Chicago, R.I. & P. Ry. Co. v. Taylor
| Decision Date | 29 June 1920 |
| Docket Number | 11102. |
| Parties | CHICAGO, R.I. & P. RY. CO. v. TAYLOR. |
| Court | Oklahoma Supreme Court |
Refiled as Modified September 7, 1920, and Rehearing Denied.
Syllabus by the Court.
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.
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.
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.
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.
The Legislature, in the exercise of the police powers, may onerate 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.
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.
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.
Section 2 of Act Cong. March 2, 1887 (24 Stat. 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, art 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.
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 employés, passengers, and property, from injury.
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 employés, as well as damage to its own property.
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.
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-matters of a contract between such parties, and not of that class discussed in L. & N. R. Co. v. Mottley, 219 U.S. 467, 31 Sup.
Ct. 265, 55 L.Ed. 297, 34 L. R. A. (N. S.) 671, 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 subdivisions 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 unmoral 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.
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.
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.
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.
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 Rev. Laws 1910, § 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.
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, 3 to 3 1/2 feet deep, lying unguarded between the sidewalk and the main traveled portion of the street, is a nuisance.
It was the railroad company's duty to maintain unobstructed crossings over its entire right of way, and it was at fault in suffering the city to maintain an open excavation on its right of way and in close proximity to its railroad tracks, when it must have foreseen that travelers in horse-drawn vehicles would probably be injured by it remaining open and unguarded.
The railroad company, as well as the city, is liable where a horse takes fright, without any negligence on the part of the driver, at something for which the railroad or municipality is not responsible, and gets beyond the control of the driver, and...
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