Chicago Company v. Nebraska
The state of Nebraska, on the relation of the city of Omaha, filed its petition in the district court of the Fourth judicial district of Nebraska on January 19, 1895, asking judgment for the issuing of a writ of mandamus requiring the Chicago, Burlington & Quincy Railroad Company to repair, in accordance with the directions of a city ordinance enacted under certain statutes of the state legislature, the south one-third of the viaduct at Eleventh street in the city of Omaha, a structure forming a part of that street, and spanning a number of railroad tracks, one of which was owned and used by the said company, the others being owned by the Union Pacific Railway Company, and used by it and two other companies. The defendant filed its answer on March 6, 1895, alleging therein, among other things, that the legislature of Nebraska had no power to impose upon the defendant the duty of maintaining or repairing the viaduct, for the reason that to do so would be in violation of the obligations of the contract, hereinafter described, under which the viaduct was constructed, and contrary to the provisions of the constitution of the United States. At the trial of the case, evidence was adduced by both parties; but there was substantially no dispute respecting the facts, the controversy having relation only to the validity, interpretation, and effect of legislative enactments, and to the validity of city ordinances. On May 1, 1895, the court entered judgment in favor of the city, and directed that a peremptory writ of mandamus issue to the defendant company, commanding and requiring it to make the repairs in question, the same to be commenced immediately, and carried forward without unnecessary delay. The defendant, having been denied a new trial, took the case on writ of error to the supreme court of the state, and, upon the affirmance by that court of the judgment of the said district court (66 N. W. 624), sued out a writ of error bringing the case here, alleging in its assignment of errors that the statutes of Nebraska, which were held by the supreme court of that state to be valid, and to require the company to make the said repairs, were repugnant to the constitution of the United States, because they impaired the obligation of contracts, abridged the company's privileges and immunities, deprived it of its property without due process of law, and denied to it the equal protection of the laws, and that the judgment enforcing those statutes was therefore erroneous.

The facts presented are substantially as follows:

The defendant company is a corporation of the state of Illinois, has complied with the laws of the state of Nebraska, so as to be authorized to do business as a railroad company in that state, and maintains a general office therein, and is the grantee of and successor to the Burlington & Missouri River Railroad Company in Nebraska, a corporation of the state of Nebraska, which company was the lessee of the Omaha & Southwestern Railroad Company, a corporation organized in the year 1869, under chapter 25, Rev. St. Neb. 1866. That chapter contains, among other provisions, the following:

'Sec. 83. If it shall be necessary, in the location of any part of any railroad, to occupy any road, street, alley, or public way or ground of any kind, or any part thereof, it shall be competent for the municipal or other corporation or public officer or public authorities owning or having charge thereof, and the railroad company, to agree upon the manner, and upon the terms and conditions upon which the same may be used or occupied; and if said parties shall be unable to agree thereon, and it shall be necessary, in the judgment of the directors of such railroad company, to use or occupy such road, street, alley, or other public way or ground, u ch company may appropriate so much of the same as may be necessary for the purposes of such road, in the same manner and upon the same terms as is provided for the appropriation of the property of individuals by the eighty-first section of this chapter. * * * '

'Sec. 86. Any railroad company may construct and carry their railroad across, over or under any road, railroad, canal, stream or watercourse, when it may be necessary for the construction of the same; and in such cases said corporation shall so construct their railroad crossing as not necessarily to impede the travel, transportation or navigation upon the road, railroad, canal, stream or watercourse so crossed. * * *'

'Sec. 103. Every railroad corporation shall maintain and keep in good repair all bridges and their abutments which such corporation shall construct, for the purpose of enabling their road to pass over or under any turnpike, road, canal, watercourse or other way.'

On May 14, 1884, an ordinance of the city of Omaha was approved, granting to the Omaha & Southwestern Railroad Company the right of way through portions of certain streets and alleys, including Eleventh street, in that city. The ordinance was in part as follows:

'Said Omaha and Southwestern Railroad Company shall have the right to construct, maintain and operate a line of railroad along, upon, through and across said portions of said streets and alleys as a part of its line: provided, that said railroad track and tracks are constructed so as to conform to the grade of said street as near as may be, and so as to interfere as little as possible with the travel along and upon said streets: and, provided, that nothing herein contained shall be construed as interfering with the right of any property owner to recover from said company any damages resulting to private property by reason of the construction of said railroad, and nothing herein granted shall authorize any interference with the tracks of the Union Pacific Railway Company now laid and operated by said Union Pacific Railway Company in any portions of the streets and alleys herein named and enumerated.'

On March 4, 1885, an act of the legislature of Nebraska was approved, entitled 'An act to provide for viaducts, bridges and tunnels in certain cases, in cities of the first class,' whereby it was provided that the mayor and city council of any city of the first class should have power, whenever they deemed any such improvement necessary for the safety and convenience of the public, to engage and aid in the construction of any viaduct or bridge over or tunnel under any railroad track or tracks, switch or switches, in such cities, when such track or switches crossed or occupied any street, alley, or highway thereof, in the manner and extent provided for in the act, and should have the power to pass any and all ordinances, not in conflict with the act, that might be necessary or proper for the construction, maintenance, and protection of the said works.

By virtue of this act, the city of Omaha, which was then a city of the first class, and the Union Pacific Railway Company and the Omaha & Southwestern Railroad Company, the lessor of the defendant company, executed an agreement in writing February 1, 1886, providing, among other things, for the construction of a viaduct on Eleventh street across the tracks of those companies. The agreement was in part as follows:

'That the said parties of the second part [the Union Pacific Railway Company and the Omaha & Southwestern Railroad Company], in pursuance of the provisions of an act of the legislature of the state of Nebraska, entitled 'An act to provide for viaducts, bridges and tunnels in certain cases, in cities of the first class,' do hereby assume and agree to pay, as may be required by the mayor and city council of said city, three-fifths of the Eleventh street, and three-fifths of the damages Eleventh street, and three-fifths of the damages to abutting property on account of the construction of such viau ct not otherwise provided for by waivers or private contributions, such entire cost and damages not to exceed the sum of ninety thousand dollars ($90,000), the amount so assumed and agreed to be paid being three-fifths of the entire cost and damages, to be proportioned between said parties of the second part as follows: Three-fourths thereof to be paid by said Union Pacific Railway Company, and one-fourth thereof to be paid by said Omaha and Southwestern Railroad Company. * * * The plans and specifications for said viaducts, before contracts for the construction thereof are entered into, shall be submitted to and approved by said parties of the second part, and should plans and specifications be adopted by said party of the first part, and approved by said party of the second part, which shall increase the said cost and damages beyond the amounts herein limited, then the said parties of the second part are to pay their respective proportions of said increased cost and damages, in the same manner and according to the same division as hereinbefore agreed.'

Under the provisions of this agreement, the viaduct was built, and in 1887 it was opened to the use of the public. On March 30th of that year, a short time before the viaduct was completed, an act of the legislature was approved, entitled 'An act to incorporate metropolitan cities, defining, regulating and prescribing their duties, powers and government.' The act, which took effect from its passage, declared that all cities in the state of Nebraska then having a population of 60,000 inhabitants or more, according to the state census of 1885, and all cities in the state which should thereafter have a population of 60,000 inhabitants or more, should be considered and known as cities of the metropolitan class, and should be governed by the provisions of the act. Laws Neb. 1887, c. 10. At that time the city of Omaha, according to the state census of 1885, had a population in excess of the said number, and under the act was incorporated a city of the metropolitan class. Section 48 of this act, as amended by an act approved in 1893 (chapter 3, Laws Neb. 1893), is as follows:

'Sec. 48. The mayor and council shall have power to require any railroad company or companies, owning or operating any railroad track or tracks upon or across any public street or streets of the city, to erect, construct, reconstruct, complete and keep in repair any viaduct or viaducts, upon or along such street or streets, and over or under such track or tracks, including the approaches to such viaduct or viaducts as may be deemed and declared by the mayor and council necessary for the safety and protection of the public. Whenever any such viaduct shall be deemed and declared by ordinance necessary for the safety and protection of the public, the mayor and council shall provide for appraising, assessing and determining the damages, if any, which may be caused to any property by reason of the construction of such viaduct and its approaches.

'The proceedings for such purpose shall be the same as provided herein for the pur pose of determining damages to property owners by reason of the change of grade of a street, and such damages shall be paid by the city, and may be assessed by the city council against property benefited.

'The width, height and strength of any such viaduct, and the approaches thereto, the material therefor, and the manner of the construction thereof shall be as required by the board of public works, as may be approved by the mayor and council.

'When two or more railroad companies own or operate separate lines of track to be crossed by any such viaduct, the proportion thereof, and the approaches thereto, to be constructed by each, or the cost to be borne by each, shall be determined by the mayor and council.

'It shall be the duty of any railroad company or companies, upon being required as herein provided, to erect, construct, reconstruct or repair any viaduct, to proceed within the time and in the mannr required by the mayor and council, to erect, construct, reconstruct or repair the same, and it shall be a misdemeanor for any railroad company or companies to fail, neglect or refuse to perform such duty, and upon conviction any such company or companies shall be fined one hundred dollars ($100), and each day any such company or companies shall fail, neglect or refuse to perform such duty shall be deemed and held to be a separate and distinct offense, and in addition to the penalty herein provided any such company or companies shall be compelled by mandamus or other appropriate proceeding to erect, construct, reconstruct or repair any viaduct as may be required by ordinance as herein provided. The mayor and council shall also have power whenever any railroad company or companies shall fail, neglect or refuse to erect, construct, reconstruct or repair any viaduct or viaducts, after having been required so to do as herein provided, to proceed with the erection, construction, reconstruction or repair of such viaduct or viaducts by contract or in such other manner as may be provided by ordinance, and assess the cost of the erection, construction, reconstruction or repair of such viaduct or viaducts against the property of the railroad company or companies required to erect, construct, reconstruct or repair the same, and such cost shall be a valid and subsisting lien against such property, and shall also be a legal indebtedness of said company or companies in favor of such city, and may be enforced and collected by suit in the proper court.'

In May, 1890, the Union Pacific Railway Company, which now owns 21 tracks crossing Eleventh street beneath the said viaduct, entered into agreements with the Chicago, Rock Island & Pacific Railway Company and the Chicago, Milwaukee & St. Paul Railway Company, by the terms of which agreements it granted to those companies the right to possess and use, in common with itself, its main and passing tracks between certain points, which tracks are among the said 21 tracks, for the period of 999 years. Subsequently, in that year, the said companies entered into possession of the interest granted them, and have since continued to use the said tracks in common with their grantor.

By a concurrent resolution of the city council of Omaha, adopted July 21, 1892, it was provided that the city engineer and the committee on viaducts and railways should examine the roadbed of the said viaduct, and report whether or not it was necessary to repave it. Acting under this resolution, the committee made an examination, and on the 23d of the following month reported in writing that both the roadway and sidewalk of the viaduct were in a dangerous condition. By authority of the city, the viaduct was closed to general public travel some time in 1892, but continued to be used by a street-railway company, whose tracks were laid across it, until the autumn of 1894, since which time the city has not permitted it to be used for any travel.

By an ordinance approved December 12, 1893, the city declared the necessity of repairing the viaduct, and empowered and directed the board of public works to prepare plans and specifications for the repairs. Such plans and specifications were thereafter prepared, and were submitted to the council December 15, 1893, by the board of public works and the city engineer; and on January 30, 1894, the council passed an ordinance, No. 3752, approved February 3, 1894, which is as follows:

'An ordinance approving the plans and specifications submitted by the board of public works for the repairing of the Eleventh street viaduct over the railroad tracks and ordering the repairing of said viaduct to be done.

'Whereas, it has been and hereby is deemed and declared necessary for the safety and protection of the public that the Eleventh street viaduct be repaired as herein required; and

'Whereas, it is right, proper and reasonable that the railroad companies owning or operating railway tracks across said Eleventh street should make said repairs to said viadc t: Therefore

'Be it ordained by the city council of the city of Omaha:

'Section 1. That the plans and specifications submitted by the board of public works of the city of Omaha, December 15, 1893, for the repairs of the Eleventh street viaduct over the railroad tracks, upon and across Eleventh street, from a point near Jackson street to a point near Mason street, in the city of Omaha, as prepared by the city engineer of said city, be and the same are hereby approved and adopted.

'Sec. 2. That the Union Pacific Railway Company be and is hereby ordered, directed and required to repair that portion of said Eleventh street viaduct from the north end of said viaduct south for a distance of two-thirds of the entire length of said viaduct; and the Chicago, Burlington and Quincy Railroad Company, grantee and successor to the Missouri River Railroad Company in Nebraska and the Omaha and Southwestern Railroad Company, be and is hereby ordered, directed and required to repair that portion of said Eleventh street viaduct commencing at the south end thereof, and extending northward a distance of one-third of the entire length of said viaduct; the said repairs to be made in accordance with said plans and specifications, and to be done under the supervision of the city engineer; the said repairs to be commenced without unnecessary delay and fully completed, as herein required, within ninety days from the passage and approval of this ordinance.

'Sec. 3. This the city clerk be and is hereby directed to furnish to said Union Pacific Railway Company and to said Chicago, Burlington and Quincy Railroad Company, owning or operating railroad tracks upon and across said Eleventh street under said Eleventh street viaduct, a duly certified copy of this ordinance, without unnecessary delay, and that the city engineer is hereby directed to furnish to each of said railroad companies a copy of said plans and specifications, and to superintend the work of making said repairs.

'Sec. 4. That this ordinance shall take effect and be in force from and after its passage.'

Certified copies of this ordinance and of the said plans and specifications were furnished to the defendant company, but it refused to make the said repairs, or to take any action with reference to making the same; wherefore the present proceeding was instituted, as aforesaid.

Chas. J. Greene, for plaintiff in error.

W. J. Connell, for defendant in error.

Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court. 

Notes
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