#### Chicago & Northwestern Railway Company, Appellant, vs. Railroad Commission of Wisconsin, Respondent.

*April 14*

November *8, 1922.*

*Railroads: Relocation of highways: Benefit to railroad: Assessment of extra cost: Police power of state: Separation of grades: Order of railroad commission.*

1. The state in the exercise of its police power may authorize the relocation of highways in order to protect the public from dangerous railroad crossings and cause the cost thereof to be assessed against the railroad company. •

2. An order of the railroad commission made under sub. 5, sec. 1797 — 12e, Stats., placing on the plaintiff railroad the extra cost of relocating a highway — which the commission found would divert a large part of public travel from two grade crossings of the plaintiff and would also benefit the railroad in that, after the relocation, the maintenance of flagmen at the crossings might be discontinued, and that the cost of the change was less than the benefit to the railroad, — is a valid exercise of the police power of the state, and does not involve an attempt to assess any “benefit” in the sense in which that term is ordinarily used in statutes relating to special assessments.

3. The fact that in all reasonable probability the railroad company will not be required to separate the grades at crossings may be considered in determining the benefits to the railroad from the relocation of a hig'hway.

*4864. The state cannot bargain away its police power.

5. The assessment of the railroad company for the cost of relocating a highway to protect the public from danger at' crossings to the extent of the benefits conferred on it does not preclude the legislature from thereafter requiring the railroad company to separate the grades at crossings.

Appeal from a judgment of the circuit court for Dane county: E. Ray Stevens, Circuit Judge.

*Affirmed.*

*Samuel H. Cady*of Milwaukee, for the appellant.

*C. H. Van Alstine*of Milwaukee, as a friend of the court and by request of appellant.

For the respondent there was a brief by the *Attorney General*and 7. *E. Messerschmidt,*assistant attorney general, and oral argument by *Mr. Messerschmidt.*

The-following opinion was filed May 9, 1922:

Rosenberry, J.

This is an action to review an order of the *Railroad Commission*made pursuant to the provi--sions of ch. 255 of the Laws of 1919.

Inasmuch as the only points raised upon this appeal relate to the reasonableness of the order and the validity of the statute under which it was made, we shall not set out in detail the proceedings, but refer only to such part thereof as is necessary to present the questions raised here.

Sheridan road is a much traveled public highway, being one of the main thoroughfares between Milwaukee and Chicago, passing through the cities of Racine, Kenosha, Waukegan, and other municipalities. About three quarters of a mile south of Lake Park, a residential section of Racine, Wisconsin, this highway crosses the plaintiff’s tracks upon which it operates its passenger trains between' Milwaukee and Chicago, crossing from the easterly side of such tracks to the westerly side. At a point 2,800 feet southerly from this crossing the highway again crosses plaintiff’s railway tracks from the westerly side to the easterly side. The double tracks of the Milwaukee Electric Railway & Light *487Company ran parallel with and on the easterly side of the plaintiff’s right of way between these two crossings, the two rights of way adjoining. The Wisconsin state highway . commission proposed to construct a new highway between these crossings by moving the lines of the Milwaukee Electric Railway & Light Company to the east a sufficient distance to permit of the construction of a new highway along the easterly side of the plaintiff’s right of way so that the highway when constructed would be between the right of way of the plaintiff and the right of way of the Electric Company as relocated. By this construction a large part of the public travel over the two crossings would be diverted and the dangers incident to the traffic crossing the railway tracks, upon which trains were operated at a high speed, would be eliminated.

Prior to the improvement in question each of the crossings was protected day and night by flagmen. The proposed improvement of the highway is what is known as a federal act project, under which the federal government pays one third of the expense, the state one third, and the county one third. The *Railroad Commission*ordered that after the construction of the new highway the. plaintiff should discontinue the maintenance of flagmen at the crossings in question and in lieu thereof install electric wigwag signals. The situation in regard to the crossings is thus stated in the order of the *Commission:*

> “The two crossings involved in this proceeding are both acute-angle crossings. The view of trains from the approaches is not seriously obstructed. However, the acuteness of the angle of crossing makes it necessary to look back over one’s shoulder to ascertain whether a train is approaching from behind. At the south crossing the railway is on a fill and the highway approaches ascend to the tracks from both directions. Recognizing the fact that, on account of the high-speed railway traffic and the heavy highway traffic, the crossings were more than ordinarily dangerous, the railway company voluntarily established con*488tinuous protection by flagmen at each crossing. Under present wage conditions the annual cost of this protection is $5,040. The crossings are about 2,800 feet apart, the highway forming a loop west of the tracks between' these points.”

The *Railroad■ Commission*found' that by doing away with the flagmen and installing electric signals upon present conditions a saving of $4,410 per annum' would be made by the company, which if capitalized on a ten per cent, basis would amount to $44,100, and if capitalized at six per cent, would amount to $73,500. The *Commission*found, taking into consideration all of the elements of benefit, that the plaintiff’s benefit as a result of the relocation would be not less than $40,000 nor more than $90,000.

The *Commission*further found that the extra expense, over and above the post of improving the existing route with the grade crossings retained, which will be incurred in the relocation project for the purpose of avoiding the crossings, is approximately $29,000, and ordered the plaintiff to pay to the treasurer of the state of Wisconsin said sum.

The authority of the *Commission*to proceed in the premises is conferred by sub. 5, sec. *1797*— 12e, Stats.:

> “The commission, upon petition of the Wisconsin highway commission, the county board of any county, the common council.-of any city, the village board of any village or the town board of any town to the effect that one or more of them have undertaken or propose to undertake to relocate an existing highway, to improve an existing highway, or to construct a new highway in such manner as to eliminate an existing highway grade crossing or crossings with any railroad or so as to permanently divert a material portion of the highway traffic from an existing highway grade crossing or crossings with any railroad, shall issue notice of investigation and hearing as provided in section 1797 — 12, and if upon such hearing the commission shall find that the railroad company or companies in interest will be benefited by said highway relocation, improvement or new construction, the commission shall order said railroad company or *489companies to pay to the municipality or municipalities in interest such sum of money as the commission shall find to be reasonably equivalent to the benefits received; provided, however, that if said highway relocation . . .”

The remainder of the section designates the particular officer to whom payment shall be made. No assessment of benefits was made upon the owners of other property adjacent to the highway in question. In making the assessment the *Railroad Commission*considered that the relocation of the highwáy would render unnecessary the separation of the grade of the highway from that of the railway, either by a tunnel or viaduct.

The order is challenged here as being unreasonable, and it is asserted the statute in question is not a valid exercise of the police power of the state; that the statute is unconstitutional for the reason that it contravenes the provisions of the constitution of the United States, particularly that clause of the Fourteenth amendment which guarantees to every person equal protection of the laws; that it contravenes sec. 3 of art. XI of the constitution of the state of Wisconsin because it attempts to authorize the levying of special assessment to pay for improvement located. outside of cities and villages; that it violates sec. 1 of art. VIII of the constitution of the state of Wisconsin in that it disregards the provision that all taxation must be uniform; that it violates sec. 3 of art. XI of the constitution of the state of Wisconsin in that the property of a common carrier by a railroad used in performance of its duty to the public is personal property, and under the provisions of said sec. 3 the levying of special assessments for benefits to personal property is not authorized.

It is ably argued here that the statute in question is an exercise of the power to levy taxes and not an exercise of the police power and for that reason contravenes the constitutional provisions referred to above.

*490The argument is that every statute complete in itself has three parts — the'subject, the object, and the means. *McNeeley v. South Penn Oil Co. 52*W. Va. 616, 44 S. E. 508, 62 L. R. A. 562; *State v. Ferguson,*104 La. 249, 28 South. 917; *School Dist. v. McFarland,*154 Mo. App. 411, 134 S. W. 673; 2 Lewis’s Sutherland, Stat. Constr. § 347. That the act relates to and deals with the relocation of existing highways, the improvement of such highways, and the making of new highways under laws existing at the time of its enactment; hence highways, to that extent, are the subject of the act. That the object or purpose of the act is to impose upon railway companies the burden of paying the cost of such relocation, improvement, and new way to the extent of the benefits accruing therefrom to the railway companies. That the means for enforcing the act are the highway commission and the various municipal authorities and the *Railroad Commission,*and that the act is therefore complete in itself. That highways are not made or improved under the police power, but may be established by condemnation, by grant, by continuous user, or by dedication, and in no other way. That it necessarily follows that the improvement in question was not made under the police power; that an entirely new way is created without the-vacation of either crossing or any part of the old way, thus bringing the ■ matter-//within the rule laid down in *Milwaukee v. C., M. & St. P. R. Co.*168 Wis. 534, 171 N. W. 54.

If the plaintiff’s premises be conceded, the conclusion naturally and irresistibly follows. When this improvement is viewed as a whole, it appears with certainty that the purpose and object of the opening of the highway along the easterly line of the right of way of the plaintiff company was undertaken for the primary purpose of diverting a considerable part of the traffic from the old route and thereby protecting the public from possible injury. - Were the tracks of the railway company not so located as to create *491two dangerous crossings there would have been no need for the relocation of the highway or the establishment of a new way. It is true that in order to achieve the primary purpose it was necessary for the properly constituted authorities to establish a new way, and to that extent the power of the state was exercised for the purpose of procuring a new highway. The primary purpose of the statute referred to is to authorize the *Railroad Commission*to require a railway company to contribute, not exceeding the amount of benefits, the extra cost incurred in the relocation due to the presence of the railway tracks. By the terms of the statute the assessment is limited by the amount of benefits received, and as construed and applied by the *Railroad Commission*it is limited to'the amount of extra cost made necessary by reason of the relocation. There was no attempt in this case to assess to the railroad company any part of the cost of surfacing either the old or the new highway. We do not see, therefore, upon what basis it can be argued that there is any attempt to assess any benefit in the sense in which that term is ordinarily used in the statutes relating to special assessments. What is assessed in this case is the extra cost to which the highway commission was put by reason of the crossings in order to make the highway in question reasonably safe for public travel, that amount being limited, however, by the terms of the statute to the amount of benefits received by the railway company. If there is no benefit there can be no assessment.

We do not discuss the power of the legislature to deal with the matter independently of the question of benefits, as that question is not before us, the assessment being limited as stated.

The state has ample power, in the exercise of the police power, to authorize the relocation of the highway in order to protect the public and to cause the cost thereof to be assessed against the railway company. *Polk v. Railroad Comm.*154 Wis. 523, 143 N. W. 191; *Superior v. Roemer,**492154 Wis. 345, 141 N. W. 250; *Milwaukee v. Railroad Comm.*162 Wis. 127, 155 N. W. 948; *Chicago, M. & St. P. R. Co. v. Milwaukee,*97 Wis. 418, 72 N. W. 1118.

The purpose of the statute is not, as argued, to establish a new way, but to divert traffic so as to avoid the crossings and thus promote public safety.

The new way might have been opened up for the purpose of protecting the public whether or not the highway had been improved in the manner proposed in this case. The fact that, concurrently with the opening of the new way, the highway throughout its length was resurfaced with concrete, we regard as immaterial so far as the consideration of this question is concerned. The *Railroad Commission*found that a very material part of the traffic ordinarily passing over these crossings would be diverted in such a manner that it would not pass over either crossing. The old crossings were retained for the convenience of those who had improved their property on the westerly side of the right of way in reliance upon the fact that the highway was adjacent to their premises. The public authorities had just as much power to deal with the situation as they would’ have had had the two crossings been eliminated and the old highway vacated. The power of the legislature to deal with the situation in such a way as to promote the general public interest is not limited to any particular method or any particular means. It may deal with it in such a manner as will best promote the public interest, unless its power in that respect is in some way restricted by constitutional provisions.

While it is claimed that the order is upon its face unreasonable, ’ no .authorities are cited in support of that proposition, and for the reasons stated we think it a valid exercise of the police power and see no grounds upon which an allegation that the order is unreasonable can be based.

It.is urged that the *Railroad Commission*in making the order took into consideration the fact that the separation of *493grades at the crossings in question would not be necessary-in the future. It is alleged that the state cannot bargain away the right to exercise the police power and that there is nothing in a legal sense to hinder a future legislature from requiring the grades to be separated, and that therefore it was improper to take that matter into consideration in determining the amount of the benefits. The *Commission*did take that fact into consideration, as we think it had a right to do.

It is true that the state cannot bargain away its police power and that at some future time the defendant may be required to separate the grades at these crossings. The *Railroad Commission*may, however, take into account the fact that in all reasonable probability it will not be required to do so.

*By the Court.*— Judgment affirmed.

A motion for a rehearing was denied, with $25 costs, on November 8, 1922.