The Birmingham age-herald., 1902-10-03

While the necessity for some protection to lite at the grade crossings of the city is apparent to all, and while there is an almost universal demand that the city council should take steps to have gates or other safety appliances established at these crossings, there has been some question as to the legal power of the city council to compel the railroad to construct such fixtures.
 In the following card Alex T. London the well known lawyer, states that cities as a rule have such power, and if upon investigation the city attorney should be of the opinion that the city council of Birmingham has not said authority under it's charter, that the legislation under it's police power can pass an act giving the city council the right to regulate grade crossings and that such an act would be constitutional.
 Following Is MT. London's card:
 MT. London's Card.
 To the Editor of the Age-Herald.
 The necessity for additional protection to, or the abolition of grade crossings in this city seems apparent and the only question left open from what has been stated in your columns Is as to the power of the authorities to make and enforce proper laws for that purpose.
 The supreme court of the United States has. within the past few years, had cases before it in which this ques- tion has been presented, and I think it as weIl that the public should be ad- vised as to what their rights are in the premises.
 In 1889, the legislature of Connecticut passed an act authorizing the authorities of any city or town to petition the rail- road commissioners whenever in their judgment any railroad crossing was dan- gerous to the public, that they should make an order requiring the railroad company to abolish grade crossings at their own cost and expense. The act provided for a hearing before the rail- road commissioners and for the necessary orders to be made and authorized an appeal The case went to the supreme court of the United States under this statute, and the constitutionality of the act was assailed on several grounds in the case of New York & Northeastern Railroad company vs. Bristol, report ed in 151 U. s. 556. It was held that this Connecticut statute was a proper exer- else of the police powers, and that the railroads were subject to legislative con- 
 power to impose upon the railroad com pany the entire expense of a change of grade at a highway crossing.
 May Change Grade.
 The power of the city council to change the grade of streets at railroad crossings is expressly recognized in Wabash rail road vs. Defiance, 167 U. s. SS.
 In Chicago. Burlington and Quincey Railroal company vs. Nebraska, ITO U. s. 57. when contract had been made for a viaduct, it was held that 1t was the paramount duty of a state legislature to secure the safe ty of the community at an important railroad crossing within a populous icty, and that it was within the power of the legislature to supervise, control and change agreements from time to time entered into between the city and the railroad crossing within a populous city, such crossing, saving any rights previ- the repairs of such viaduct on the rail- road company in such proportion as it saw fit.
 The power reserved in the legislature, under the general name of police pow CTS" which simply means the right to pass laws to protect the lives, health and well-being of the citizens, cannot be granted or contracted away, and applied with equal force to street railroads as to railroads. and if upon examination the city attorney shall conclude that suff- cient power is not vested in the city authorities in regard to grade crossings in lu.s city, and if it shall appear that the railroad commisson has not sufficent power to enforce such regulations, ap- peal can be made to the legislature as its next session. in the form of a bill to be prepared under the direction of the city