(dissenting) : In my opinion the ordinance is valid and should be enforced.
In the control of the streets the power of the legislature is supreme and unlimited except so far as it is restricted by constitutional limitations. The legislature may éxercise the power directly or through the municipal authorities, and when the power is delegated to the mayor and commissioners, as in this instance, that body has the same plenary power and full discretion that the legislature itself has and may exercise. Here the power to direct the making of an under-grade crossing was expressly conferred on the mayor and commissioners. It was not a mere general power to require the maintenance of crossings, but they were given the distinct authority to require specified kinds of crossings, that is, either a viaduct over or a tunnel under the streets. (Laws 1913, ch. 106.) The commission was authorized to require such a crossing whenever it deemed it to be necessary for the convenience, safety or protection of the public. The determination of the necessity, that is, the kind of crossing that will best subserve the public welfare, is purely a matter of legislative discretion with which the courts can not interfere. (City of Emporia v. Railway Co., 88 Kan. 611, 129 Pac. 161; State v. Union P. R. Co., 94 Neb. 556, 143 N. W. 918; Wabash Railroad Company v. Defiance, 167 U. S. 88, 17 Sup. Ct. Rep. 748, 42 L. Ed. 87; American Tobacco Co. v. St. Louis, 247 Mo. 374, 431, 157 S. W. 502; Swift v. Delaware, L. & W. R. R. Co., 66 N. J. Eq. 34, 57 Atl. 456; 1 Dillon on Municipal Corporations, 5th ed., § 243; 2 Elliott on Roads and Streets, 3d ed., § 956.) The expediency, policy or wisdom of the *740action taken by the mayor and commissioners within the statutory authority conferred is no more reviewable by the courts than would be the decision of the legislature if it had directly provided for the under-grade crossing in question. The legislature sometimes makes requirements of municipalities and individuals as to highways, parks and public grounds which may seem to members of the judiciary to be unreasonable, unnecessary and even absurd, but where the requirements do not transcend constitutional limitations the court can not repeal them nor substitute its own judgment as to what is the wisest and best policy. No more can the courts sit in judgment on the .decision of the mayor and commissioners as to whether an un-dergrade, overhead or grade crossing was the best adapted to the needs and protection of the public at the State street crossing. The municipal authorities were vested with authority to decide that question, and it is not within the province of the court to inquire into the wisdom or policy of their action, nor yet into the motives that actuated them. In Burlingame v. Thompson, 74 Kan. 393, 86 Pac. 449, it was said:
“It requires no argument and no reference to precedent to show that this court can not sit in judgment upon the motives actuating the municipal authorities in pursuing a course which the legislature expressly authorized them to take.” (p. 394; City of Wichita v. Burleigh, 36 Kan. 34, 12 Pac. 332; McCray v. United States, 195 U. S. 27, 24 Sup. Ct. Rep. 769, 49 L. Ed. 78.)
The power being expressly conferred on the mayor and commissioners and its exercise not being inconsistent with any constitutional or statutory provision, the ordinance should be upheld unless it is manifest that the municipal authorities acted in bad faith, and to nullify their action on that ground it must be so flagrant and fraudulent that it can not be regarded as in any' sense an exercise of legislative power.. The facts in this case were not such as to convict the municipal authorities of fraud or bad faith. One of the *741principal streets of the city was blocked by four tracks of the railroad company. The main line of the defendant passes through Emporia and over State street, and two branch lines of the company unite with the main line at this station, and consequently a great number of passenger and freight trains pass over the street. The crossing is only one block from the passenger station, and necessarily the trains which. stop at the station greatly obstruct the use of the street much of the time. The crossing is only three blocks from the entrance to the freight yards, and it is easy to see that there is great inconvenience and peril in a grade crossing at this place. Considerable is said about agreements having been made to build an undergrade crossing or such an one as the city authorities should direct, but in addition and apart from any agreement or any obligation resulting from the acceptance of prior ordinances it was the duty of the railroad company, when it built its tracks across this street, to restore it and make a safe and substantial crossing over it. That duty is a continuing one which has rested upon the company from the beginning, and the fact that there are crossings east and west of the street that afford a passage to the south does not relieve the defendant from making and maintaining a suitable and sufficient crossing on this street. A crossing of some kind was required. It devolved on the mayor and commissioners to determine its character, and in their legislative discretion they decided that the convenience and safety of the public required an undergrade crossing. In view of the conditions existing at the crossing, it can not be said that the decision of the commission is not an exercise of the legislative discretion vested in them. To set aside the ordinance is to convict the officers of bad faith and fraud, and in my view the facts in the case do not warrant such a conclusion.
I think the decision of the commissioner appointed by this court, to the effect that there were reasonable grounds for the passage of the ordinance, should be approved and the ordinance upheld.