HB 2442--
Session of 1997
By Representatives Johnston and Sawyer, Dean, Donovan, Flaharty, Gil- bert, Klein, Mayans, Pottorff, Powers, Shultz, Storm, Swenson, Thi- mesch, Wells and Welshimer

AN ACT relating to cities; concerning the regulation of railroad crossings; amending K.S.A. 12-1633 and repealing the existing section. Be it enacted by the Legislature of the State of Kansas: Section 1. K.S.A. 12-1633 is hereby amended to read as follows: 12- 1633. The governing body of cities of the first and second class shall have the power to regulate the crossings of railway and street-railway tracks and provide precautions and adopt ordinances regulating the same; to regulate the running of street railways or cars and to adopt ordinances relating thereto and to govern the speed thereof; to regulate the running of railway engines and cars, except speed, and to adopt ordinances relating thereto; and to make other and further provisions, rules and regulations to prevent accidents at crossings and on tracks of railways, and to prevent fires from engines,; and to require all railway railroad companies to erect construct viaducts over or tunnels under their tracks at the crossings of streets when such construction is reasonable and necessary to the end, intent and purpose that accidents may be prevented and the general health, safety and welfare of the public be promoted. The governing body shall declare, by ordinance, its finding that the construction of viaducts or tunnels, or both, over its streets is reasonable and necessary. From and after the effective date of this act, that part or parts of any rule, regulation or ordinance adopted pursuant to this section regulating the speed of railway engines and cars shall not be of any force or effect, and that part or parts shall be and are hereby declared null and void. The governing body of any city of the first class or second class, pur- suant to K.S.A. 66-165, and amendments thereto, may initiate a complaint to the state corporation commission and seek an order regulating the speed of railway engines and cars. In accordance with the provisions of K.S.A. 66-165, and amendments thereto, its rules of procedure and other applicable law, the state corporation commission shall investigate the complaint, may conduct a hearing and, consistent with applicable law and rules and regulations of the federal railroad administration, issue its order. The governing body shall have power to require any railroad company HB 2442

 1  or companies owning or operating any railroad or street-railway track or
 2  tracks upon or across any public street or streets of the city to erect,
 3  construct, reconstruct, complete and keep in repair any viaduct or via-
 4  ducts upon or over or tunnels under such street or streets and over or
 5  under any such track or tracks, including the approaches of such viaduct,
 6  viaducts or tunnels as may be deemed and declared by the governing
 7  body to be necessary for the convenience, safety or protection of the
 8  public. Whenever any such viaduct shall be deemed and declared by
 9  ordinance to be necessary for the convenience, safety or protection of the
10  public, the governing body shall provide for appraising, assessing and
11  determining the damage, if any, which may be caused to any property by
12  reason of the construction of such viaduct and its approaches. The pro-
13  ceedings for such purpose shall be the same as provided by law for the
14  purpose of ascertaining and determining damages to property owners by
15  reason of the change in grade of any street, except that such damage shall
16  be paid by such railway company or companies. The amount of damage
17  thus ascertained and awarded shall, upon notice by the city, be promptly
18  paid by the railway company or companies interested and if any such
19  company shall fail to pay the same within 10 days from receipt of notice
20  of the amount thereof, then the amount so awarded shall become a lien
21  in the proportion to the amount each railway company shall pay--, if
22  more than one company is concerned--, upon the right-of-way and all
23  property of such railway company and the collection may be enforced by
24  the city in an action against such railway company or companies failing
25  to pay. The governing body shall notify such company or companies of
26  its finding of necessity for the construction of such viaduct and shall pro-
27  vide such company or companies a period of time within which such
28  required improvements shall be completed. The width, height and
29  strength of any such viaduct or tunnel and the approaches thereto, the
30  material to be used, and the manner of construction, shall be as required
31  by the governing body.
32    When two or more railroad companies own or operate separate lines
33  of track to be crossed by any such viaduct, either upon, above or below
34  the grade, or where any street-railway company intersects and crosses the
35  track or tracks of any railroad company, the proportion thereof and of the
36  approaches thereto to be constructed by each, and the proportion of cost
37  to be borne by each, shall be determined by the governing body. It shall
38  be the duty of any railroad company or companies or street-railway com-
39  pany, upon being required, as herein provided, to erect, construct, re-
40  construct or repair any viaduct or tunnel, to proceed, within the time and
41  in the manner required by the governing body, to erect, construct, re-
42  construct or repair the same, and it shall be a misdemeanor for any rail-
43  road company or companies or street-railway company to fail, neglect or
HB 2442

 1  refuse to perform such duty, and upon conviction, any such company or
 2  companies or the superintendent or other officer having charge of such
 3  railway company or street railway in the district or division where such
 4  viaduct or tunnel is to be erected or repaired, shall be fined $100, or
 5  imprisoned in the county jail not less than 30 days, and each day such
 6  companies or officers shall fail, neglect or refuse to perform such duty
 7  shall be deemed and held a separate offense; and in addition to the pen-
 8  alty herein provided any such company or companies shall be compelled
 9  by mandamus or other appropriate proceedings to erect, construct, re-
10  construct, or repair any viaduct or tunnel as may be required by ordinance
11  as herein provided.
12    The governing body shall also have power, whenever any railroad com-
13  pany or companies or street-railway companies shall fail, neglect or refuse
14  to erect, construct or reconstruct or repair any viaduct, viaducts or tunnel,
15  after having been required so to do as herein provided, to proceed with
16  the erection, construction, reconstruction or repair of the same by con-
17  tract or in such other manner as may be provided by ordinance and assess
18  the cost thereof against the property of such railroad company or com-
19  panies or street-railway company, and such cost shall be a valid and sub-
20  sisting lien against such property, and also shall be a legal indebtedness
21  of such company or companies in favor of such city, and may be enforced
22  and collected by suit in any court having jurisdiction. In addition to the
23  provisions of this section, the governing body may utilize the provisions
24  of K.S.A. 12-6a01, et seq., and amendments thereto as the procedure for
25  initiating the construction of such viaduct, viaducts or tunnel and assess-
26  ing all or a portion of the costs thereof against property which is specially
27  benefited by such construction.
28    Sec. 2.  K.S.A. 12-1633 is hereby repealed.
29    Sec. 3.  This act shall take effect and be in force from and after its
30  publication in the statute book.