SB 313--
Session of 1997
By Senators Feleciano, Corbin, Downey, Gooch, Goodwin,
Harrington, Harris, Lawrence and Ranson

9 AN ACT relating to cities; concerning railroads; requiring construction of 10 viaducts or tunnels; amending K.S.A. 12-1633 and repealing the exist- 11 ing section. 12 13 Be it enacted by the Legislature of the State of Kansas: 14 Section 1. K.S.A. 12-1633 is hereby amended to read as follows: 12- 15 1633. The governing body of cities of the first and second class shall have 16 the power to regulate the crossings of railway and street-railway tracks 17 and provide precautions and adopt ordinances regulating the same; to 18 regulate the running of street railways or cars and to adopt ordinances 19 relating thereto and to govern the speed thereof; to regulate the running 20 of railway engines and cars, except speed, and to adopt ordinances relating 21 thereto; and to make other and further provisions, rules and regulations 22 to prevent accidents at crossings and on tracks of railways, and to prevent 23 fires from engines, and to require all railway railroad companies to erect 24 construct viaducts over or tunnels under their tracks at the crossings of 25 streets when such construction is reasonable and necessary to the end, 26 intent and purpose that accidents may be prevented and the general 27 health, safety and welfare of the public be promoted. The governing body 28 shall declare, by ordinance, its finding that the construction of viaducts 29 or tunnels, or both, over its streets are reasonable and necessary as stated 30 above. 31 From and after the effective date of this act, that part or parts of any 32 rule, regulation or ordinance adopted pursuant to this section regulating 33 the speed of railway engines and cars shall not be of any force or effect, 34 and that part or parts shall be and are hereby declared null and void. 35 The governing body of any city of the first class or second class, pur- 36 suant to K.S.A. 66-165, and amendments thereto, may initiate a complaint 37 to the state corporation commission and seek an order regulating the 38 speed of railway engines and cars. In accordance with the provisions of 39 K.S.A. 66-165, and amendments thereto, its rules of procedure and other 40 applicable law, the state corporation commission shall investigate the 41 complaint, may conduct a hearing and, consistent with applicable law and 42 rules and regulations of the federal railroad administration, issue its order. SB 313

 1    The governing body shall have power to require any railroad company
 2  or companies owning or operating any railroad or street-railway track or
 3  tracks upon or across any public street or streets of the city to erect,
 4  construct, reconstruct, complete and keep in repair any viaduct or via-
 5  ducts upon or over or tunnels under such street or streets and over or
 6  under any such track or tracks, including the approaches of such viaduct,
 7  viaducts or tunnels as may be deemed and declared by the governing
 8  body to be necessary for the convenience, safety or protection of the
 9  public. Whenever any such viaduct shall be deemed and declared by
10  ordinance to be necessary for the convenience, safety or protection of the
11  public, the governing body shall provide for appraising, assessing and
12  determining the damage, if any, which may be caused to any property by
13  reason of the construction of such viaduct and its approaches. The pro-
14  ceedings for such purpose shall be the same as provided by law for the
15  purpose of ascertaining and determining damages to property owners by
16  reason of the change in grade of any street, except that such damage shall
17  be paid by such railway company or companies. The amount of damage
18  thus ascertained and awarded shall, upon notice by the city, be promptly
19  paid by the railway company or companies interested and if any such
20  company shall fail to pay the same within 10 days from receipt of notice
21  of the amount thereof, then the amount so awarded shall become a lien
22  in the proportion to the amount each railway company shall pay--, if
23  more than one company is concerned--, upon the right-of-way and all
24  property of such railway company and the collection may be enforced by
25  the city in an action against such railway company or companies failing
26  to pay The governing body shall notify such company or companies of its
27  finding of necessity for the construction of such viaduct or tunnel and
28  shall provide such company or companies a period of time within which
29  such required improvements shall be completed. The width, height and
30  strength of any such viaduct or tunnel and the approaches thereto, the
31  material to be used, and the manner of construction, shall be as required
32  by the governing body.
33    When two or more railroad companies own or operate separate lines
34  of track to be crossed by any such viaduct, either upon, above or below
35  the grade, or where any street-railway company intersects and crosses the
36  track or tracks of any railroad company, the proportion thereof of such
37  viaduct and of the approaches thereto to be constructed by each, and the
38  proportion of cost to be borne by each, shall be determined by the gov-
39  erning body. It shall be the duty of any railroad company or companies
40  or street-railway company, upon being required, as herein provided, to
41  erect, construct, reconstruct or repair any viaduct or tunnel, to proceed,
42  within the time and in the manner required by the governing body, to
43  erect, construct, reconstruct or repair the same, and it shall be a misde-
SB 313

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