R.R., 227 U.S. 88 , 33 S.Ct. 185; Embree v. Kansas City Road District, 240 U.S. 242, 247 , 36 S.Ct. 317; Yick Wo v. Hopkins, 118 U.S. 356 , 6 S.Ct. 1064. Appellee makes no claim to the contrary. He affirms, however, that under the police power the Legislature could rightly grant the challenged authority. But, as pointed out above, this is subject to the inhibitions of the Fourteenth Amendment and we think the suggested distinction between it and other powers of the state is unsound.

    This Court has often recognized the power of a state acting through an executive officer or body or order the removal of grade crossings, but in all these cases there was the right to a hearing and review by some court. See Great Northern Ry. v. Clara City, 246 U.S. 434 , 38 S.Ct. 346; Erie R.R. Co. v. Public Utilities Commissioners, 254 U.S. 394 , 41 S.Ct. 169; Lehigh Valley Co. v. Board of Commissioners, 278 U.S. 24 , 49 S.Ct. 69, 73 L.Ed 161, 62 A.L.R. 805.

    After affirming appellant's obligation to comply with the Commissioner's order, the court below said: 'The railroad is not without remedy. Should the power vested in the Highway Commissioner be arbitrarily exercised, equity's long arm will stay his hand.' But, by sanctioning the order directing the railway to proceed, it, in effect, approved action taken without hearing, without evidence, without opportunity to know the basis therefor. This was to rule that such action was not necessarily 'arbitrary.' There is nothing to indicate what that court would deem arbitrary action or how this could be established, in the absence of evidence or hearing. In circumstances like those here disclosed, no contestant could have fair opportunity for relief in a court of equity. There would be nothing to show the grounds upon which the Commissioner based his conclusion. He alone would be cognizant of the mental processes which begot his urgent opinion. [290 U.S. 190, 199]   The infirmities of the enactment are not relieved by an indefinite right of review in respect of some action spoken of as arbitrary. Before its property can be taken under the edict of an administrative officer, the appellant is entitled to a fair hearing upon the fundamental facts. This has not been accorded. The judgment below must be reversed. The cause will be remanded for further proceedings not inconsistent with this opinion.


    The CHIEF JUSTICE, Mr. Justice STONE, and Mr. Justice CARDOZO dissent upon the ground that there has been a lawful delegation to the state highway commissioner of the power to declare the need for the abatement of a nuisance through the elimination of grade crossings dangerous to life and limb; that this power may be exercised without notice or a hearing ( Chicago, B. & Q.R.R. Co. v. Nebraska, 170 U.S. 57, 77 , 18 S.Ct. 513), provided adequate opportunity is afforded for review in the event that the power is perverted or abused; and that such opportunity has been given by the statutes of Virginia as construed by its highest court.


    [ Footnote 1 ] Chapter 62, Acts General Assembly of Virginia 1930, p. 74 (Michie's Code 3974a).

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