94 Neb. 556 | Neb. | 1913
Relator applied for a peremptory writ of mandamus compelling defendants to construct at tlieir 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 ivas 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
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. 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 pro
Would the public generally continue to use the grade crossing? Would obstructions supporting the viaduct and failure to use it make traffic on Nicholas street more dangerous than before? In attempting to answer these questions in the affirmative, defendants offered to prove that at Argenta, Kansas, where they say there is a viaduct similar to that planned by Omaha, 90 per cent, of the travel by foot and wagon crosses the railway track at grade. Proof of this nature was rejected by the trial court, but its admission and consideration would not result in a holding that the city of Omaha abused or exceeded its power. It is conceded that the viaduct planned would be sufficient to accommodate the traffic of Nicholas street. Provision has therefore been made for the safety of the public. If 90 per cent, of the people would voluntarily abandon a safe and convenient viaduct for a place of danger on railroad tracks among moving trains and engines, as defendants assert, the city would nevertheless have control of the grade crossing and of the public travel there. It would still have power to close the street and to protect.the public. Its authority in that respect can neither be abandoned nor bartered away. It should not be presumed in advance that official obligations to protect the public will be neglected. Notwithstanding the offered proof, it will be presumed that the city, in passing ordinances, acted with full knowledge of the conditions relating to the subject of municipal legislation. State v. Withnell, 91 Neb. 101. While defendants were operating their railways at grade, industries sprung up on adjacent land. The owners thereof may have vested rights. Private individuals own real estate abutting on Nicholas street near the tracks of defendants. The closing of the street may interfere with private rights and damage private property. In passing ordinances, it was proper for the mayor and council to consider existing conditions and to relieve the city and
The conclusion is that the writ was properly allowed.
Affirmed.