St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1890-02-23


Minneapolis.
Without going into an examination of
the rights of other railroad companies,
it Is sufficient for your purpose, l take
ii. TO know Wnat rr.rants have been lnade
TO the Minneapolis ana %. I; nm,S Rail
way company and to the st. Paul, Min
neapolis Il Manitoba Railway company.
The authority in the charter of each of
THESE companies is somewhat similar.
The Minneapolis & st. Louis Railway
company is authorized to construct its
railroad across any public or private
highway, road or street, subject how
ever, to the duty, obligation and liabil-
lty to restore such road or highway to
its former state or in sufficient manner
not to impair its usefulness to the pub
lie. The charter of the st. Paul. Min
neapolis q Manitoba Railway company
provides that sit shall have the right
and authority to construct its said rail-
road and branches upon and along,
across, under or over, any public or
private highway, road. street, plank
road, or railroad, if the same shall be
necessary, but the said company shall
put such highway, road, street, plank
road or railroad. in such condition and
state of repair as not to impair
or interfere with its free and
proper use.' These provisions
have both been passed upon by the SUI
preme court of the state of Minnesota,
and have been held to impose duty
upOn the company in favor of the pub
lie. which is to receive reasonable con-
struction, but which must be literally
construed in favor of the public. OF
course this is not to be understood in
the absolute sense that the company
could do nothing that would in any
degree Interfere with the use Of the
street by the public. The statute must
receive reasonable construction, and the
legislature must be presumed to have
understood that the construction and
ODeratian of railroad upon and across,
under or over, street is necessarily at
tended with some incidental inconven-
fence. What was meant was merely
that the company should put the street
in such condition as to furnish thor
ougbfare reasonably safe. and cOnven-
lent and substantial, as capable of free
and proper use as it was before.
The supreme court of this state has
also held that this duty tof keeping the
crossing in such condition as not to i'll
terfere with it's free and proper use) is
continuing one. 1t is not fulfilled by
bv merely putting the street at the time
GiIN lam Ostu 10 Uuilb Ill SuCl tOIiUiSiOu do
not to impair or interfere with its free
by maintaining it in such conditions as
would have accomplished that end had
the circumstances and conditions origin
ally existing continued. The condition
OF the street or mode of crossing the
railroad might be entirely inadequate
under another, and consequently pro-
vision which at one juncture would be
a discharge of the statutory duty
would at another amount to its viola
ton. The duty prescribed is to keepa
all times and under all circumstances
the streets at points where they are in
tercepted by the railroad in condition
and state of repair so as not to impair or
interfere with their free and proper
use. and if this cannot be done with a
surface crossing, the company must do
it by CARRYING their tracks under or
over the highway, or the highway under
or over their tracks; and the duty of
thus restoring or preserving the free
use of the street includes the doing of
whatever IS needed to accomplish the
required end, and which is rendered
neceSsa ry to be done by reason of the
presence of the railroad in the street.
This language is taken almost verbatim
from the decision OF the supreme court
in one of these crossing cases.
The rights of the public in relation to
the rights of the railroad company as
thus defined may be, as you term it.
''police power; that is. a power which
the public may exercise for its own
there must be an adjudication by a
court of competent jurisdiction before
it can he exercised. Some interroga-
tories seem to imply that you are of
the opinion that the property of the
railroad company, where it is in such a
condition as not to satisfy the necessi-
ties of the public or in the best condi-
ton for the preservation of public
safety, may be removed from the streets
forcibly and summarily. This is
not the fact in case of this kind.
1t is a question for the court to
pass upon and to determine what the
requirements of the public are. This
maize it necessary to go into the courts
with the mandamuS proceedings. These
proceedings have been sustained by the
district court and the supreme court of
this state, but writ of error has been
sent out Of the supreme court of the
United States, and the cases are pend
ing there for the determination of that
court. While l think there is no feder-
al question involved in the controversy,
and that the supreme court of the United
States has nothing to do with it, that
court has refused to consider the mo-
ton to dismiss the writ of error until
the case can be heard on its merits; and
so we are delayed in procuring final
adjudication.
In answer to your sixth question, I am
not aware that lawyers have wasted
time over technicalities. presume the
attorneys for the railroad companies
think they have some ground for the
interference of the federal court, and
they are, of course, holding On to all their
rights. We have been hoping that the
plan recently adopted by the council
as compromise measure might be ac-
cepted by both railroad companies. 1t
has been substantially adopted by one.
1t is decidedly a better plan for the pub
lie than the one included in the pending
litigation. The one sought to be en-
forced by the original mandamus pro-
ceedings is the best one that could have
been adopted at that time under the ex-
listing conditions of the tracks and exist
ing rights of the different companies.
Trusting this will furnish the informa-
ton sought by you, am yours very re-
specially, ROBERT ID. RUSSELL,
CitV A ftnrnpU