Chi., R.I. & P. R. Co. v. Taylor

• Decision Date: 29 June 1920
• Docket Number: Case Number: 11102
• Citation: 79 Okla. 142,192 P. 349,1920 OK 253
• Parties: CHICAGO, R.I. & P. R. CO. v. TAYLOR.
• Court: Oklahoma Supreme Court

1920 OK 253

192 P. 349

79 Okla. 142

CHICAGO, R.I. & P. R. CO. v. TAYLOR.

Case Number: 11102

Supreme Court of Oklahoma

Decided: June 29, 1920

Syllabus

¶0 1. Railroads--Franchise-- Legislative Source.

The right to construct, maintain and operate a railroad and receive toll or fare for the transportation of freight and passengers is a franchise which can be exercised only by legislative authority.

2. Same--Status as Public Service Corporations--State Regulation.

While not open to general use like streets and roads, railroads are public highways; they are quasi public institutions; the devotion of their property to the public use affects it with a public interest; and while they are protected by constitutional limitations, they are peculiarly subject to be regulated by the state.

3. Same--Duty to Maintain Safe Crossings Over Highways.

The obligation to construct and maintain safe crossings over streets and highways laid out before the construction of a railroad is imposed upon the railroad by the common law.

4. Same--Requirements Under Common Law.

Under the common law it was the duty of a railroad company when it crossed a highway to do all those things necessary to restore the highway, including the construction of bridges, approaches, or lateral embankments, rendered necessary by the construction of the railroad tracks or grades over or through the highway. This duty is based upon the equitable principle that, inasmuch as the railroad rendered this work necessary, it was therefore just and right that the railroad should bear the expense and burden of restoration.

5. Same-- Powers of Legislature--Police Power.

The Legislature in the exercise of the police powers may operate railroad companies with the duty of maintaining highway crossings, although the street or highway was laid out across the railroad subsequent to the construction of the railroad.

6. Constitutional Law--Police Power of State.

While no court has undertaken to specifically define the outlying boundary lines of that inherent power of the government to enact, within constitutional limitations, laws to promote the order, safety, health, morals, and general welfare of society, denominated, for want of a better name, the police power, of the state, it is firmly settled that such power is an attribute of sovereignty and exists without reservations in the Constitution.

7. Railroads--Regulation-- Police Power--Abolition of Grade Crossings.

In the exercise of its police power, the state may require railroad corporations at their own expense not only to abolish grade crossings, but to build and maintain suitable bridges or viaducts to carry the street or highway across the railroad tracks and entire right of way.

8. Same--Constitutional Law--Grant by Congress to Road in Indian Territory--State Regulation--Franchises.

Section 2 of the act of Congress of March 2, 1887 (24 St. L. 446), granted to the railroad company "a right of way one hundred feet in width through said Indian Territory, and to take and use a strip of land two hundred feet in width, with a length of three thousand feet, in addition to right of way, for stations." Section 9 of said act requires that "said railroad company shall construct and maintain continually all road and highway crossings and necessary bridges over said railway wherever said roads and highways do now or may hereafter cross said railway's right of way, or may be by the proper authorities laid out across the same." Held: (1) That there is no provision in said act expressly exempting the railroad company, or its successors, from the duty to construct and maintain streets and highways across its entire right of way; (2) that franchises and rights of way granted by the public are to be construed strictly against the grantee and liberally in favor of the public; (3) that the act of the Oklahoma Legislature effective August 24, 1908, requiring railroads to build crossings and maintain the highway unobstructed over its entire right of way, is not in conflict with section 10, article 1, of the federal Constitution, prohibiting the states from impairing the obligations of contracts; (4) that said act of the Oklahoma Legislature in defining the duties of the railroad company with respect to highway crossings did not operate to take the property of the railroad for public purposes without just compensation, and is therefore not in conflict with the fifth amendment to the federal Constitution.

9. Railroads--Crossings--Regulation--Police Power.

A railroad crossing is within itself a continuing source and warning of danger, and laws requiring the railroad to construct and maintain the crossings, laws providing the method of constructing crossings, and laws designating the extent of the duties imposed upon the railroad company fall peculiarly within the police powers of the state, because their purpose is not only to guard the public traveling on the highways from harm and injury, but to protect the railroad company, its employees, passengers, and property from injury.

10. Same.

The cost to the railroad company of maintaining the highway or street unobstructed across its entire right of way is compensated for by the consequential reduction and prevention of loss, which otherwise an obstructed and unsafe highway crossing inflicts upon the railroad itself, and its authority to make the highway safe over its entire right of way without awaiting the tardy and uncertain acts of city and township officers, puts the railroad company in a position where it can minimize accidents to the traveling public and its employees, as well as damage to its own property.

11. Constitutional Law--Police Power--Nature.

The police power of the state can neither be abrogated, bargained away, nor alienated, even by express grant, and all contracts and property rights are acquired subject to its fair exercise, and neither the contract clause nor the due process clause in the federal Constitution overrides the power of the state to establish necessary and reasonable regulations under its police powers.

12. Same--Contracts With Municipality--Validity.

As the police powers cannot be surrendered, a contract purporting to do so is void ab initio, and being void, it is impossible to speak of laws in conflict with its terms as impairing the obligations of a contract. But where the terms and obligations agreed upon between a state or municipality on the one hand, and a corporation or individual on the other, are the proper subject-matter of a contract between such parties, and not of that class discussed in L. & N. R. Co. v. Mottley, 219 U.S. 467; their contract, plainly specifying the duties of the parties, legally entered into, falls within the protection of the contract clause of the federal Constitution; and it is not within the police power of the state or municipality to impair the same, because states, municipalities, and other sub-divisions of the state are bound by the same high standard of good faith and morals required of individuals, and the breach of its legal contract by a city or state, instead of promoting the public safety, morals, and good order of society, is in fact immoral and unsafe, because the vitality of the individual conscience will not long survive a benumbed and perverted public conscience. This court does not subscribe to the doctrine that might is right.

13. Same--Territories--Status of Police Power at Advent of Statehood.

Prior to the admission of Oklahoma as a state, the federal government held in trust the police power of the future state, and as trustee thereof had no authority to enter into any contract with a corporation or an individual exempting such individual or corporation from the exercise by the future state of all the sovereignty possessed and vested in one of the 13 original states.

14. Same--Powers of Federal Government-- States.

While the federal government was vested with police powers in the Indian Territory, it had no authority under the federal Constitution to surrender or contract away the police power of the future state, and upon Oklahoma's admission as a state, the powers and sovereignty of the federal government were withdrawn, except those powers the federal government can rightfully exercise in any other state under similar circumstances.

15. Railroads--Crossings in Cities--Statutes.

Sections 611 and 1432, Rev. Laws 1910, construed together, mean this: It is the duty of a railroad company to construct and maintain unobstructed in a safe condition crossings over its entire right of way in such manner as it, at its own risk, shall adjudge to be proper, the city having the authority, however, to require the railroad company to pave so much of said street as may be occupied by its tracks or track and two feet on each side, and when more than one track crosses such street within a distance of 100 feet, measuring from inside rail to inside rail, also to grade, gutter, drain, curb, pave, or improve between its tracks in the same manner as the city may be improving or has improved the other portion of said street.

16. Same--City Improvements at Crossings-- Liability.

The city cannot require the railroad company to improve the crossing in a different manner from the balance of the street contiguous thereto, and when the city exercises its powers conferred by section 611, it takes over the duty and responsibility of maintaining that part of the crossing over the railroad right of way not covered by the paving and improvement required of the railroad company by that section.

17. Municipal Corporations--Unsafe Streets--Ditch at Railroad Crossing-- Nuisance.

A city cannot legally maintain an open catch basin, or open and unguarded excavation for drainage purposes in a street on the railway company's right of way, with or without the consent of the railroad company. Such an open drain three to three and one-half feet deep, lying unguarded between the side walk and the main traveled portion of the street, is a nuisance.

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