Opinion No. 75-260 (1975) Ag ( 1975 )

HIGHWAY DEPARTMENT — EXPENDITURES Under 17 O.S. 82 [17-82] (1971) and 66 O.S. 128 [66-128] (1971) the primary responsibility of constructing and maintaining the railroad crossings is upon the railroad company or corporation; however, upon the railroad's failure or refusal to do so, pursuant to 69 O.S. 1502 [69-1502] (1971), the Highway Department may maintain the railroad crossings and may take appropriate action against the railroad company or corporation for reimbursement. The Attorney General has considered your opinion request wherein you, in effect, ask the following question: May the Department of Highways expend its appropriated funds for maintenance, repair or rehabilitation of public highway-railroad grade crossings. Title 17 O.S. 82 [17-82] (1971) reads: "The expense of construction and the maintenance of public highway grade crossings shall be borne by the railroad or railway company involved. For overgrade or undergrade public highway crossings over or under steam or electric railroad or railway, the assignment of cost and maintenance shall be left to the discretion of the Corporation Commission; but in no event shall the city, town or municipality be assessed with more than fifty percent (50%) of the actual costs of such overgrade or undergrade crossings." (Emphasis added) Title 66 O.S. 128 [66-128] (1971) reads: "It shall be the duty of every railroad company or corporation doing business, or operating a line of railroad, within this State, to construct a crossing across that portion of its track, roadbed or right of way over which any public highway may run and maintain the same unobstructed, in a good condition for the use of the public, and to build and maintain in good condition all bridges and culverts that may be necessary on its right of way and such crossing and in case any railroad company or corporation fails so to construct and maintain said crossing for thirty days after written notice by the road overseer of any road district or the council or board of trustees of any city or town in this State, or fifty petitioners of any city or town who are interested (where such work or repairs are needed), to be given to the section boss, or any station agent of any railroad company or corporation in the county (where such work or repairs are needed) it shall forfeit and pay to said county, road district, city or town complaining, the sum of twenty-five dollars per day for every day said company or corporation may neglect to comply with the requirements of this section." (Emphasis added) It is apparent from the wording of the statutes that the railroad company involved is primarily charged with the duty of construction and further maintenance of public highway grade crossings. This principle was upheld by the Oklahoma Supreme Court in Chicago, R.I. P. Ry. Company v. Taylor, 79 Okl. 142,192 P. 349 (1920), where the Court in its ninth syllabi stated: "A railroad crossing is within itself a continuing source and warning of danger, and laws requiring the railroad to construct and maintain the crossings, laws providing the method of constructing crossings, and laws designating the extent of the duties imposed upon the railroad company, fall peculiarly within the police powers of the state, because their purpose is not only to guard the public traveling on the highways from harm and injury, but to protect the railroad company, its employees, passengers, and property, from injury." The Court further stated at page 352: "Thus it will be seen that the State Legislature one rated railroads with the duty of not only constructing crossings over the highways across that portion of its tracks and roadbed or right of way over which the public highway passed, but to 'maintain the same unobstructed, in a good condition for the use of the public and to build and maintain in good condition all bridges and culverts that may be necessary on its right of way at such crossing.' " Title 69 O.S. 101 [69-101] (1971) in effect declares the intent of the Legislature in bestowing broad authority and discretion upon the State Highway Commission and Director to provide a safe and efficient highway system. Title 69 O.S. 1502 [69-1502] (1971) authorizes the expenditure of funds and money and states: "All funds collected and placed in the State Treasury and credited to the State Highway Construction and Maintenance Fund and all funds received from the United States Government under contracts with the Bureau of Public Roads are to be used and expended by the Department to pay: Legal obligations in the operation of the Department and the Commission, and in the construction and maintenance of roads and highways; the expenses of operating and maintaining the State Highway System; expenses incurred in constructing, repairing, and maintaining State highways, farm to market roads and county highways as authorized by law; necessary and convenient items not specifically mentioned herein; salaries, wages, and lawful expenses of the members of the Commission, the Director, the Departmental employees, the attorneys and other professional help of the Department; for the purchase of office supplies, furniture, fixtures and equipment; for the construction, maintenance, and repair of needed warehouses, garages, division headquarters, and other needed buildings; for premiums on bonds, workmen's compensation insurance, public liability and property damage insurance; for the purchase of materials, tools, machinery, motor vehicles, and equipment necessary or convenient in the operation of the Department and construction and maintenance of roads and highways; for witnesses' fees, sheriffs' mileage, and publication cost in actions to appropriate right-of-way, land or materials needed in the construction or maintenance of roads and highways; any expenses which may be necessary or convenient in constructing and maintaining roads and highways and in accomplishing the purposes for which the Commission and the Department were created; . . ." (Emphasis added) It is apparent that the railroad company or corporation is one rated with the primary responsibility of constructing and maintaining the railroad crossings; however, upon the railroad's failure or refusal to do so, the Highway Department has the general obligation of maintaining a safe and efficient highway system. It is, therefore, the opinion of the Attorney General that under 17 O.S. 82 [17-82] (1971) and 66 O.S. 128 [66-128] (1971) the primary responsibility of constructing and maintaining the railroad crossings is upon the railroad company or corporation; however, upon the railroad's failure or refusal to do so, pursuant to 69 O.S. 1502 [69-1502] (1971), the Highway Department may maintain the railroad crossings and may take appropriate action against the railroad company or corporation for reimbursement. (David K. McCurdy)