Supreme Court of United States.
*497 Mr. Frank B. Kellogg, with whom Mr. Burton Hanson and Mr. Gustavus S. Fernald were on the brief, for plaintiff in error.
Mr. Walter Drew, Deputy Attorney General of the State of Wisconsin, with whom Mr. W.C. Owen, Attorney General of the State of Wisconsin, was on the brief, for defendant in error.
MR. JUSTICE LAMAR, after making the foregoing statement, delivered the opinion of the court.
There have been two statutes in Wisconsin relating to *498 letting down the upper berth when the lower was occupied. The first[1] left the matter to the decision of the occupant of the lower berth. The second[2] absolutely prohibits the upper from being let down before it is engaged or occupied.
Concerning the act of 1907, which provided that the occupant of the lower "should have the right to direct whether the unoccupied upper should be opened or closed," the Supreme Court (State v. Redmon, 134 Wisconsin, 89, 103) held that the statute was "not a police regulation, but an unwarranted interference with property rights; an attempt . . . to give any person at his option who pays for a part of a section in a sleeping car the use, free of charge, of the balance thereof; an obvious . . . attempt . . . to appropriate the property of one for the benefit of another in violation of several constitutional safeguards that might be referred to, but particularly the guarantee that no person shall be . . . deprived of life, liberty or property without due process of law." . . . "It follows that the arbitrary appropriation in the name of law of the space of an upper berth in a sleeping car for the greater comfort and safety, as regards the health of the occupant of the lower berth at his option, . . . is highly oppressive. . . ."
1. But the language of the Act of 1911, now under review, *499 does not remove the fundamental objection to that class of legislation. For as the State could not authorize the occupant of the lower berth to take salable space without pay, neither can the present statute compel the Company to give that occupant the free use of that space until it is actually purchased by another passenger. The owner's right to property is protected even when it is not actually in use, and the Company cannot be compelled to permit a third person to have the free use of such property until a buyer appears.
2. While this principle is recognized, it is said that this Act of 1911 was not passed for the purpose of benefiting the occupant of the lower berth, but as a health measure and in the interest of all the occupants of the car. But the statute does not purport to be a health measure, and cannot be sustained as such. For if lowering the upper berth injuriously interfered with the ventilation of the car and the health of the passengers it would follow that upper berths should not be lowered; and if it was harmful to let down the uppers it would be even more harmful to permit additional passengers to come into the car and occupy them. The testimony of witnesses and common knowledge coincide with the trial court's finding of fact that the lowering of upper berths does not endanger the lives, health or safety of persons occupying the lower berth and that keeping the upper closed will not add to the comfort of the public generally. Lake Shore &c. Ry. v. Smith, 173 U.S. 692. There are some inconveniences and discomforts incident to traveling on a sleeping car, but none of those resulting from the lowering of the upper berth are of a character that can be treated as a nuisance either in law or in fact. For lowering the upper berth is not only not treated as a nuisance or a serious inconvenience and discomfort to passengers, but the language of the statute itself recognizes that the sleeping car company might lawfully sell all of the upper berths and have each of them *500 occupied. The same is true of the order of the State Commission fixing a rate of $1.50 for the lower berth, $1.20 for the upper berth, and $2.70 for the section. This treats that the space in the section is salable, as a whole or in parts; and, if the space is thus lawfully salable, it is property entitled to protection.
3. The State Supreme Court cited Lawton v. Steele, 152 U.S. 133; Lake Shore & M.S. Ry. v. Ohio, 173 U.S. 285; Atlantic Coast Line v. North Carolina Corp. Comm., 206 U.S. 1; New York, N.H. & H.R.R. v. New York, 165 U.S. 628; and after discussing the extent of the police power and the conditions under which it can be exercised, held that it was a reasonable exercise of such power to prohibit the upper berth from being lowered if not engaged or occupied, saying that "if compliance with this [statutory] command imposes extra burdens, they are not of such an unusual nature as to be oppressive; and if it involves additional costs in the conduct of the business, then the defendant can readily be secured against such loss by having the rate adjusted to meet this burden." But if the statute is not a reasonable exercise of the police power and yet operates to take property, such taking cannot be justified on the ground that the Company may be able to secure an increase in rates. For, without considering any other question involved, it is sufficient to say that the taking and a fixed right to compensation must coincide, though in some cases the time for payment may be delayed. Sweet v. Rechel, 159 U.S. 380, 400.
4. The plaintiff also insists that the requirement that the upper berth should not be let down until actually engaged also deprives the Company of its right of management and prevents it from conducting its business so as to secure the privacy of the man or woman occupying the lower berth. It is not necessary to refer to the evidence on that subject because it is a matter of common knowledge that to let down the upper berth during the night would *501 necessarily be an intrusion upon the privacy of those occupying lower berths. For the glare of the lights and the noise of lowering the upper berth would disturb any except the soundest sleepers. In this respect the statute would lessen the ability of the Company to furnish the place of sleep and rest which it offers to the public. A sleeping car may not be an "inn on wheels," but the operating company does engage to furnish its patrons with a place in which they can rest without intrusion upon their privacy. Holding out these inducements and seeking this patronage, the Company is entitled to the privilege of managing its business in its own way so long as it does not injuriously affect the health, comfort, safety and convenience of the public. The right of the State to regulate public carriers in the interest of the public is very great. But that great power does not warrant an unreasonable interference with the right of management or the taking of the carrier's property without compensation. Lake Shore & Michigan Ry. v. Smith, 173 U.S. 684; Northern Pacific Ry. v. State of North Dakota, 236 U.S. 585; State of Washington ex rel. Oregon R.R. v. Fairchild, 224 U.S. 510, 529; Missouri Ry. v. Nebraska, 164 U.S. 403, 417; Great Northern v. R.R. Commission, just decided, ante, p. 340.
5. In the brief of counsel for the State it is argued that the statute can be sustained as a valid exercise of the State's reserved power to alter the charter of the Company. That question does not seem to have been raised in the state court, nor was its decision based on that proposition. Indeed such a ruling would seem to have been opposed to State ex rel. Northern Pacific v. R.R. Commission, 140 Wisconsin, 157, and the Water Power Cases, 148 Wisconsin, 124, where it was held that the right to amend a charter does not authorize the taking of the Company's property without just compensation. The same view has been repeatedly expressed in the decisions of this court. For example in Shields v. Ohio, 95 U.S. 324, it was said *502 that "the power of alteration and amendment is not without limit. The alterations must be reasonable . . . and consistent with the scope and object of the act of incorporation." . . . Again in Stearns v. Minnesota, 179 U.S. 223, 259, it was held that the reserved right to amend a corporate charter "does not confer mere arbitrary power, and cannot be so exercised as to violate fundamental principles of justice by . . . taking of property without due process of law." Lake Shore &c. Ry. v. Smith, 173 U.S. 690; Stanislaus Co. v. San Joaquin Co., 192 U.S. 201; Sinking-Fund Cases, 99 U.S. 720; Miller v. State, 15 Wall. 498; see also Delaware, Lackawanna &c. v. Board of Public Utilities, 85 N.J.L. 28, 38, where it was held that, under such a power, the Company could not be required to furnish free transportation to certain designated officials. This conclusion makes it unnecessary to discuss the assignments relating to interstate commerce.
The judgment is reversed and the case remanded to the Supreme Court of Wisconsin for further proceedings not in conflict with this opinion.
Reversed.
MR. JUSTICE McKENNA and MR. JUSTICE HOLMES dissent.
[1] "An act . . . relating to the health and comfort of occupants of sleeping-car berths.
"SEC. 1. Whenever a person pays for the use of a double lower berth in a sleeping-car, he shall have the right to direct whether the upper berth shall be open or closed, unless the upper berth is actually occupied by some other person; and the proprietor of the car and the person in charge of it shall comply with such direction." Laws of 1907, c. 266.
[2] "1. Whenever a person shall engage and occupy a lower berth in a sleeping-car, and the upper berth of the same section shall at the same time be neither engaged nor occupied, the upper berth shall not be let down, but shall remain closed until engaged or occupied." Laws of 1911.
