Missouri, Kansas & Texas Railway Co. v. Oklahoma

delivered the Opinion of the Court.

The railroad of plaintiff in error runs through the city of McAlester, Oklahoma.. At Comanche Avenue the main

The line was built about 1873 on land granted by Congress to the company — then known as. the Union Pacific Railroad Company, southern branch — for the construction of its railroad. Act of July 26, 1866, § 8, c. 270, 14 Stat. 289 , 291. The city of South McAlester and the townsite of McAlester were laid out subsequently, pursuant to the Act of Congress of June 28, 1898, § 14, c. 517,. 30 Stat. 495 , 499. In platting these townsites, streets were laid out to the boundary line on each side of the land constituting the company’s right of way. No vember 8, 1901, the city passed Ordinance No. 74. At

The court held that the state laws gave the commission full jurisdiction over all highways where they cross railways; that the commission had authority to order the crossing in question and to assess the cost of it against' the city and the railway company, but not more than 60 per cent, against the city; that the company was the owner in fee of its right of way lands; that they could not be appropriated or damaged for public use without just compensation, and that the commission could not enforce obedience to its order to construct the grade crossing until the question of damage to the fee had been' determined either by amicable settlement or by condemnation proceedings. ^

The order, as interpreted ,and affirmed^directly contravenes the provisions of the ordinance in respect of thé Comanche Avenue crossing. It sets at naught the undertaking of the city to bear the cost of construction and the. agreement of the company to give the city the right of way for the street crossing and to waive all claims for damages. The effect is to require the company forthwith to prepare the plan and estimate, and to direct the company — upon the determination- of its just compensation and-the consummation of arrangements by the city to pay the portion of the cost, if any, that may be imposed upon

But defendants in error contend that the ordinance is void because it attempts to surrender police power; and therefore that there is no such contract.'

It is elementary that for the safety and convenience of the public, the State, either directly or through its municipalities, may reasonably regulate the construction and use of highways where they cross railroads. The legitimate exertion of .police power to that end does not violate the constitutional rights of railroad companies. They may be required at their own expense to construct bridges or viaducts whenever the elimination of grade crossings rea-' sonably may be required, whether constructed before or after the building of the railroads. Northern Pacific Railway v. Duluth, 208 U. S. 583 , 597; Chi., Mil. & St. P. Ry. v. Minneapolis, 232 U. S. 430 , 438; Mo. Pac. Ry. v. Omaha, 235 U. S. 121 , 127; Erie R. R. Co. v. Public Utilities Comm’rs, 254 U. S. 394 , 409, 412. And such costs are not included in the just compensation which the railroad companies are entitled to receive. Cincinnati, I. & W. Ry. v. Connersville, 218 U. S. 336 , 343; Chi., Mil. & St. P. Ry. v. Minneapolis, supra, 440 , If the enforcement of its provisions operates to hamper the State’s power reasonably to regulate the construction and use of the Comanche Avenue crossing, then undoubtedly the ordinance is void. Chicago & Alton R. R. v. Tranbarger, 238 U. S. 67 , 76; Atlantic Coast Line v. Goldsboro, 232 U. S. 548 , 558; Denver R. G. R. R. Co. v. Denver, 250 U. S. 241 , 244.

The precise question is whether the agreement of the city to bear the cost of construction is inconsistent with the proper exertion of the police power.

The ordinance didrnot purport to limit-the number of crossings that might-be opéned. Retention by the company of the right to resort to litigation to determine whether the opening of additional streets across the railroad. is reasonably necessary does not at all impinge upon police power. Quite independently of the ordinance, the opening and regulation of such crossings is subject to judicial scrutiny, and action that is arbitrary or- capricious will be held invalid. Denver & R. G. R. R. Co. v. Denver, supra, 244 . Indeed, the reservation contemplates the exertion of the police power and plainly implies that the parties did not intend to restrict the authority of the city to open crossings.

The agreement of the city to pay the amounts stipulated for the opening of certain crossings does not involve or contemplate any surrender of the power of eminent domain. It was authorized to contract, purchase or condemn as it saw fit. The opinion of the state court rightly approves amicable settlement of the compensa

This case is not like Northern Pacific Railroad v. Duluth, supra, cited by defendants in error. There the city had the right of way for the street, and a grade' crossing existed for many years. The elimination of that crossing became necessary. The company refused to comply with the city’s demands in that respect. Then a contract was made. The city agreed to build a bridge to carry the street over the railroad tracks and the company agreed to contribute $50,000 to its cost. The city undertook to maintain the bridge over the tracks for 15 years and to maintain the approaches perpetually. The city built the bridge at a cost of $23,000 in addition to the amount paid by the company. Years later, when repairs were needed, the company refused to make them. This court following the decision of the Minnesota supreme court ( 98 Minn. 429 ) held that the contract was without consideration, against public policy- and void. The Northern Pacific Company gave up nothing. The city already had the right of way. The company might have been required to build the bridge. The contract relieved it of a part of -the cost,- and attempted for all time to suspend the proper exertion of the police power in respect of maintenance. The ordinance now before us is very different from the situation and contract considered in that case.

There is nothing in the ordinance that involves any attempt to interfere with or hinder the proper exertion of police power. Evidently it was the intention of the parties to make a permanent settlement in respect of the crossings covered by the ordinance. The city was em-

Judgment reversed.