dissenting. — If the ordinance by which the city of Miami undertook to put in, operate and waintain a crossing over the right of way and tracks of the appellant railway company was intended to perpetually bind the city to put in and maintain safety gates or such appliances as are necessary to protect the public from the dangers incident to the use of such crossing, without expense of such railway company, it was in my opinion beyond the power of the city to adopt, and is therefore not binding upon it.
The opinion holds that: “In the contract between the city of Miami and the Florida East Coast Railway, the word ‘operate’ had a distinct meaning and was used for a definite purpose, and imposed upon the city an obligation to do everything with regard to the crossing, necessary for the public safety, without expense of the railway company. The use of gates or the employment of watchmen are essential to the safety of the public at a railway crossing on a much traveled street, and their use constitutes the operation of the crossing.”
If this duty was legally “imposed upon the city,” then necessarily the city was perpetually bound to withhold the exercise of the power, commonly called the police *297power, which it clearly possesses,- to require the. railway company at its own expense and without, expense to the city to put in, operate and maintain suclr safety appliances.
It is well settled that under its police power the State may establish all regulations that are reasonably necessary to secure the health, safety, good order or general welfare of the community; that this power cannot be- abdicated nor bargained, away and that all contracts and property rights are held subject to its proper ..exercise. Atlantic Coast Line R. Co. v. City of Goldsboro, North Carolina, 232 U. S. 548, 34 Sup. Ct. Rep. 364; Chicago, B. & Q. R. Co. v. People of State of Illinois ex rel. Drainage Com’rs, 200 U. S. 561, 26 Sup. Ct. Rep. 341; New Orleans Gas Light Co. v. Drainage Commission of New Orleans, 197 U. S. 453, 25 Sup. Ct. Rep. 471; Chicago, B. & Q. R. Co. v. City of Chicago, 166 U. S. 226, 17 Sup. Ct. Rep. 581.
Now the maintenance of proper safety appliances at the crossing are duties which the city may in the exercise of its police power, in the interest of the public safety, require the railway company to perform without compensation (State ex rel. Village of Clara City v. Great Northern Railway Company, 130 Minn. 480, 153 N. W. Rep. 879; Cincinnati, I. & W. R. Co. v. City of Connersville, 218 U. S. 336, 31 Sup. Ct. Rep. 93), and when the city obligates itself to withhold the exercise of this power, with respect to such duties, and itself assumes the obligations and burdens of “operating” the crossing it has to that extent abdicated the power possessed by it to require such railway company, without compensation, to put in and maintain such “safety gates” as public necessity and convenience may require.
*298In case of Great Northern Railway Company and Willmar & Sioux Falls Railway Co. v. State ex rel. Village of Clara City, U. S. , Sup. Ct. Rep. , April 15, 1918, the court said: “It is too well settled by former decisions of this court to require extended discussion here, that railroad companies may be required by the States, in the exercise of the police power, to make streets and highways crossed by the tracks of such companies reasonably safe and convenient for public use, and this at their own expense. Such companies accept their franchises from the State subject to their duties to conform to regulations, not of an arbitrary nature, as to the opening and use of the public streets for the purpose of promoting the public safety and convenience.”
The case under consideration is squarely within the rule announced by the Supreme Court of the United States in the case of Northern P. R. Co. v. State of Minnesota ex rel. City of Duluth, 208 U. S. 583, 28 Sup. Ct. Rep. 341.
That was a case in which the railway company was required by mandamus pursuant to the provisions of a resolution of the governing body of the city of Duluth, in which the avenue was located, to repair a certain viaduct carrying the railway company’s tracks over a certain avenue. The city and the predecessor of the railway company had entered into an agreement by which the railroad was to contribute to the expense of the construction of the viaduct the sum of $50,000.00, and the city agreed to maintain for fifteen years the part of the viaduct over the railroad’s right of way and to perpetually maintain the approaches. The city constructed the viaduct and in addition to the $50,000.00 contributed by the railroad the city expend $23,000.00 in its construction.
*299Before the expiration of the fifteen-year period the city, upon the theory that the railroad should maintain the viaduct at its own expense, repudiated the agreement and brought mandamus proceedings to require the railroad to repair it. In an elaborate opinion in which many authorities are referred to. the Supreme Court of Minnesota (State ex rel. City of Minneapolis v. St. Paul, M. & M. R. Co., 98 Minn. 380, 108 N. W. Rep. 261) upheld the contentions of the city. This judgment was affirmed by the Supreme Court of the United States in an opinion prepared by Mr. Justice Day, and because of the peculiar aptness of the language employed and the striking similarity of the questions considered to the questions involved here, I quote at length from that opinion:
“As the Supreme Court of Minnesota points out in the opinion in 98 Minnesota, 380, above referred to, the State courts are not altogether agreed as to the right to compel railroads, without compensation, to construct- and maintain suitable crossings at streets extended over its right of way, after the construction of the railroad The great weight of State authority is in favor of such right. (See cases cited in 98 Minnesota, 380).
“There can be no question as to the attitude of this court upon this question, as it has been uniformly held that the right to exercise the police power is a continuing one; that it cannot be contracted away, and that a requirement that a company or individual comply with reasonable police regulations without compensation is the legitimate exercise of the power and not in violation of the constitutional inhibition against the impairment of the obligation of contracts. In New York and New England Railway Company v. Bristol, 151 U. S. 556, 576, the doctrine was thus laid down by Chief Justice Fuller, speaking for the court:
*300“'It is likewise thoroughly established in this court that the inhibitions of the Constitution of the United States upon the impairment of the obligation of contracts, or the deprivation of property without due process, or of the equal protection of the laws, by the States, are not violated by the legitimate exercise of legislative power in securing the public safety, health and morals. The governmental power of self-protection cannot be contracted away, nor can the exercise of rights granted, nor the use of property, be withdrawn from the implied liability to governmental regulations in particulars essential to, the preservation of the community from injury. Beer Co. v. Massachusetts, 97 U. S. 25; Fertilizing Co. v. Hyde Park, 97 U. S. 659; Barrier v. Connolly, 113 U. S. 27; New Orleans Gas Company v. Louisiana Light Company, 115 U. S. 650; Mugler v. Kansas, 123 U. S. 623; Rudd v. New York, 143 U. S. 517.
“The principle was recognized and enforced in Chicago, Burlington & Quincy R. R. Co. v. Chicago, 166 U. S. 226, where it was held that the expenses incurred by the railroad company in erecting gates; planking at crossings, etc., and the maintenance thereof, in order that the road might be safely operated, must be deemed to have been taken into account when the company accepted its franchise from the State, and the expenses incurred by the railroad company, though upon new streets, might be required as essential to the public safety. In Detroit Railroad Co. v. Osborne, 189 U. S. 383, it was held that the State of Michigan might compel a street railroad to install safety appliances at an expense to be divided with a steam railroad company occupying the same street, notwithstanding the steam railroad was the junior occupier of the street. The subject was further under consideration in New Orleans Gas Light Co. v. Drainage *301Commission of New Orleans, 197 U. S. 453, where it was held that although the gas company had permission from the city to lay its pipes under the streets, it might be required to remove the same at its own expense, in the exercise of the police power in the interest of the public, in order to make way for a system of drainage which was required, in the interest of the public health, without compensation to the gas company; and that uncompensated obedience to regulations for public safety under the police power of the State was not a taking of property without due process of law.
“The same principles were recognized and the previous cases cited in Chicago, Burlington & Quincy Ry Co. v. People of the State of Illinois ex rel. Drainage Commissioners, 200 U. S. 561, and again in Union Bridge Co. v. United States, 204 U. S. 364. The result of these cases is to establish the doctrine of this court to be that the exercise of the police power in the interest of public health and safety is to be maintained unhampered by contracts in private interests, and that uncompensated obedience to laws passed in its exercise is not violative of property rights protected by the Federal Constitution.
“In this case the Supreme Court of Minnesota has held that the charter of the company, as well as the common law, required the railroad, as to existing and future streets, to maintain them in safety, and to hold its charter rights subject to the exercise of the legislative power in this behalf, and'' that any contract which undertook to limit the exercise of this right was without consideration, against public policy and void. This doctrine is entirely consistent with the principles decided in the cases referred to in this court. But it is alleged that at the time this contract was made with the *302railroad company it was at least doubtful as to what the rights of the parties were, and that the contract was a legitimate compromise between the parties, which ought to be carried out. But the exercise of the police power cannot be limited by contract for reasons of public policy, nor can it be destroyed by compromise, and it is immaterial upon what consideration the contracts rest, as it is beyond the authority of the State or the municipality to abrogate this power so necessary to the public safety. Chicago, Burlington & Quincy R. R. Co. v. Nebraska ex rel. Omaha, 170 U. S. 57.”
This holding has been expressly reaffirmed in the following cases: St. Paul, Minneapolis & M. R. Co. v. State of Minnesota ex rel. City of Minneapolis, 214 U. S. 497, 29 Sup. Ct. Rep. 698; Chicago, M. & St. P. R. Co. v. City of Minneapolis, 232 U. S. 430, 34 Sup. Ct. Rep. 400; Great Northern Railway Company and Willmar & Sioux Falls Railway Co. v. State ex rel. Village of Clara City Supra.
The police power is one of the inherent powers of government; and it can not be abdicated nor contracted away. As we have seen “it is beyond the authority of the State or municipality to abrogate this power so necsary to the public safety.” This being true it cannot be said that because the railway company in this case paid to the city, in the way of a “dedicated” right of way-., across its tracks a consideration for said ordinance and the obligations assumed by the city thereunder, the city is bound by the contract and can not now question its validity. The city by the ordinance requiring railroad companies to put in safety gates at crossings, the enforcement of which the appellant seeks to enjoin, simply denies, the validity and binding force of the provision *303of the former ordinance imposing this duty upon the city, as to the crossing under consideration.
Besides, it is well settled that one who contracts with a municipal corporation must inquire into the power of the corporation to make a contract and the railroad company in this case was therefore chargeable with notice of the absence of power in the city to make the contract which it now insists shall be enforced.
It may be that since the consideration recited in. the deed of “dedication” is not such as the city was authorized to give for the easement therein granted and conveyed, that the city may by appropriate proceeding be required to pay for such easement, but that is an altogether different proposition from asserting that because of such recited consideration the city shall not be permitted by ordinance, in the exercise of its inherent government powers to require the railway company to maintain at such crossing such safety appliances as are necessary to secure the public safety.
The provision here considered of the ordinance referred to as a contract being outside the powers of the city to legally adopt and therefore of no validity ánd binding force, it was perfectly competent for the city to adopt and enforce the latter ordinance.
There is no question of civic righteousness involved?, here, but with the construction given by the majority opinion to the city ordinance under consideration^ the vital principle of whether or not a municipality in this State may bind itself by contract to withhold the exercise of inherent governmental powers which it possesses and should exercise to secure the safety and general welfare of its citizens, in my opinion, is involved.