130 Minn. 480 | Minn. | 1915
The village of Clara City, in Chippewa county, petitioned the district court for a writ of mandamus commanding respondents to build and maintain a sidewalk on the south side of Bunde street across the right of way of respondents and to connect with sidewalks on the street on both sides of the right of way. A temporary writ was issued and served. Respondents demurred to the petition, the demurrer was sustained, and the relator appealed to this court.
The right of way of the railroad companies is 300 feet in width where it is crossed by Bunde street. There are three tracks, all approximately in the middle of the right of way. The station of defendant is immediately north of Bunde street, which is one of the principal streets in the village, and the only street that crosses the right of way. There are business houses on both sides of the right of way, and it is necessary for people doing business in the village to cross the right of way several times a day. The petition alleges that the sidewalk as ordered built by the village council is very essential. It was admitted for the purposes of the demurrer that the part of the street occupied by the roadbed or tracks of the railway companies was and is properly, securely and sufficiently planked the full width of the street, the planking extending the full length of the ties and between the tracks as required by statute, and that the sole object and purpose sought to be attained by these proceedings is to compel the companies to construct a sidewalk on one side of the street across the entire right of way, so that the sidewalk will connect with the said planking in either direction, but not so as to in-
The village relies for its right to compel the construction of the sidewalk upon Laws 1913, p. 65, chapter 78, which amends R. L. 1905, § 1995, prescribing the duty of railroad companies to construct and maintain grades and planking at street crossings between tracks, by adding after the requirement that planking shall be placed between all tracks that are not more than 15 feet apart, this language: “And a suitable sidewalk shall be constructed by said company to connect with and correspond to said walks constructed and installed by the municipality or by owners of abutting property, but cement or concrete construction shall not be required in track space actually occupied by the railroad ties if some substantial and suitable sidewalk material is used in lieu thereof.”
A sidewalk is generally regarded as a local improvement, and where a municipality is given authority in the premises it may assess abutting or benefited property for the cost of construction. If such be the only view to be taken of the sidewalk which, by this proceeding, the defendants are to be required to construct, then the court below rightly sustained the demurrer. For it is the settled law of this state, as evidenced by numerous decisions, that the statutes providing for a gross earnings tax by railway companies exempt the property of such company that is used for railroad purposes, not only from all general or ordinary taxes, but from all local, special or extraordinary assessments or charges. First Division St. P. & Pac. R. Co. v. City of St. Paul, 21 Minn. 526; City of St. Paul v. St. Paul & S. C. R. Co. 23 Minn. 469; Patterson v. Chicago, R. I. & P. Ry. Co. 99 Minn. 454, 109 N. W. 993.
But we think a sidewalk over the right of way of a railroad where it crosses a public street in a village or city may be considered from another point of view. The state, in the exercise of its police power, may, for the safety, convenience and welfare of the public, require a railroad to maintain its right of way over a street in. a reasonably safe condition. Even at common law the burden was cast'
It is now settled that a municipality is impliedly clothed with the police power of the state to the extent that where the necessity exists, it may compel a railroad corporation at its own expense to carry the street or highway over or under its right of way and maintain the highway in a fit condition for travel. This may include paving and sidewalk, at least so far as the right of way extends (State v. Northern Pac. Ry. Co. 98 Minn. 429, 108 N. W. 269), and on the second appeal 99 Minn. 280, 109 N. W. 238, 110 N. W. 975. See also State v. St. Paul, M. & M. Ry. Co. 98 Minn. 380, 108 N. W. 261, 28 L.R.A.(N.S.) 298, 120 Am. St. 581, 8 Ann. Cas. 1047, and Chicago, M. & St. Paul Ry. Co. v. City of Minneapolis, 115 Minn. 460, 133 N. W. 169, 51 L.R.A.(N.S.) 236, Ann. Cas. 1912D, 1029, and the opinions affirming these cases in the Federal Supreme Court in 208 U. S. 583, 28 Sup. Ct. 341, 52 L. ed. 630, 214 U. S. 497, 29 Sup. Ct. 698, 53 L. ed. 1060, and 232 U. S. 430, 34 Sup. Ct. 400, 85 L. ed. 671. These decisions clearly indicate that the burden of maintaining a reasonably safe and convenient crossing where a street or highway crosses a railroad’s right of way is upon the railroad, although such burden, in particular instances, may be exceedingly onerous. It would seem to follow that what may be reasonably incident to this burden, in the way of regulation, is for that authority to prescribe which is exercising the police power of the state.
It goes without saying that in the legislature is vested the police power of the state in its fullest amplitude. It is also clear that the statute (section 1995, R. L. 1905), of which chapter 78, p. 65, of the Laws of 1913 is an amendment, was enacted, in virtue of this police power of the state, to safeguard and facilitate public travel. Unless the statute as amended clearly exceeds this power it should be sustained.
The statute insofar as it requires planking does rightfully, we think, impose an uncompensated burden upon the railroads. The decision to the contrary in State v. District Court for Hennepin County, 42 Minn. 247, 44 N. W. 7, 7 L.R.A. 121, is virtually overruled by the one in State v. St. Paul, M. & M. Ry. Co. 98 Minn. 380, 108 N. W. 261, 28 L.R.A.(N.S.) 298, 120 Am. St. 581, 8 Ann. Cas. 1047. See also Chicago, B. & Q. Ry. Co. v. Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 L. ed. 979, and Chicago, M. & St. P. Ry. Co. v. Milwaukee, 97 Wis. 418, 72 N. W. 1118. If planking a public highway, where the same crosses the tracks of a railroad, may be so connected with public safety and convenience that under the police power of the state the railroad company may be compelled to do it without expense to the public, it would seem to follow that a statute which requires a performance of this duty, burdensome though it be, cannot be said to impose a tax or assessment upon the company.
There can be no controlling difference between the requirement of sidewalk and of planking. Planking is, to be sure, more to
It is said the defendant, if obligated to lay a sidewalk across its right of way, might likewise be required to construct sidewalks along such right of way where it borders a highway or street. The sufficient answer is that the statute does not call for anything of the kind.
The contention is also that defendant has so much larger right of way than it needs or occupies for its three tracks that for the greater distance the sidewalk, as a safety provision, is out of place. It is to be assumed that the right of way is such only as is needed for and devoted to railway purposes and such as is rightfully exempt from taxes and assessments because of the payment of the gross earnings tax. Within its right of way defendant may, at any time, place additional tracks or change the location of those it maintains, and, for that reason, it also seems proper, that the safety of the passage for the traveler for the whole distance should be placed upon the railroad company. The statute merely prescribes that it shall maintain a sidewalk over its legitimate right of way to correspond and connect with the walk maintained under the supervision of the municipality so as to afford the pedestrians a reasonably safe and convenient crossing. This regulation does not appear to us to be an unreasonable or arbitrary exercise of the police power of the state. Nor do we consider the same to be a disguised attempt to levy a local assessment. The amendment of 1913 is designed to provide for the pedestrians a safe and convenient passage along the streets
This opinion expresses the views of all the members of the court except the writer, who, while readily admitting that a sidewalk across the right of way is a convenience, if not a necessity, is not able to see how it is made so by defendant’s ownership or use of the right of way. My own view is that the statute in question is not a valid exercise' of the police power.
Order reversed.