Chi., B. & Q. R. Co. v. State ex rel. City of Omaha

• Decision Date: 18 March 1896
• Parties: CHICAGO, B. & Q. R. CO. v. STATE EX REL. CITY OF OMAHA.
• Court: Nebraska Supreme Court

47 Neb. 549

66 N.W. 624

CHICAGO, B. & Q. R. CO.

v.STATE EX REL. CITY OF OMAHA.

Supreme Court of Nebraska.

March 18, 1896.

Syllabus by the Court.

1. The essential quality of the police power, as a governmental agency, is that it imposes upon persons and property burdens designed to promote the safety and welfare of the public at large.

2. The legislature cannot, under the guise of police regulations, arbitrarily invade personal rights or private property. There must be some obvious and real connection between the actual provisions of such measures and their assumed purpose.

3. “Due process of law,” as the term is used in the state and federal constitutions, does not necessarily imply a hearing, by one whose property is taken or damaged for public use, according to the established practice in courts of common law or equity, but is satisfied whenever an opportunity is afforded to invoke the equal protection of the law by judicial proceedings appropriate for the purpose, and adequate to secure the end and object sought to be attained.

4. The power of the legislature to subserve the general welfare of the people by all needful and proper regulations in the interest of health and safety is inherent in the sovereignty of the state, and cannot be bartered away by contract or otherwise.

5. Such power may be asserted directly by the legislature, or may, in the absence of constitutional restrictions upon the subject, be delegated to the several municipal corporations or other agencies provided for its exercise.

6. The power of the legislature over private property is not absolute. But while it cannot, at will, impose upon property burdens so excessive and unreasonable as to work a practical confiscation thereof, the courts will never interfere to prevent the enforcement of statutes on account of any mere difference of opinion between them and the lawmaking power of the government respecting the wisdom or necessity of particular measures.

7. The provision of the charter of the city of Omaha (section 48, c. 12a, Comp. St.) authorizing said city, by ordinance, to require railroad companies to construct and keep in repair viaducts over streets therein crossed by their tracks, is a valid exercise of the police power of the state.

8. Ordinance requiring the reconstruction by two railroad companies of specific portions of a viaduct previously erected by them jointly with the city held not to violate prior contract obligations.

9. Nor is such ordinance void, as against the railroad companies therein named as the owners of said roads, for the failure of the city to proceed against other companies engaged in operating one or more of said tracks as lessees of the owners, the charter obligation being imposed upon railroad companies owning or operating separate lines of track.

10. The duty of railroad companies to construct or repair viaducts within the city of Omaha may be enforced by writ of mandamus.

Error to district court, Douglas county; Ambrose, Judge.

Mandamus on the relation of the city of Omaha against the Chicago, Burlington & Quincy Railroad Company. There was a judgment for relator, and respondent brings error. Affirmed.

Chas. J. Greene. Greene & Breckenridge, and J. W. Deweese, for plaintiff in error.

W. J. Connell, for defendant in error.

POST, C. J.

This was a proceeding, on the relation of the city of Omaha, to require the Chicago, Burlington & Quincy Railroad Company (hereafter referred to as the “respondent”) to repair the south one-third of the so-called “Eleventh Street Viaduct,” in said city. There was a trial upon issues joined in the district court for Douglas county, resulting in a finding and judgment in accordance with the prayer of the relator, and which has, by appropriate proceedings, been removed into this court for review. It is essential to a perfect understanding of the questions discussed to refer in detail to the legislation of the state and the city, so far as it relates to the subject of the controversy; and, in so doing, we will follow the order in which they are presented in the valuable brief submitted in behalf of the respondent.

In the year 1869 the Omaha & Southwestern Railroad Company was organized under the General Statutes of this state, and immediately thereafter constructed a line of road from the city of Omaha, in a southwesterly direction, to a point on the Platte river, in Sarpy county, and which it continued to operate until the year 1871, when it transferred all of its property and franchises to the Burlington & Missouri River Railroad Company, also a Nebraska corporation, by lease for 999 years. Said road was by the last-named company operated until 1880, in which year it was, together with all the property and franchises of the original corporation, transferred to the respondent company, a corporation of the state of Illinois. Section 83, c. 25, Rev. St. 1866, under which the Omaha & Southwestern Company was organized, contained, among other provisions, the following:

“Sec. 83. If it shall be necessary in the location of any part of any railroad to occupy any road, street, alley or public way or ground of any kind or any part thereof, it shall be competent for the municipal or other corporation or public officer or public authority owning or having charge thereof and the railroad company to agree upon the manner and upon the terms and conditions upon which the same may be used or occupied.”

In the year 1884 application was by the last-named company made to the city for permission to lay its tracks over and across certain streets therein, including Eleventh street; and in response to that request an ordinance (No. 729) was enacted and approved, in the following language:

“Said Omaha & Southwestern Railroad Company shall have the right to construct, maintain and operate a line of railroad along, upon, through and across said portion of said streets and alleys as a part of its line; provided that said railroad track and tracks are constructed so as to conform to the grade of said streets as near as may be, and so as to interfere as little as possible with the travel along and upon said streets; and, provided, that nothing herein contained shall be construed as interfering with the right of any property owner to recover from said company any damages resulting to private property by reason of the construction of said railroad, and nothing herein granted shall authorize any interference with the tracks of the Union Pacific Railway Company, now laid and operated by said Union Pacific Railway Company in any portion of the streets and alleys herein named and enumerated.”

Pursuant to said ordinance the respondent soon thereafter constructed a track from Tenth street across Eleventh street, and thence, in a southwesterly direction, to the city limits. Long previous to the last-mentioned date the Union Pacific Railroad Company had, with the consent of the city, constructed 21 or more tracks across Eleventh street, which have ever since been in continual operation for general traffic and for switching purposes, so that the additional tracks therein of the respondent did not materially increase the inconvenience or danger of the public in the use of said street. By sections 1, 2, and 4 of an act entitled “An act to provide for viaducts, bridges and tunnels in certain cases in cities of the first class,” approved March 4, 1885 (Sess. Laws 1885, p. 109, c. 12), it was declared:

“Section 1. That the mayor and city council in any city of the first class shall have power, whenever they deem any improvement, herein provided for, necessary for the safety and convenience of the public, to engage and aid in the construction of any viaduct, or bridge over, or tunnel under any railroad track or tracks, switch or switches in such cities, when such track or switches cross or occupy any street, alley or highway thereof, in the manner and to the extent hereinafter provided.

Sec. 2. Whenever any such viaduct, bridge or tunnel shall be deemed necessary, as provided in the preceding section, the mayor and city council shall have the power to secure and adopt plans and specifications therefor, together with the estimated cost of the work, and thereupon, if the railroad company or companies, across whose tracks or switches the work is proposed to be built, will assume three-fifths (3/5) of the entire cost thereof, and three-fifths (3/5) of all damages to abutting property on account of construction of said viaduct, bridge or tunnel, and secure to the city the payment of the necessary funds to meet it as the work progresses, in such manner and with such security as the mayor and city council shall require, and when the payment of the further sum of one-fifth (1/5) of the money required for said improvement is arranged for in manner satisfactory to said mayor and council, either by private donation or by execution of good and sufficient bond as will protect said city from the payment of said one-fifth (1/5) then the said mayor and council may proceed to contract with the necessary party or parties for the construction of such viaduct, bridge or tunnel, under the supervision of the board of public works of such city, and to provide for the payment of one-fifth (1/5) of the cost thereof by the city, by special tax on all taxable property in such city, and one-fifth (1/5) by special tax to property benefitted, as provided in the following section, if not otherwise provided for.”

“Sec. 4. The city, with the assent of the railroad company or companies aiding in the construction of any such viaduct, bridge or tunnel as herein provided, may permit any street railway company to build its street railway track and operate its railway upon or through the same, upon such terms and conditions and for such compensation as shall be agreed upon between the city and the street railway company. And the compensation paid for such use shall be set apart and used towards the maintenance of such viaduct, bridge...