REQUESTED BY: Dear Senator DeCamp:
You have asked for a review of the above legislative bill from the standpoint of constitutionality, questioning whether payment of money can be forced without agreement on the part of the payor or following due process procedures.
The bill, as amended, gives the Department of Roads authority to determine that (1) a railroad crossing shall be eliminated, (2) automatic railroad grade crossing protection devices shall be installed, modified, or improved, or (3) other measures are necessary to improve public safety at railroad crossings.
The bill further provides for establishing a safety improvement priority list and for the allocation of funds to pay the costs of safety improvements.
The initial authority apparently conferred in sec. 2 of the act is modified, however, by sec. 8, sub paragraphs (1) and (5), by requiring agreements regarding grade crossing eliminations or the Grade Crossing Protection Fund `as well as the supervision of the construction, installation, substantial modification or improvement, and the maintenance of such automatic safety devices for which any part of the cost is borne from the Grade Crossing Protection Fund, and the auditing and collection of the bills covering the cost thereof. The Department of Roads is further authorized to enter into such contracts with any railroad companies and political subdivisions affected which are necessary to carry out the provisions of sections 39-6,194 and 36-6,195.'
The conclusion is, that under sec. 2, the Department has the authority to `determine' but not to `eliminate', `install,' `modify', etc.
Such being the case, no one is being forced to undertake any crossing safety measure without agreement, and with agreement there is no constitutional issue, no party being required to pay involuntarily. If agreement is reached, then proportionate amounts are set by the act.