Constitutional Law in 1919-1920, III
Five of the corporations which fought in vain against exercises of the police power profited nothing from their grasp at the obligation-of-contracts clause. In Milwaukee Electric Ry. & Light Co. v. Wisconsin2 the contract relied on was a clause in the charter of a street railroad imposing on it the duty to keep the space between and near its tracks in good repair “with the same material as the city shall have last used to pave or repave these spaces and the street previous to such repairs, unless the railway company and the board of public works of said city shall agree upon some other material, and said company shall then use the material agreed upon.” The company contended that “its obligation is, in any event, limited to repaving with such material as the city had last used between the rails.” Mr. Justice Brandeis, for all the court except Justices Pitney and McReynolds, answered: “This would put upon the city the burden of paving the whole street in case of any innovation in paving save by agreement of the company and the city. It is not a reasonable construction of the ordinance.” This makes the phrase “these spaces and the street” equivalent to “these spaces or the street.” The pavement required of the company was the same as that which the city had laid on all the street but the railway zone. The complaint of the road that the expense would reduce its income below a reasonable return on its investment was answered by saying that “there is no warrant in law for the contention that merely because its business fails to earn full six per cent upon the value of the property used, the company can escape either obligations voluntarily assumed or burdens imposed in the ordinary exercise of the police power.