208 U. S.

Argument for Defendant in Error.

court would have held the contract good, for it does not differ in principle from the contract held good in the last case cited. See 85 Minnesota, 418.

As to the validity of an alleged contract, however, this court follows the law of the State as it existed when the contract was consummated and will disregard later decisions to the contrary. Ohio Life Insurance & Trust Company v. Debolt, 16 How. 416. See, also, Taylor v. Ypsilanti, 105 U. S. 60, 71; Los Angeles v. Los Angeles City Water Co., 177 U. S. 558, 575; Loeb v. Columbia Township Trustees, 179 U. S. 472, 492; Deposit Bank v. Frankfort, 191 U. S. 499, 517, 518.

Considering the then rights of the parties as between each other, which were in so many respects doubtful, they were certainly fair matters of compromise; and to say that a compromise honestly entered into and fully carried out is without consideration because, some fifteen years after, the Supreme Court of the State for the first time holds that the whole obligation could have been thrown upon the railway, is to violate the fundamental principle upon which compromise agreements are founded. See Stapleton v. Stapleton, 1 Atkyns, 12; 1 Chitty on Contracts (11th ed.), 47, note; Hager v. Thompson, 1 Black, 80, 93; United States v. Child, 12 Wall. 232; Demars v. MusserSauntry Land Co., 37 Minnesota, 418.

Mr. Bert Fesler for defendant in error:

As to the jurisdiction: "This court does not obtain jurisdiction to review a judgment of a state court because that judgment impairs or fails to give effect to a contract. The state court must give effect to some subsequent statute or state constitution which impairs the obligation of the contract, and the judgment of that court must rest on the statute either expressly or by necessary implication." New Orleans Waterworks Co. v. Louisiana, 185 U. S. 336, 350, 351. See also Dawson v. Columbia Trust Co., 197 U. S. 178; St. Paul Gas Light Co. v. St. Paul, 181 U. S. 142.

The inhibitions of the Constitution upon the impairment

Argument for Defendant in Error.

208 U.S.

of the obligation of contracts, etc., by the States, are not violated by the legitimate exercise of legislative power in securing the public safety, health and morals. New York & New England R. R. Co. v. Bristol, 151 U. S. 556, 567, Nor do those constitutional provisions apply to contracts made by parties dealing with a department of government concerning the future exercise of governmental power conferred by legislative acts, where the subject matter of the contract is one which affects the safety and welfare of the public. Board of Education v. Phillips, 67 Kansas, 549.

As to the merits: The rule stated by counsel for plaintiff in error, that upon the validity of an alleged contract this court follows the law of the State as it existed when the contract was made and will disregard later decisions to the contrary, is limited to decisions of the state court as to the interpretation or validity of its own constitution and statute laws. It does not apply to the general law not found in written constitutions or statutes. Ohio Life Insurance and Trust Company v. Debolt, 16 How. 416, distinguished.

The decisions of the state court, at the time the contract of 1891 was made, were not contrary to the decision in this case.

The Minnesota court held, on the facts in the case at bar, that the viaduct is a safety device. It is not claimed that that portion of the decision is contrary to any prior decision of this court. State ex rel. City of Minneapolis v. St. Paul, Minneapolis & Manitoba Railway Company, 35 Minnesota, 131, and State ex rel. St. Paul, Minneapolis & Manitoba Railway Company v. District Court, 42 Minnesota, 247, discussed and distinguished.

Even if the contract of 1891 related to matters which were fair subjects of compromise, the law with respect to the au!thority or power of the city to make it is not affected by that consideration. It was an attempt on the part of the city to bind itself to keep the viaduct in repair forever. But under the decisions that duty devolved upon the railway company, and this being so, the contract of 1891 was not a valid one, be

cause where the duty rests upon a railway corporation to restore a public way to its former condition of usefulness, a municipality cannot enter into a valid contract with such corporation whereby it surrenders its power to compel the performance of such duty. State ex rel. St. Paul v. Minnesota Transfer Ry. Co., 80 Minnesota, 108. See also New York & New England R. R. Co. v. Bristol, 151 U. S. 556.

A municipality contracts away its police power when it contracts away the right to say who shall pay for compliance with an exercise of the police power. It is uncompensated compliance with the requirements of governmental authority to preserve the safety of crossings that the law requires. State ex rel. Minneapolis v. St. Paul, M. & M. Ry. Co., 35 Minnesota, 131; New York & N. E. R. Co. v. Bristol, 151 U. S. 556, 571; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 254; New Orleans Gaslight Co. v. Drainage Commission, 197 U. S. 453.

MR. JUSTICE DAY delivered the opinion of the court.

This case comes here from the Supreme Court of Minnesota, to review a judgment of that court affirming a judgment in mandamus of the St. Louis County Court in that State, which required the Northern Pacific Railway Company, plaintiff in error, to repair a certain viaduct in the city of Duluth, carrying the railway company's tracks over Lake avenue. 98 Minnesota, 429. The Northern Pacific Railway Company is the successor in title of the St. Paul and Duluth Railroad Company, which derived its title from the Lake Superior and Mississippi Railroad Company. The Lake Superior and Mississippi Railroad Company, whose rights and obligations have devolved upon the Northern Pacific Railway Company, had the following provisions in its charter:

"SEC. 6. The said company may construct the said railroad across any public or private road, highway, stream of water or watercourse if the same be necessary: Provided, That the same shall not interfere with navigation; but said company

shall return the same to their present state, or in a sufficient manner so as not to impair the usefulness of such road, highway, stream of water, or watercourse, to the owner or to the public."

"SEC. 17. This act is hereby declared to be a public act, and may be amended by any subsequent legislative assembly in any manner not destroying or impairing the vested rights of said corporation.'

The Lake Superior and Mississippi Railroad laid its first track across what is now Lake avenue in 1869. Lake avenue was graded and improved for public traffic in the winter and spring of 1871, and since that time it has been in continuous use as a public street. In the year 1891 the amount of business on Lake avenue and the number of tracks therein had become so great that the constant passage of cars and engines endangered the safety of the public. The city of Duluth thereupon prepared plans and specifications for the construction of the viaduct over Lake avenue, and made a demand upon the railroad company to construct the same. The railroad company, after considerable negotiation, in which it denied its obligation to build the viaduct, entered into a contract with the city of Duluth, which is set up in its answer in this case as a full defense to the right of the city of Duluth to require the repair of the viaduct at the railroad company's expense. This contract was dated September 2, 1891, and provided that the city -should build the bridge or viaduct upon Lake avenue to carry that street over the railroad tracks which had theretofore crossed said avenue at grade. The railroad was to contribute to the expense of the construction in the amount of $50,000, and the city undertook, for the period of fifteen years, to maintain the part of the bridge over the railroad's right of way, and to perpetually maintain the approaches. The city built the bridge at an expense of $23,000, in addition to the $50,000 which was paid by the railroad company.

In 1903, the viaduct and its appoaches having become dangerous for public use, the city of Duluth acted within the

power conferred on it by law to require railroad companies to construct bridges and viaducts at their own expense at public railroad crossings, and having investigated the subject, approved the plans prepared by the city engineer, and on the thirteenth of July, 1903, passed the following resolution:

"Resolved, That the repairs set forth in said specifications are necessary and proper, and are demanded by the public safety and convenience.

"Resolved, further, That said repairs are reasonable and practicable for the repairs of said viaduct and its approaches; and that said repairs as set forth in said specifications are hereby adopted and approved.

"Resolved, further, That this council does hereby demand that the Northern Pacific Railway Company immediately proceed to repair said viaduct and approaches in accordance with said specifications.

"Resolved, further, That a copy of this resolution be forthwith served upon the Northern Pacific Railway Company in the same manner as service may be made of summons in a civil action by the city clerk.

"Resolved, further, That in the event of the failure or refusal of said company to comply with such demand that the city attorney be and he is hereby instructed to institute such action or actions as to him may seein proper to compel the said railway company to make such repairs, or such portion thereof as the court may determine it is legally liable to make."

It was in pursuance of this resolution that this action in mandamus was begun and the writ issued, requiring the railroad company to make the repairs in accordance with the plans adopted and approved by the city council.

We are met at the threshold with the question of the jurisdiction of this court. It is the contention of the plaintiff in error that in requiring the railroad company to repair the viaduct at its own expense the obligation of the contract of September 2, 1891, has been impaired by legislation of the municipal corporation, in violation of the contract clause of the