State, ex rel. City of Omaha v. Union Pacific Railroad Co.
| Decision Date | 31 October 1913 |
| Docket Number | 17,621 |
| Citation | 143 N.W. 918,94 Neb. 556 |
| Parties | STATE, EX REL. CITY OF OMAHA, APPELLEE, v. UNION PACIFIC RAILROAD COMPANY ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Affirmed.
AFFIRMED.
William Baird & Sons, B. H. Dunham, Herman Aye and Edgar M. Morsman Jr., for appellants.
Benjamin S. Baker, John A. Rine, W. C. Lambert and L. J. Te Poel contra.
Relator applied for a peremptory writ of mandamus compelling defendants to construct at their own expense on Nicholas street, in Omaha, a viaduct running east and west over their intersecting railway tracks. Defendants resist the application on the ground that the city attempted to require the construction of the viaduct without making provision for closing the street where their tracks cross it at grade. The writ was allowed, and defendants have appealed.
Was the writ properly allowed? Conforming to statutory procedure, the city, by adoption of plans, by resolution, and by ordinance, directed the railway companies to construct a viaduct on Nicholas street over their tracks, but made no provision for closing the street where the tracks cross it at grade. The plans for the viaduct require a roadway 24 feet wide and a sidewalk space 8 feet wide, the whole to occupy about half the street along the north side. A witness for defendants testified: "The plans of this proposed viaduct, so far as I know, are as well arranged as might be possible." That the structure planned would be sufficient to accommodate the traffic of Nicholas street is not questioned. Defendants admit that the grade crossing is dangerous and that a proper viaduct is essential to public safety. Did the city exceed or abuse its authority? Power to require railway companies to construct above their tracks at street crossings such viaducts "as may be deemed and declared by the mayor and council necessary for the safety and protection of the public" is in direct terms conferred by the legislature upon the city of Omaha. Comp. St. 1911, ch. 12a, sec. 128. Such an enactment is a valid exercise of police power. Chicago, B. & Q. R. Co. v. State, 47 Neb. 549, 66 N.W. 624; Phoenix Mutual Life Ins. Co. v. City of Lincoln, 91 Neb. 150, 135 N.W. 445; Chicago, B. & Q. R. Co. v. Nebraska, 170 U.S. 57, 42 L.Ed. 948, 18 S.Ct. 513; Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 41 L.Ed. 979, 17 S.Ct. 581; New York & N. E. R. Co. v. Bristol, 151 U.S. 556, 38 L.Ed. 269, 14 S.Ct. 437; Northern P. R. Co. v. Duluth, 208 U.S. 583, 52 L.Ed. 630, 28 S.Ct. 341; State v. St. Paul, M. & M. R. Co., 98 Minn. 380, 108 N.W. 261.
To justify their refusal to comply with the demands of the city defendants argue that its action is void, because it attempted to burden them with the expenses of a viaduct which will not promote the public safety. In support of this defense they offered proof tending to show that they are willing to comply with proper plans for a viaduct; that the one planned by the city would be a detriment to them in the operation of their trains across Nicholas street, and that, to avoid inclines at the approaches and exposure to wind, rain, heat, and cold, the public would continue to use the unclosed street where it crosses the tracks at grade. What is a proper viaduct? It is not the province of the railway companies to determine that question as a police regulation. The municipal action which resulted in the demand for a highway over defendants' tracks, where they cross Nicholas street, was the exercise of police power--an attribute of sovereignty committed by the legislature to the city, but not to defendants. Within constitutional limits, the mayor and council are the sole judges as to when and how such police power shall be exercised. State v. Withnell, 91 Neb. 101, 135 N.W. 376. In considering the question presented, defendants' conception of a proper viaduct, therefore, is immaterial, except in so far as it may indicate in some way that the city abused or exceeded its authority. There is no greater merit in the assertion of defendants that the viaduct planned by the city would be detrimental to them in the operation of their trains across Nicholas street. The statutory justification for the exercise of the police power is "the safety and protection of the public." This was the primary object, rather than the convenience of the corporations which created a place...
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