| Ill. | Jun 18, 1908
delivered the opinion of the court:
The elevation of appellee’s tracks rendered necessary-tearing up the pavement and sidewalks and lowering the surface of the street under the tracks for a sufficient distance on each side to provide proper and suitable approaches to the sub-way. All this was done by appellee at its own expense. Appellant contends that it is appellee’s duty to forever maintain and keep in repair said street and sidewalks; that the ordinance requiring it to do this is' not in violation of the charter provisions of appellee, and is a valid exercise of the police powers of the city of Chicago under its charter and under section 8 of “An act in relation to fencing and operating railroads,” approved March 31, 1874, in force July 1, 1874.
The law is well settled by decisions of this court that said section 8, and other sections of the same act, are police regulations, and apply to railroads built before as well as after the adoption of said act, and its enforcement in cases to which it is applicable does not violate the constitutional provisions against taking property without due process of law, or taking private property without just compensation, or against impairing the obligation of contracts. (Chicago and Northwestern Railway Co. v. City of Chicago, 140 Ill. 309" date_filed="1892-01-18" court="Ill." case_name="Chicago & Northwestern Railway Co. v. City of Chicago">140 Ill. 309; Illinois Central Railroad Co. v. Willenborg, 117 id. 203.) If it be determined that section 8 is applicable to the facts in this case the appellant’s position would be correct.
Section 10 of appellee’s charter provides that “said corporation may construct their said road and branches over or across any stream of water, water-course, road, highway, railroad or canal which the route of the road shall intersect, but.the corporation shall restore the stream or water-course, road or highway thus intersected to its former state or in a sufficient manner not to have impaired its usefulness. Whenever the track of said railroad shall cross a road or highway, such road or highway may be carried under or over said track, as may be found most expedient.”
The charter of appellee constitutes a contract between it and the State and is entitled to the same observance as a contract between natural persons. (Illinois Central Railroad Co. v. People, 95 Ill. 313" date_filed="1880-06-12" court="Ill." case_name="Illinois Central Railroad v. People">95 Ill. 313; Illinois Central Railroad Co. v. City of Bloomington, 76 id. 447; People v. Ketchum, 72 id. 212.) It is well understood, of course, that this contract, like all others, is subject to the power of the State, in the exercise of its police powers, to pass such laws as may be necessary to protect the health and provide for the safety of persons and property. In order, therefore, to render appellee liable to re-construct the pavement and repair the sidewalks in question, it must appear either that this was made its duty by the terms of its charter or by a law passed by the State in the exercise of its police powers.
The charter of appellee contains no provision making it the duty of the railroad company to maintain a street or highway intersected by it. It is made the duty of the corporation to restore the road or highway to its former state or in a sufficient manner not to have impaired its usefulness, and while we have no doubt of the right of the State, in the exercise of its legitimate police powers for the protection and safety of persons and property crossing the railroad track, to require the corporation to do anything reasonably necessary for the accomplishment of that object, no 'other object or purpose would justify the State in adding this additional burden to the provisions of the contract between it and the corporation. In Town of Lake View v. Rose Hill Cemetery Co. 70 Ill. 191" date_filed="1873-09-15" court="Ill." case_name="Town of Lake View v. Rose Hill Cemetery Co.">70 Ill. 191, it was said the police power of the State is co-extensive with self-protection, and is not inaptly termed “the law of overruling necessity;” and it was there further said that it is “that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety and welfare of society.” In City of Bloomington v. Illinois Central Railroad Co. 154 Ill. 539" date_filed="1895-01-14" court="Ill." case_name="City of Bloomington v. Illinois Central Railroad">154 Ill. 539, speaking of the objects and purposes sought to be accomplished by the legislature by section 8, this court said (p. 544) : “Safety of persons and property is the object of the requirement. The grading of the approaches and the planking between the rails and tracks make it possible for men and teams to cross easily and quickly, and thus avoid collision with passing trains, thereby insuring their own safety and the safety of the persons and property upon the train.” Here the street in question did not cross the railroad tracks but passed under' them. Appellee is required to maintain its structures supporting the tracks in such condition as to render it safe for persons and property passing underneath them, but nothing it could do in the way of maintaining and re-paving the streets would afford any protection from trains to persons or property passing underneath, its tracks. It is not denied that when the appellee elevated its tracks it restored the streets and sidewalks to proper condition, and in our opinion its duty ended there. The future maintenance of the streets was not imposed upon the corporation by its charter nor by any law passed in the exercise of the police powers of the State. In Ruhstrat v. People, 185 Ill. 133" date_filed="1900-04-17" court="Ill." case_name="Ruhstrat v. People">185 Ill. 133, it was said the police power is limited to the enactment of laws demanded for the public health, comfort, safety or welfare of society.
In Blanchard v. Lake Shore and Michigan Southern Ry. Co. 126 Ill. 416" date_filed="1888-11-15" court="Ill." case_name="Blanchard v. Lake Shore & Michigan Southern Railway Co.">126 Ill. 416, and Cleveland, Cincinnati, Chicago and St. Louis Railway Co. v. Halbert, 179 id. 196, it was held that the statute requiring a bell to be rung for eighty rods before reaching a crossing had no application to a crossing under a viaduct, where the travel over the tracks was upon the elevated structure and out of the way of the trains passing over the tracks. In the last mentioned case it was said (p. 202) : “The statute being applicable to crossings of streets and railroad tracks, it would follow, if its application is not properly restricted to crossings having a common grade, that trains operated upon tracks elevated above or depressed below the level of the streets in cities, where the trains are perhaps at all times within much less than eighty rods of a crossing, would be required to keep the whistle blowing or the bell ringing continuously, to the great annoyance of the public, amounting practically to a nuisance. It is not indispensable to the protection of the persons and property of those passing along a highway with intent to cross the track of a railroad which crosses the highway either' so far above or so far below the level of the highway as that there is no danger a collision will occur, the statute should be given the construction given it by the trial court, for, as we have seen, in the entire absence of any statutory regulation the law requires companies operating railroad trains shall adopt every precaution which common prudence would dictate to be necessary, under the particular circumstances of the occasion, to notify persons about to proceed along the highway on, over or under the track of the railroad, that a train is approaching the place of crossing. In the case at bar the highway at the place of crossing consisted of a bridge so far above the track of the road as to preclude all danger of collision. Whether notice of the approach of the train was given by ringing the bell or sounding the whistle of the locomotive was proper for consideration, together with other facts and circumstances appearing in the proof as bearing upon the question of fact whether such notice of the approach of the train had been given as ordinary prudence and due regard for the safety of the citizen demanded; but it was not true, as a matter of law, that it was the statutory duty of the company to cause the ‘bell of the locomotive to be rung or its whistle to be sounded from a point when the same (the locomotive) was eighty rods distant from said highway and until the crossing was reached,’ as the court advised the jury by the instructions.” The requirement that the bell be rung or the whistle sounded in approaching a crossing is a police requirement of the same character as the requirement of section 8 as to crossings, and if the former has no application to crossings where the travel is over or under the railroad tracks, we cannot see how the latter could have such application.
Much reliance is placed upon State v. St. Paul, Minneapolis and Manitoba Railway Co. 98 Minn. 380" date_filed="1906-06-29" court="Minn." case_name="State ex rel. City of Minneapolis v. St. Paul, Minneapolis & Manitoba Railway Co.">98 Minn. 380, where the Supreme Court of Minnesota held the railroad company was liable to construct and maintain a bridge over its tracks in the city of Minneapolis. We do not regard that case as determining the questions involved in this case.
In Illinois Central Railroad Co. v. City of Bloomington, supra, the city laid out a street within its corporate limits across the right of way of the railroad company. That case arose prior to the passage of section 8 in its present form. At that time the statute required railroad corporations to construct and maintain the crossings of public highways outside the corporate limits of cities and villages. The city of Bloomington by ordinance directed the railroad company to construct the crossing and approaches thereto. The railroad company refused to do so and the work was done by the city and suit brought to recover the costs thereof. The city of Bloomington relied upon its charter authorizing it by ordinance to require railroad companies to construct and keep in repair suitable crossings at the intersections of their roads, with the streets. It was held that to require the railroad company to comply with the ordinance would be placing an additional burden upon it, and that the ordinance therefore was in violation of the constitution.
In our opinion the ordinance adopted by the city of Chicago was invalid, and said city had no authority, either under section 8 of the statute referred to or the provisions of its charter, to require appellee to re-pave the street, and the court correctly sustained the demurrer and dismissed the petition.
The judgment is therefore affirmed.
Judgment affirmed.