safety and convenience of the public in use of said street, and they have been duly required and notified to build and maintain the same, refuse and neglect to construct the same, or any portion thereof, or to take any steps, measures, or means for the commencement of said work of constructing said viaduct; and that without said viaduct said street at said crossing is unsafe for public travel and public use, by reason of said railroad tracks crossing the same, and by reason of the running and operation of cars, engines, and trains over and across the same; that there is no plain or adequate remedy at law by which said railroad companies can be compelled to comply with the law, or the duty imposed upon them in the construction and maintenance of said viaduct, and plaintiff is without remedy in this case, except by the authority of this court, by a writ of mandamus."

So much of the foregoing ordinance as is necessary to be quoted

reads as follows:

"Section 1. That it is necessary to prevent accidents, and for the public convenience it requires, and the safety of the public demands, that a viaduct be constructed over the railway tracks crossing Sixth Street, between Utah Avenue and Main Street, in the eity of Atchison; and that it is necessary to have such viaduct. constructed, and said railway tracks and street bridged over, in order to render said street safe and convenient for the travel of the public, and to restore it to as safe a condition as before said railway tracks crossed the same; and that said crossing in its present state is unsafe and inconvenient for public travel.

"Sec. 2. That the Atchison, Topeka & Santa Fe R. R. Co., the Missouri Pacific Ry. Co., the Central Branch Union Pacific R. R. Co., and all other companies owning right of way and operating railway over and through right of way across said Sixth Street, between Utah Avenue and Main Street, shall erect, construct, and maintain over said railway tracks and road-beds of said companies, along said Sixth Street, and over the entire width thereof, a suitable and proper viaduct or bridge, substantially constructed and safe, with sufficient walls on each side of the roadway of the same, with suitable and necessary approaches thereto, at a reasonable and proper grade, and inclined so as to permit the same to be conveniently used as a street, and for public travel by footmen and vehicles, and at such height as to permit engines and trains to pass under the same without unnecessary danger to said structure.

"Sec. 3. That the city marshal of said city forthwith serve a copy of this ordinance, duly certified by the city clerk, upon each of the above-named railroad companies, and such other railroad companies, if any, as he may find having right of way along and over said Sixth Street, between Utah Avenue and Main Street, and that he file in the office of the city clerk an affidavit showing the manner and date and service of a copy of this ordinance; and that

the same shall be notice to said railroad companies to commence the erection and construction of said viaduct; and that said railroad companies shall thereupon, within ten days after the service of such notice, duly made upon them, commence the erection and construction of said viaduct, in good faith; and that the same shall be completed within six months from the date thereof, and in suitable condition for public travel."

The defendants filed separate answers. the substance of which is set forth in the opinion of the court. The opinion of the court also states all the other necessary facts.

John C. Tomlinson for plaintiff in error.

Everest & Waggener, A. A. Hurd, and Mills & Wells for defendants in error.

VALENTINE, J.-This was an action of mandamus, brought October 6, 1883, in the district court of Atchison County, by the county attorney, in the name of the State of Kansas, against the Missouri Pacific Ry. Co., the Central Branch Union Pacific R. R. Co., and the Atchison, Topeka & Santa Fe R. R. Co., to compel the defendants jointly to construct a viaduct over the defendants' railroad tracks, where the same cross Sixth Street in the city of Atchison, Kansas. An alternative writ of mandamus was issued in the case and served upon each of the defendants, and each filed a separate answer to the alternative writ. The plaintiff then filed a separate motion to each answer, to strike out and quash the same, and also filed a separate demurrer to each answer, setting forth as a ground for such demurrer that the answer did not state facts sufficient to constitute any defence to the plaintiff's alternative writ. The court below overruled all these motions and demurrers, and the plaintiff excepted, and now brings the case to this court for review.

The alternative writ, after alleging in substance that the respective railroad companies are railroad corporations, and that the city of Atchison is a municipal corporation and a city of the first class, and after alleging that the defendant railroad companies had the right of way and privilege to lay down their tracks across said Sixth Street, and to operate their trains over them, and that they did so lay down their tracks and did so operate their trains over them, then alleges, in substance, that the public safety and convenience requires that a viaduct be constructed over said tracks where the same cross Sixth Street, and that proper approaches to said viaduct and sidewalks should also be constructed; and further alleges that the city of Atchison, by an ordinance duly passed on August 20, 1883, ordered that the railroad companies should themselves construct such viaduct, approaches, etc.; and alleges that the railroad companies have utterly failed and refused to do so, or to construct any part thereof. The foregoing ordinance provides among other

things, that the defendant shall construct the viaduct, "with suitable and necessary approaches thereto, at a reasonable and proper grade, and inclined so as to permit the same to be conveniently used as a street, and for public travel by footmen and vehicles, and at such height as to permit engines and trains to pass under the same without unnecessary danger to said structure.

95

The answers of the defendants are separate, and much more voluminous than the alternative writ, and therefore we shall attempt to give, at most, only the substance of them, which is as follows:

Prior to the time when the city of Atchison took any steps to require the defendants to construct said viaduct over their tracks on Sixth Street, the defendants under their charter and by virtue of the city ordinances, had already procured their rights of way across said Sixth Street, and the city had already established the grade of such street, and the tracks of the railroad companies had already been so constructed as to conform to such grade, and such grade has never since been changed or altered, but remains the same as when first established; and it is a physical impossibility for the defendants to construct such viaduct without changing, impairing, and destroying the grade as thus established, not only where the tracks cross the street, but also for a long distance along the street, north and south of such crossing; and this for the rea son that suitable approaches to make such viaduct accessible to teams and persons desiring to use the same, must also be constructed along said Sixth Street for a great distance north and south of such crossing; also on each side of Sixth Street, at and near the place where the viaduct is required to be constructed, individuals have erected lasting and valuable improvements on their lots abutting on the street, with reference to the established grade, and the only means of egress from and ingress to their property is by using Sixth Street opposite their property, and at such grade; and the construction of such viaduct, and the consequent change of the grade of Sixth Street, will render the street opposite their property inaccessible and useless, and will greatly damage their property; and the city has made no provision for compensating them for such damage, or for any damage or loss.

One of the defendants, relying upon the established grade of the street, has laid out and expended a large sum of money towards the erection of a large freight depot, abutting on Sixth Street, and by the erection of the viaduct the depot will, in many respects, be rendered useless, and the large sum of money thus expended will be wholly lost. In addition to the said freight depot, which is now in process of erection, the defendant has already constructed a freight depot abutting on Sixth Street at the east side thereof, near the place where it is now sought to have the

20 A. & E. R. Cas.-4

viaduct constructed, and the construction of the same will cut off all access to both this depot and the other depot from Sixth Street, and such construction will render the use of the two depots impracticable after the entrances thereto from Sixth Street have been obstructed as aforesaid; and the city of Atchison has made no provision for compensating the defendant for such inconvenience, foss, and damage. The erection of the viaduct will also require the construction of approaches extending four or five hundred feet north of the north line of the defendant's tracks, and of their rights of way, as given and granted to them by the terms and conditions of the previous ordinances of the city; and such ap proaches cannot be built or maintained without intersecting and crossing Main Street, and without extending across Main Street many feet north of the north line thereof. The construction of such approaches, as required by the ordinance and the alternative writ, would require and necessitate the destruction and blocking up of Main Street where the same crosses and intersects Sixth Street; and if such viaduct and approaches are constructed of sufficient height to permit teams and vehicles to pass under the north approach to the same at Main Street, such approach will extend a distance of six or eight hundred feet north of and outside of the rights of way of the defendant companies, which would require the construction of a bridge over White Clay Creek, which crosses and intersects Sixth Street some three or four hundred feet north of defendants' tracks and rights of way, and the construction of which bridge would cost many thousands of dollars; and the city of Atchison has made no provision therefor. It is a physical impossibility to construct the viaduct of sufficient height to permit the engines and cars of the defendant companies to pass under the same, and, at the same time, to give the proper inclinations to the approaches thereto within the said lines designated in said ordinance, to wit, between Utah Avenue and Main Street. The several defendants occupy unequal areas in Sixth Street, and own an unequal number of tracks thereon, and after repeated efforts they have been unable to agree upon what proportion of the expense of constructing the viaduct, the approaches, sidewalks, etc., each should bear, or how such expense should be divided or propor tioned between them; and have been unable to agree upon material to be used, or the height of the viaduct, or the lengths and inclinations of the approaches. There is no partnership or joint liability existing between the defendants in relation to the occupancy of the street with their several tracks, but each company acts separately.

the

The defendants also, by their answers and otherwise, raise the following objections to this proceeding:

Mandamus will not lie to enforce an ordinance; nor will it lie against a railroad company, in any case, to compel it to construct a

viaduct over its tracks where its road crosses a public street; for the duty supposed to rest upon the railroad company to construct such viaduct is not a duty" resulting from an office, trust, or station." The State of Kansas, which is plaintiff in this action, is not the real party in interest, nor the proper party to sue; but if any person or corporation is entitled to sue, it is the city of Atchison only. A city has no power, by ordinance or otherwise, to require a railroad company to construct a viaduct, and particularly the city of Atchison has no such power in the present case. But even if it has, still it did not properly exercise such power, and therefore the ordinance by which it attempted to exercise such power is void; and it is void for the reason that it is unconstitutional, in violation of the statutes, vague, obscure, indefinite, and uncertain, and no notice was given to the defendants, with regard to its passage, until some time after it was passed. It is unconstitutional and illegal for the following, among other, reasons: It attempts to require these defendants to construct said viaduct at their own expense, which is virtually to levy a special tax upon them, in addition to the ordinary taxes levied upon all the taxpayers of the city of Atchison, and virtually to levy a tax upon them which is not levied upon any of the other taxpayers of such city. The defendants have, by their charters, and by prior ordinances and contracts, and by constructing their roads with reference to the established grade of the streets, obtained vested rights to have the streets over which their tracks are constructed remain as they now are, and at the present established grades; and these rights cannot legally be disturbed by any ordinance of the city, or even by a statute of the State. This ordinance, if enforced, will indirectly work a change in the grade of the streets of the city of Atchison, which is in violation of law, and cannot legally be done; but the grade of the streets can only be changed by direct and express action on the part of the mayor and council of the city, and by express ordinance duly passed for such purpose. The ordinance does not designate or provide for determining what shall be the height or dimensions of the viaduct, or whether it shall be of wood, iron, or stone, or of some other material, or what shall be the height or inclination. of either of the approaches, or how much, or what part or proporportion, of the work shall be done by any one of the several defendants, or how the expenses of the work shall be divided or proportioned between them, but it simply requires that the defendants shall jointly construct a viaduct, as heretofore stated.

The facts as set forth and alleged in the defendants' answers must be taken as true, for the answers have been attacked only by motions to quash and demurrers; and, taking these facts as true, we think the decision of the court below is correct.

With respect to the law of the case, we agree in part with the plaintiff and in part with the defendants. The defendants claim