12-1634.   Same; cities in counties over 90,000; regulation of speed; bond issue.The governing body of all cities of the first and second class in acounty having a population of over 90,000 shall have the power to regulatethe crossings of railway and street-railway tracks and provide precautionsand adopt ordinances regulating the same; to regulate the running ofstreet railways or cars and to adopt ordinances relating thereto and togovern the speed thereof;to regulate the running of railway engines and cars, except speed, and toadopt ordinances relating thereto;and tomake other and further provisions, rules and regulations to prevent firesfrom engines, and to require all railway companies to erect viaducts overor tunnels under their tracks at the crossings of streets.

      From and after the effective date of this act,that part or parts ofany rule, regulation or ordinance adopted pursuant to this sectionregulating the speed of railway engines and cars shall not be of any forceor effect, and that part or parts shall be and are hereby declared null andvoid.

      The governingbody shall have power to require any railroad company or companies owningor operating any railroad or street-railway track or tracks upon or acrossany public street or streets of the city to erect, construct, reconstruct,complete and keep in repair any viaduct or viaducts upon or over or tunnelsunder such street or streets and over or under such tracks, including theapproaches of such viaduct, viaducts or tunnels as may be deemed anddeclared by ordinance to be necessary for the convenience, safety orprotection of the public.

      Whenever any such viaduct shall be deemed and declared by ordinance tobe necessary for the convenience, safety or protection of the public, thegoverning body shall provide for appraising, assessing and determining thedamage, if any, which may be caused to any property by reason of theconstruction of such viaduct and its approaches. The proceedings for suchpurpose shall be the same as provided by law for the purpose ofascertaining and determining damages to property owners by reason of thechange in grade of any street, except that such damage shall be paid bysuch railway company or companies. The amount of damage thus ascertainedand awarded shall, upon notice by the city, be promptly paid by the railwaycompany or companies interested, and if any such company shall fail to paythe same within 10 days from receipt of notice of the amount thereof, thenthe amount so awarded shall become a lien in the proportion to the amounteach railway company shall pay, if more than one company is concerned, uponthe right-of-way and all property of such railway company, and thecollection thereof may be enforced by the city in an action against suchrailway company or companies so failing to pay. The width, height andstrength of any such viaduct or tunnel and the approaches thereto, thematerial to be used, shall be as required by the governing body.

      When two or more railroad companies own or operate separate lines oftrack to be crossed by any such viaduct, either upon, above or below thegrade, or where any street-railway company intersects and crosses the trackor tracks of any railroad company, the proportion thereof and of theapproaches thereto to be constructed by each, and the proportion of cost tobe borne by each, shall be determined by the governing body. It shall bethe duty of any railroad company or companies or street-railway company,upon being required, as herein provided, to erect, construct, reconstructor repair any viaduct or tunnel, to proceed, within the time and in themanner required by the governing body to erect, construct or reconstruct orrepair the same, and it shall be a misdemeanor for any railroad company orcompanies or street-railway company to fail, neglect or refuse to performsuch duty, and upon conviction, any such company or companies or thesuperintendent or other officer having charge of such railway company orstreet railway in the district or division where such viaduct or tunnel isto be erected or repaired shall be fined one hundred dollars, and each daysuch companies or officers shall fail, neglect or refuse to perform suchduty shall be deemed and held a separate offense; and in addition to thepenalty herein provided, any such company or companies shall be compelledby mandamus or other appropriate proceedings to erect, construct,reconstruct or repair any viaduct or tunnel as may be required by ordinanceas herein provided.

      The governing body shall also have power, whenever any railroad companyor companies or street-railway companies shall fail, neglect or refuse toerect, construct or reconstruct or repair any viaduct, viaducts or tunnel,after having been required so to do as herein provided, to proceed with theerection, construction, reconstruction or repair of the same by contract,or in such other manner as may be provided by ordinance, and assess thecost thereof against the property of such railway company or companies orstreet-railway company, and such cost shall be a valid and subsisting lienagainst such property, and also shall be a legal indebtedness of suchcompany or companies in favor of such city, and may be enforced andcollected by suit in any court having jurisdiction. Or in lieu of enforcingthe collection of the costs of such improvement by a suit at law, the citymay issue internal improvement bonds of the city as provided by law to payfor such work, and special assessments shall be levied against the propertyof such railroad company or companies or street railway as above providedto pay such bonds and interest.

      History:   R.S. 1923, § 12-1634;L. 1988, ch. 76, § 2;L. 1998, ch. 164, § 3; July 1.