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2. RAILROADS 95- HIGHWAY CROSSING CONSTRUCTION AND MAINTENANCE.

Under the statute which requires a railway company that builds its road over a street or highway to restore it "to its former state, or to such a state as to have not necessarily impaired its usefulness," a railway company which constructs a railroad over a street of a city is bound, not only to make a suitable crossing, but to maintain the same as long as it continues to occupy the street, and to that end it may be required to build and maintain a bridge at the crossing of a highway if such a structure is rendered necessary by the construction of the railroad.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 274-283; Dec. Dig. 95.]

block, and then made a bend, turning north and crossing Benton street again two blocks distant at its intersection with Walnut street. The company constructed its road near the middle of Benton street and from a point at North street to one about a half a block beyond Walnut street, a distance of about 21⁄2 blocks, it dug a new channel for Coon creek north of its track and closed up the old channel. The earth taken from the bed made for the new channel was used by the railway company in making the embankment or grade on which the track was laid. The track was 3.57 feet higher than the original

3. RAILROADS 95-RAILROAD CONSTRUCT-grade of Benton street, and the new channel ED ALONG STREET-CROSSINGS-CONSTRUCTION AND MAINTENANCE.

When a railway company is given permission to build its road along a street of a city upon the condition that the company will construct and maintain suitable crossings at all points of intersection with other streets, it is the duty of the company, which builds along that street and over others, to make crossings appropriate to the situation at the points of intersection; and where the company in the course of constructing its road diverts a small creek from its natural channel into an artificial one along the side of its track and across a street, using the earth obtained in digging the channel to make an embankment or grade for its road, and the railroad and channel so made render the construction of a bridge over a street across which the railroad is built necessary for the safety and convenience of those using the street, it is incumbent upon the railway company to construct and maintain such bridge or other structure, and, when reasonably necessary, to rebuild and replace it with a new one.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 274-283; Dec. Dig. 95.]

Appeal from District Court, Allen County. Action by the City of Iola against the Missouri Pacific Railway Company. From judgment for plaintiff, defendant appeals. Affirmed.

W. P. Waggener and A. E. Crane, both of Atchison, for appellant. G. R. Gard and Ewing, Gard & Gard, all of Iola, for appel

lee.

as made by the railway company for the creek is 6.34 feet lower than the rails of its track. The railroad and the new channel so made practically rendered Benton street useless for ordinary travel for a distance of 22 blocks, extending from North street to a half a block beyond Walnut street. At the intersection of Benton and Walnut streets the channel made by the railway company is about 40 feet wide, and the height and character of the grade and the depth of the channel practically destroyed the crossing and made Walnut street impassable at this place. To overcome this difficulty and make the crossing passable, the railway company about the time its road was built erected a wooden bridge over the channel, which has been maintained by the railway company ever since that time. That bridge has become so weakened by decay and use that it is no longer safe for public travel. The city is now improving Walnut street and has by build a cement bridge over the excavation ordinance required the railway company to or channel made by the railway company in the construction of its road and make a suitable crossing there, and, the company having failed to comply with the requirement, this proceeding was brought to compel the building of the bridge and the making of a suitable crossing at this place.

JOHNSTON, C. J. In this action the city [1, 2] It is conceded to have been the duty of Iola asks a peremptory writ of mandamus of the railway company to restore Walnut to compel the Missouri Pacific Railway Com- street and make a suitable crossing there at pany to build a bridge at the intersection of the time the railroad was built and the exWalnut and Benton streets in that city. The cavation made across the street. It is also railroad was built through Iola in 1881, and conceded that to make a suitable crossing it preliminary to its construction the city enwas the duty of the company at that time acted an ordinance granting to the company to build the bridge at the intersection of the right to build its road along Benton Walnut and Benton streets; but it is insiststreet, which runs east and west. The granted that this fulfilled its obligation, and that

was made on the condition:

"That said railroad company constructs and maintains suitable crossings on said street and all points of intersection thereof by other streets and highways within the limits of said city."

In constructing its railroad on Benton street, the company diverted a small stream called Coon creek from its regular course. It had run across Benton street near the intersection of Benton and North streets and ran in a southwesterly direction about a

it is not required to maintain the bridge after a crossing was so made. Independent of statute and under the common law, it is the duty of a railway company which constructs a road across a highway to restore the highway by some reasonably safe and convenient means to its former condition. State ex rel. City of St. Paul v. Minnesota T. Ry. Co., 80 Minn. 108, 83 N. W. 32, 50 L. R. A. 656. We had a statute in 1881, and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

It is still in force, which provides that a railway company which builds a railroad across a street or a highway or along or upon any stream of water shall restore the street, highway, or stream "to its former state, or to such a state as to have not necessarily impaired its usefulness." Gen. Stat. 1909, § 1763, par. 4. Under this statute, the privilege of crossing a highway carries with it the duty of a railway company, not only to restore the highway, but it is a continuing duty to maintain it in its former or a suitable condition for travel so as to meet the requirements of the situation at that place. In State v. Mo. Pac. Ry. Co., 33 Kan. 176, 187, 5 Pac. 772, 779, it was said:

"A railroad company has no right to render the streets of a city unsafe or dangerous; and, in all cases where a railroad company is per: mitted to use a street for railroad purposes, it should be compelled to restore the street as far as practicable to that same condition of safety and usefulness as the street would occupy if it were not used for railroad purposes at all, and the railroad company should be compelled to maintain this condition of safety and usefulness as long as it continues to use and occupy the

street.'

that it was required to build a bridge where its road crossed Walnut street, and, under the authorities, it is its duty to maintain a suitable bridge at this crossing as long as it uses and occupies the street, and, when reasonably necessary, to rebuild or replace it with a new one. State ex rel. v. Railway Co., 95 Kan. 22, 147 Pac. 801, L. R. A. 1915E, 751. The turning of the waters of Coon creek into the channel made by the company in making its grade in Benton street, which appears to have been done with the consent of the city, did not relieve it from the duty of making and maintaining suitable crossings at the intersections of the streets, and the bridge in question is a part of the crossing at the intersection of Walnut street. Board of County Com'rs v Duluth, R. W. & S. R. Co., 67 Minn. 213, 69 N. W. 898.

Objection is made to one of the findings of the trial court, but we discover nothing in it which prejudicially affects the result

reached.

The judgment of the district court is affirmed. All the Justices concurring.

STATE ex rel. BREWSTER, Atty. Gen., v.
CUMISKEY, State Inspector of Oils, et al.
(No. 20124.)

In performing the duty of restoration, the company may be required, if it be reasonably necessary to a suitable crossing, to construct and maintain a bridge and its approaches. State v. Irrigation Co., 63 Kan. 394, 65 Pac. 681; City of Emporia v. Railway Co., SS (Supreme Court of Kansas. Feb. 12, 1916.) Kan. 611, 129 Pac. 161; City of Newton et al. v. Chicago, Rock Island & Pacific Ry. Co., 66 Iowa, 422, 23 N. W. 905; See v. Railroad Co., 123 Iowa, 443, 99 N. W. 106; State ex rel. City of St. Paul v. Minnesota T. Ry. Co., 80 Minn. 108, 83 N. W. 32, 50 L. R. A. 656; State ex rel. v. St. Paul, M. & M. Ry. Co., 98 Minn. 380, 108 N. W. 261, 28 L. R. A. (N. S.) 298, 120 Am. St. Rep. 581, 8 Ann. Cas.

1047.

The duty of making and maintaining a crossing covers whatever structures are necessary and reasonable, including the necessary approaches, although a part may be outside of the right of way of the railroad. Farley v. C., R. I. & P. R. Co., 42 Iowa, 234; L. & N. R. R. Co. v. Commonwealth, 149 Ky. 459, 149 S. W. 898; Moberly v. K. C., St. J. & C. B. Ry. Co., 17 Mo. App. 518; Moberly v. K. C., St. J. & C. B. Ry. Co., 98 Mo. 183, 11 S. W. 569; Railroad v. State, 128 Tenn. 172, 159 S. W. 601; Roxbury v. Railroad Company, 60 Vt. 121, 14 Atl. 92; 3 Elliott on Railroads, §§ 1097, 1107.

[3] Apart from the common-law and statutory duties of the company respecting the restoration of the street, there was the contract obligation provided in the ordinance granting the company the right to occupy the streets, which was accepted by the company, to the effect that it would construct suitable crossings at the intersections of streets, and it included the added and continuing duty of maintaining such crossings. The defendant interpreted this obligation to mean

(Syllabus by the Court.) INSPECTION 2-TAXATION 40-INSPECTION FEE-VALIDITY OF STATUTE. for the inspection of kerosene, gasoline, benzine, The fee of 10 cents per barrel chargeable and other petroleum products under section 8 of chapter 200 of the Laws of 1913, is clearly and grossly in excess of the amount reasonably necessary to effectuate the lawful purposes of the act. At the time of its enactment, and ever since that time, the law was, and has been, depended on by the executive and legislative departments of the state government as a revenue measure to bring to the state treasury large sums of money in known excess of the cost of administering the law as an inspection law. The Legislature of 1915, although cognizant of cents per barrel was an adequate inspection fee, the facts, and although of the opinion that 3 failed to change the law. The fee is charged and collected for revenue purposes, and not fore that portion of section 8, fixing the fee at merely to defray the cost of inspection. There10 cents per barrel as an inspection fee, is void. Section 1 of article 11 of the Constitution, requiring a uniform and equal rate of asfee as a property tax, and no other provision sessment and taxation, forbids collection of the of law authorizes collection of the fee.

[Ed. Note.-For other cases, see Inspection, Cent. Dig. § 2; Dec. Dig. 2; Taxation, Cent. Dig. 88 68-89; Dec. Dig. 40.]

Mandamus by the State, on the relation of S. M. Brewster, Attorney General, against Frank Cumiskey, State Inspector of Oils, and others. Peremptory writ denied.

S. M. Brewster, Atty. Gen., for plaintiff. C. A. Braley, of Kansas City, Mo., and F. S. Jackson, of Topeka, for defendants.

Some

BURCH, J. The action is one to test the validity of the oil inspection law. It takes the form of mandamus by the state to compel the state oil inspector to turn into the treasury certain oil inspection fees which were paid to him under protest. Oil refining companies interested in the fees were made parties and made returns to the writ. testimony has been taken, and the cause is presented for decision on the writ, the returns, and the evidence, including some official documents of which the court takes judicial notice. The claim is that the law operates as a revenue measure, and not as an inspection law for the protection of the people of the state, and that it violates the Constitution of the United States and the Constitution of the state of Kansas.

The law in question is chapter 200 of the Laws of 1913, which superseded sections 3938 to 3960, inclusive, of the General Statutes of 1909 (chapter 170, Laws of 1899, as amended by chapter 180, Laws of 1909), all of which were repealed. Kerosene, gasoline, benzine, and other petroleum products, whether manufactured in this state or not, must be inspected before being offered for sale or used for consumption for illuminating, heating, or power purposes in this state. Inspection is made by a state inspector and a sufficient number of deputies to do the work, not exceeding six. The state inspector receives a salary of $2,000 per year and his traveling expenses. Each deputy receives a salary of $1,200 per year and his traveling expenses. Salaries and expenses are paid by warrants drawn on the state treasury. Inspection is secured by means of a system of penalties. It is a criminal offense for any one to sell or attempt to sell the oils required to be inspected without first having them inspected. Any agent, dealer, or vendor of oils, who shall draw off such oils from a car tank or other vessel into a receiving reservoir before inspection and before receiving a certificate or car tank seal authorizing the oil to be drawn off, is guilty of a criminal offense. Every person, company, or corporation in the state selling or dealing in oils required to be inspected is obliged to report in full and in detail to the auditor of state all receipts and invoices of oil on or before the 10th of every month. Neglect to do this is a criminal offense. The charge for inspection is 10 cents per barrel of 50 gallons, which is paid to the inspector. The inspector forwards his collections to the state inspector, who pays them to the state treasurer, who places them in the general revenue fund. The state inspector is required to make an annual report on or before the 25th of December of each year of the inspections made by him and his deputies during the preceding year.

The act of 1913 superseded a law providing that inspection should be accomplished by a state inspector and a sufficient number of local inspectors to do the work. A schedule

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1909 oil inspection was very profitable to the state. The net profits for the year 1906 were $18,011.95. For 1907 the net profits were $19,990.78. For 1908 the net profits were $20,210.61. The law of 1909 not only afforded a large revenue to the state in excess of the cost of inspection, but it provided positions for the politically faithful who could be depended on "to look after things" in their respective localities. Year after year the state inspector's reports pointed with pride to a substantial increase in net revenues to the state over preceding years. The law of 1913 corrected the political evils, left the service as adequate and as efficient as it had been, but clung to the profit to the treasury. The state inspector's report to the Governor at the close of the year 1913 reads, in part, as follows:

"Prior to April 1, 1913, at which time the present inspection law became effective, the oil inspection department comprised 124 local inspectors, located throughout the state at the various refineries and tank stations. Under the present law, the number of inspectors was reduced April 1st to six, without impairment of the efficiency of the service of the department to the public, and with material financial say ing to the state as is hereinafter set out. inspectors are now performing the same service as did 124 under the old system and the department has been freed from criticism on the score that its revenues were being dissipated to reward political favorites.

Six

"The six deputy inspectors are located at the various refineries throughout the state, where all oil and gasoline is properly inspected and the inspection certificates issued therefor before it is unloaded from tank cars into receiving tanks, or before it is barreled for shipment. Each of these deputy inspectors is fully provided with all necessary instruments, blanks and records for the proper and expeditious conduct of his duties."

The same matter was inserted in the report made to the Governor in 1914, just before the Legislature of 1915 assembled. This report also contains the following:

"At this time there are twelve refineries ac tively in operation in the state. After the first of the year there will be thirteen in operation, twelve of which are operated as independent companies, not connected with the Standard Oil Company, and all of whom are refining and selling oil within the state. The reports on file in the office of this department, and in the office of the auditor of state show that during the year ending November 30, 1914, this department has inspected a total of 443,253 barrels of oil and 456.650 barrels of gasoline making a gross total of 899,903 barrels inspected by the department during the year. By referring to former reports of the department, you will note that this is an increase of 65,693 barrels of oil and gasoline inspected over the previous year.

"No reports of kerosene explosions filed in this office and no reports of inferior gasoline." The law requires the state auditor to make a biennial report, which he does shortly before the biennial sessions of the Legislature. Sections 8873 and 8874 of the General Statutes of 1909 provide as follows:

"In such biennial reports the receipts and expenditures for each of the two fiscal years covered thereby shall be so stated as to correctly show the financial condition of the treasury for each of such years separately. He may also suggest plans for the improvement and manage

ment of the public revenues, when he deems it proper to do so.

in his official report a detailed estimate of the "It shall be the duty of the auditor to include expenditures to be defrayed from the treasury for the two next ensuing fiscal years, respectively, specifying therein each object of expendiprovided for by permanent or temporary approture, and distinguishing between such as are priations, and such as are required to be provided by law, and showing the means from which such expenditures are to be defrayed."

In his estimate of probable income to the general revenue fund from fees for the years 1916 and 1917, the state auditor, in his report submitted on December 15, 1914, included the sum of $80,000 for each year from oil inspection fees. In his estimate of appropriations to be made for the same years the auditor recommended only the usual appropriation of $14,100 per annum and proposed a saving of $4,200 per year of this sum, as appears by the following suggestion: "A saving of $4,200 a year can be effected without any impairment in efficiency by abolishing the office of state oil inspector, doing away with one of his deputies, and cutting the contingent fund for oil inspection from $4,000 to $3,000 a year. The office work now being done by the oil inspector and one deputy could be done by the stenographer. This stenographer and the other five deputies could be attached to the state auditor's department.

"As it is now, five deputies and the stenographer do practically all the work. The oil indlemen.' They transmit the report of the five spector and the oflice deputy are simply 'middeputy inspectors, prepared and checked by the stenographer, to the auditor's office. For this service to the state the oil inspector receives $2,000 and the deputy $1.200 a year, with traveling expenses. Their work could just as well be done from the office of the state auditor."

The Legislature of 1915 made no reduction in the inspection force and made the usual appropriation, but, recognizing the indefensible disparity between the amount of inspection fees received and the cost of inspection, reduced the fee from 10 cents per barrel to 3 cents per barrel. The Governor vetoed the bill on two grounds, that the reduction was unreasonable, and that it would impair the usefulness of the oil inspection department. The usefulness of the oil inspection department did not depend in any particular on the fees charged for inspection. The number of men employed, the compensation they received, and the appropriation for their salaries and expenses, remained exactly the same. The reasonableness of an inspection fee is governed by settled principles of law and depends solely upon the relation of cost of inspection to collections for inspection, allowing a fair margin for variation. At 3 cents per barrel, the margin above cost of inspection for the year 1914 would have been more than the total cost of inspection, and the margin for the year 1915 would have been nearly twice the total cost of inspection.

As the production and use of refined pe troleum products increase, inspection returns increase, and, as the state inspector's reports and the evidence show, increase at a much greater rate than the cost of inspection. Be

fore 1913, oil inspection had become a reliable source of revenue. The act of 1913 gave the treasury more money than ever before, above the cost of inspection. Its revenue producing qualities were fully demonstrated before the Legislature of 1915 assembled. The proof shows that the oil refining companies memorialized the two Houses of the Legislature of 1915 on the subject of the operation of the inspection law. With this and abundant other information before it the Legislature formally declared that 3 cents per barrel was a sufficient inspection fee by passing House Bill No. 551. This bill as originally introduced provided for a fee of 5 cents per barrel. It was amended in the House to read 3 cents per barrel and was passed by both Houses in its amended form. The experience of the year 1915 confirms the legislative declaration, but the law was not changed, and fees continue to be charged and collected which bear no rational relation whatever to cost of inspection.

In September, 1914, the refining companies commenced to pay under protest. This action was commenced in May, 1915. In December, 1915, the state inspector filed an affidavit to be used as evidence in the case containing the following:

In 1914 the department inspected nearly 900,000 barrels of oil. In 1915 it inspected more than 1,200,000 barrels of oil. This was done at a cost of less than the annual appropriation of $14,100 per year for the purpose. The court is inclined to think that, if so many were necessary, 24 new men, competent to do the work, could be secured at the same price as those who are now serving, and that the state inspector's original estimate could safely be reduced $24,000 more, bringing the amount necessary to conduct the department in a proper and efficient manner down to $46,000 per year. But whether the amount were $46,000 per year or $70,000 per year, the receipts for the year 1915, in which the necessity for an increased appropriation first arose, were $115,673.17, after deducting fees collected for inspecting oil shipped outside the state. If the present inspecting force and the present contingent fund were doubled, the net profit to the state on oil inspection would be enormously greater than the cost of inspection. All the evidence, however, as to what some other inspection law might accomplish and cost, is beside the issue. The court has before it a definite inspection law which the Legislature chose to enact, and the results of its operation. If the Legislature has adopted a limited and inefficient scheme which costs but little, it cannot charge and put into its treasury as clear profit on that scheme vast sums of money which might be expended on some other scheme if it were adopted.

"Affiant believes, after a careful consideration of all the information in his possession, and from the experience of the administration of his department, that the efficient administration of the work of the department for such full inspection of petroleum and its products, including gasoline and kerosene, will necessitate an appropriation by the state of Kansas of not less than $100,000 annually, and that the total Some deputy inspectors include in their revenue from the fees of such inspection, at the affidavits statements that the fees received rate allowed and provided by law, will not materially exceed the necessary expenses of the ad-state do not defray the cost of inspection. for inspecting foreign oil brought into the

ministration of said law."

The refining companies cross-examined him. On cross-examination he reduced his estimate, without contention, $30,000. His estimate of $70,000 included the employment of a force of 30 deputies at a salary of $2,000 per annum each. In his affidavit he had this to say of the six men actually in the service receiving $1,200 per year:

"Affiant further states that all of said deputy inspectors are competent and efficient men, and well skilled in the work of inspecting oils and the products of petroleum required by law to be inspected."

On cross-examination he testified as follows:

"Q. Have you been forced to accept any inspectors under this law that you would not employ under the other law?

"A. Oh, no."

In 1914, after substantially two years' experience under the act of 1913, the state inspector reported that the efficiency of the service had not been impaired by reducing the number of deputy inspectors to six men, who were accepting $1,200 per year as compensation for their services. The auditor was of the opinion that the chief inspector and one deputy might be dispensed with and that the contingent fund might be reduced $1,000 without impairing the efficiency of the service.

Objection is made to the consideration of these opinions. Without the objection they would convey no information to the court, unaccompanied as they are by a presentation of the facts, if any there be, upon which they were based. The fact, if it be a fact, that the state is taxing its domestic oil industry to pay the cost of inspecting foreign oil, is too important to be established by rule of thumb, and might of itself imperil the law. The same impotence characterizes testimony given by the state inspector that the cost of inspecting the product of several small refineries, which he said "do a little once in a while," is greater than the fees received. If facts were produced the court would be able

to draw its own conclusions. In no event, however, has the cost of inspecting foreign oil and the products of small refineries been as much as $14,100 per year. Conceding that a considerable part of the annual appropriation has been consumed in such inspection, the collection of the great sums charged for inspecting other oil cannot be justified. While certain inescapable inequalities in the operation of inspection laws are to be expected and must be endured, a law cannot be an inspection law as to some who are within its provisions and a special property tax law

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