dissenting. — By contract stipulations the railroad company “dedicated” to the city for street *295purposes a right of way “over and across the right of way and property” of the railroad company, for the extension of a street of the city, one of the provisions being that “such crossing to be put in, operated and maintained without expense to the railway company, and subject to the unrestricted use thereof by the railway company, for its tracks and railroad purposes.” Subsequently the city adopted an ordinance which requires the railroad company to “maintain and properly operate safety gates of a design mechanism suitable for the protection of persons riding, driving or on foot, from the trains and locomotives approaching said crossing.”
A bill brought to enjoin the city from enforcing the latter ordinance Vas dismissed and the railroad company appealed.
The question presented is whether the “dedication” provisions unlawfully abrogate the police power of the city.
Municipalities cannot in general barter away their police powers involving the public safety and welfare; and contracts made by municipalities should not be construed to abrogate the right of a city to exercise its police powers unless they were clearly so intended. The subject-matter of the contract provisions was the “dedication” for street purposes of a right of way across the right of way and tracks of the railroad company, and not police protection of the public at the crossing; and the provision that “such crossing to be put in, operated and maintained without expense to the railway company” was apparently not intended to enlarge the subject-matter of the stipulations. As used the word “operated” does not preclude the city in the exercise of its police power and duty to protect the public from risks of injury at a crossing of a railroad track by a city street, from *296requiring the railroad company to “maintain and properly operate safety gates * * * suitable for the protection of persons * * * approaching said crossing.” Gates are required to protect those using the street from injury by trains, the use of the streets, not the moving of trains being impeded by using the gates. The operation of the railroad is subject to reasonable municipal regulations required by the growth of the city; and the police power and duty of the city to make and enforce lawful regulations cannot be abrogated by contract.