196 U. S.

Statement of the Case.

company whose charter has been duly accepted and whose tracks have been located and constructed, or its lessees and assigns, to extend the location of its tracks within their city or town, without entering upon or using the tracks of another street railway company; and such extended location shall be deemed to be the true location of the tracks of the company, if its acceptance thereof in writing is filed in the office of the clerk of the city or town within thirty days after receiving notice thereof."

Section 32 of the act made it the duty of every street railway company to keep in repair, to the satisfaction of the superintendent of streets, "the paving, upper planking or other surface material of the portions of streets, roads and bridges occupied by its tracks, and if such tracks occupy unpaved streets or roads, (the company) shall, in addition, so keep in repair eighteen inches on each side of the portion occupied by its tracks," etc.

As the law then stood, the railroad company, on several different occasions, between 1891 and 1893, made applications for and was granted the privilege of extending the location of its tracks. On the eleventh day of May, 1891, the defendant in error, upon application, was duly granted an extension of its location for its tracks in certain streets in the city of Worcester, which extension of location was stated in the order or decree of the board of aldermen to be granted "upon the following conditions;" eight different conditions then follow, among which is:

"Second. That block paving shall be laid and ‘maintained between the rails of its track and for a distance of eighteen inches outside of said rails for the entire distance covered by this location." "

This order or decree was duly accepted in writing by the defendant in error, and its acceptance filed with the clerk of the city of Worcester. Other extensions of locations were applied for and granted during this time, some of which were upon the condition or restriction that the paving should be

between the rails and outside thereof to the street curb, and these conditions were accepted and the acceptance duly filed in the city clerk's office.

Subsequently and in 1898, (chap. 578 of the Massachusetts Laws of that year), provision was made for a somewhat different system of taxation than that which prevailed at the time these several extensions of locations were granted and accepted by the railroad company. It was provided by section 11 of that act as follows:

"SEC. 11. Street railway companies shall not be required to keep any portion of the surface material of streets, roads and bridges in repair, but they shall remain subject to all legal obligations imposed in original grants of locations, and may, as an incident to their corporate franchise, and without being subject to the payment of any fee or other condition precedent, open any street, road or bridge in which any part of their railway is located, for the purpose of making repairs or renewals of the railway, or any part thereof, the superintendent of streets or other officer exercising like authority, or the board of aldermen or selectmen, in any city or town where such are required, issuing the necessary permits therefor."

After the passage of this act of 1898 the railroad company consented and conformed to its requirements, and thereafter omitted to make the repairs in the streets which had been required of it at the time when its extended locations were granted during the period from 1891 to 1893. The city thereafter sought by these various actions or proceedings to compel the street railway company to repair and maintain the surface of the streets, as provided for by the law in force when the extended locations were given and accepted. During the time that the railroad company had since the passage of the act of 1898, omitted to make the repairs provided for as a condition for the granting of its application for extended locations, the city had incurred expenses in renewing and repairing various portions of the pavements, because of the omission and refusal

196 U. S.

Argument for Plaintiff in Error.

of the railroad company to do so, and one of these actions was brought to recover the expenses thus incurred by the city in making such repairs and renewing such pavement.

Mr. Arthur P. Rugg, with whom Mr. John R. Thayer was on the brief, for plaintiff in error:

The conditions contained in the grants of extensions were legally imposed, the city and the railroad company were empowered to enter into contracts and the acceptance of the location with the conditions constituted a contract and the obligation to pave assumed by the contract is a property right which cannot be taken from the city without due process of law.

As to what is a property right within the Fourteenth Amendment see Campbell v. Holt, 115 U. S. 620. Restrictions constitute valuable property rights. Soulard v. United States, 4 Pet. 511; Metropolitan City Ry. Co. v. Chicago, 87 Illinois, 317. Under the Massachusetts laws the municipality has certain property rights with reference to highways and the repair thereof. Rev. Laws, c. 51, §§ 1, 17, 18, 23; Butman v. Newton, 179 Massachusetts, 1, 6; Perry v. Worcester, 6 Gray, 544; Deane v. Randolph, 132 Massachusetts, 475; Hill v. Boston, 122 Massachusetts, 344; Pratt v. Weymouth, 147 Massachusetts, 245, 254; Brookfield v. Reed, 152 Massachusetts, 568; Collins v. Greenfield, 172 Massachusetts, 78, 81; Tindley v. Salem, 137 Massachusetts, 171. Under the laws of Massachusetts the municipality has authority to arrange for the repair of streets. Morrison v. Lawrence, 98 Massachusetts, 219; Sampson v. Boston, 161 Massachusetts, 288; Cavanagh v. Boston, 139 Massachusetts, 426; Smith v. Rochester, 76 N. Y. 506; Anthony v. Adams, 1 Metc. 284.

This property right cannot be taken from the city by the legislature. Legislative power over the municipality is very extensive, but it is not universal and does not extend to property acquired for special purposes or to rights of immunity, in which respect the city has the same rights as the individual

Argument for Plaintiff in Error.

196 U. S.

to his private property. Mt. Hope Cemetery v. Boston, 158 Massachusetts, 509, and cases cited on p. 512; Commissioners v. Lucas, 93 U. S. 108; Mt. Pleasant v. Beckwith, 100 U. S. 514, 533; Broughton v. Pensacola, 93 U. S. 266; New Orleans, M. & T. R. Co. v. Ellerman, 105 U. S. 166, 172; Richmond v. Telephone Co., 174 U. S. 761, 777.

These property interests and pecuniary rights of a municipality as to a public way, when taken in conjunction with the contract power of the municipality with reference to the repair of streets, Brookfield v. Reed, 152 Massachusetts, 568, places the property rights of the city, in respect of highways, upon the same basis as its property rights in sewer systems and water works. Property rights of municipalities in sewers are recognized in a multitude of cases. Johnston v. District of Columbia, 118 U. S. 19; Maxmilian v. Mayor, 62 N. Y. 164; Coan v. Marlborough, 164 Massachusetts, 206; Child v. Boston, 4 Allen, 41. As to water works see Hand v. Brookline, 126 Massachusetts, 324; Johnson v. Worcester, 172 Massachusetts, 122; Lynch v. Springfield, 174 Massachusetts, 430; Esberg Gunst Co. v. Berlin, 55 Pac. Rep. 961; S. C., 34 Oregon, 282; Walla Walla v. Walla Walla Water Co., 172 U. S. 1. As to wharves, Mersey Docks Board v. Gibbs, 11 H. L. Cases, 686; Petersburg v. Applegarth, 28 Gratt. 321; Pittsburgh v. Grier, 22 Pa. St. 54. As to gas works, Western Savings Fund Society v. Philadelphia, 31 Pa. St. 183; San Francisco Gas Co. v. San Francisco, 9 California, 483; Middleborough v. N. Y., N. H. & H. R. R. Co., 179 Massachusetts, 520.

The city of Worcester has a special proprietary right in the property of the defendant in error reserved to it in the original statute incorporating the railroad company, Chap. 148, Mass. Laws of 1861, in regard to its right of purchase of the railroad company's property. This is property. Richardson v. Sibley, 11 Allen, 65; Cambridge v. Railroad Co., 10 Allen, 50; Boston & Albany R. R. Co. v. Cambridge, 159 Massachusetts, 283; Water Supply Co. v. Braintree, 146 Massachusetts, 482; Water Co. v. Rockport, 161 Massachusetts, 279.

196 U.S.

Argument for Defendant in Error.

A municipal corporation is a "person" within the meaning of that word as used in the Fourteenth Amendment.

The word "corporation" as used in certain statutes, includes a municipal corporation. Loeb v. Columbia Township, 179 U. S. 472, 486; Andes v. Ely, 158 U. S. 312; 1 Dillon on Mun. Corp., 4th ed., §§ 18, 19, 20; Mass. P. S., c. 3, § 3, cl. 16; Mass. R. L., c. 8, § 5, cl. 16; Covington & L. Turnpike R. R. Co. v. Sandford, 164 U. S. 578, 592; Pembina Consol. Mining Co. v. Pennsylvania, 125 U. S. 181.

The act of the Massachusetts legislature should not be construed to have abrogated the municipality's contract with the railroad company and this court can so hold notwithstanding the construction placed on the act by the state court.

Where the validity of the state statute is attacked upon the very ground that it was in conflict with the contract clause of the Federal Constitution this court examines de novo the meaning of the statute and places its own interpretation upon it. McCullough v. Virginia, 172 U. S. 102, 109; Yick Wo v. Hopkins, 118 U. S. 356; Mobile & Ohio R. Co. v. Tennessee, 153 U. S. 486; Wilson v. Standefer, 184 U. S. 399, and cases cited on p. 411. The legislative history of the act shows that it was not intended to abrogate the rights of the municipality.

Mr. Bentley W. Warren for defendant in error:

The board of aldermen of Worcester in imposing the socalled conditions, claimed by the city to amount to contracts, contained in the orders of location acted, so far as it was intrusted with any power in relation to the location and construction of the defendant's railway, not in the capacity of officers or representatives of the city of Worcester, but as public officers under authority delegated to them by the legislature. The city of Worcester, as a municipal corporation, had no power, whether acting by its board of aldermen, by its city government, or otherwise, with respect to street railway locations within its limits. Municipal corporations in Massachusetts possess only such powers and rights as are ex

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