Siebecker, J.
The claim is made.that the railway company is liable for the cost of maintenance and repair of the viaduct. This presents the question whether the viaduct constitutes an alteration or a changed way of Muskego avenue, which the defendant’s railroads cross, or whether it is a new way. The referee and the trial court held that the viaduct is a new way and that the railway company is not obligated to repair and maintain it as a railroad crossing. The city assails this conclusion upon the grounds that the facts and circumstances disclosed by the evidence clearly show that the viaduct constitutes in fact and law a substituted crossing for defendant’s railroad crossings over Muskego avenue and hence is not a new way. The physical situation is shown in detail by the facts found by the referee and is set forth in the foregoing statement. It appears that Muskego avenue is an old established highway crossing the Menominee valley and forms the connecting thoroughfare between the city lying on the north of the valley and the portion lying on the south. It crossed the valley in a northeasterly and southwesterly direction, and within its termini was crossed by the north and south Menominee canal bridges, by defendant’s yard tracks, industrial and main-line tracks, shown in the detailed statement made above. Prior to 1891 the city and the railway company’s representatives had frequent negotiations concerning the public need to make travel across the valley safer and more convenient, but [542] failed to consummate and provide a scheme to- accomplish this end. Two legislative acts had been passed before the act of 1891 under which this viaduct was built: ch. 476, Laws 1887, entitled “An act to provide for the laying of a highway and the building of a viaduct across the Menominee river,” and ch. 231, Laws 1889, entitled “An act to' amend the-charter of the city of Milwaukee.” The first act authorized the construction of a viaduct and provided that the city should build the north and the defendant the south half thereof, if the defendant in writing, within sixty days after its passage, declared its acceptance or rejection of the provisions of the act and complied with its terms. The act also provided for future maintenance of the viaduct by the city and the railway company in the same proportion as was fixed for the original construction. The act makes no reference to provide for altering, changing, or vacating Muskego avenue. Nothing- is shown to have been done under this act before ch. 231, Laws 1889, was enacted. This act authorizes the city to acquire by condemnation a strip of land seventy feet wide across the Menominee valley connecting the north and south parts of the city. This strip' is located the same as the strip which was acquired under the provisions of ch. 122, Laws 1891, and on which the existing viaduct has been located. The act of 1889 provided that the.city use such strip of land for public purposes and specifies, among other things, that the city “may construct, erect and maintain thereon any public bridge or bridges, viaduct, abutments, piers or other thing, and improve the same or any portion thereof as a public street or walk, . . .” While nothing was done in constructing the viaduct as provided by these legislative acts, it is manifest that the object was to construct a viaduct across the Menominee valley at the place where the existing viaduct is located. Neither act treated the viaduct as a substitution for or a vacation of MuskegO' avenue. The viaduct was treated as a separate and independent street to meet the requirements of the public under the changed con[543] dition of travel across the valley. That such legislation was appropriate to enable the city to meet the public needs is recognized in the case of Bingham v. Milwaukee Co. 127 Wis. 344, 106 N. W. 1071, wherein ch. 444, Laws 1903, authorizing the construction of “viaducts by counties having a population of 150,000 or more,” was considered. The board of supervisors of Milwaukee county acted under this statute to construct a viaduct across the Menominee valley, connecting Grand avenue on the east and west sides of the valley. The basis for such legislation is there well stated in these words:
“That large and populous cities need better, safer, and more expensive highways and bridges for the accommodation of their teeming populations than small communities no one will deny. The simple rural highway and the inexpensive bridge may be ample for all purposes in the village or small city, while for the congested conditions of the great city the asphalt pavement and the broad and expensive bascule bridge may be not only proper, but absolutely essential to human safety.”
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Siebecker, J.
The claim is made.that the railway company is liable for the cost of maintenance and repair of the viaduct. This presents the question whether the viaduct constitutes an alteration or a changed way of Muskego avenue, which the defendant’s railroads cross, or whether it is a new way. The referee and the trial court held that the viaduct is a new way and that the railway company is not obligated to repair and maintain it as a railroad crossing. The city assails this conclusion upon the grounds that the facts and circumstances disclosed by the evidence clearly show that the viaduct constitutes in fact and law a substituted crossing for defendant’s railroad crossings over Muskego avenue and hence is not a new way. The physical situation is shown in detail by the facts found by the referee and is set forth in the foregoing statement. It appears that Muskego avenue is an old established highway crossing the Menominee valley and forms the connecting thoroughfare between the city lying on the north of the valley and the portion lying on the south. It crossed the valley in a northeasterly and southwesterly direction, and within its termini was crossed by the north and south Menominee canal bridges, by defendant’s yard tracks, industrial and main-line tracks, shown in the detailed statement made above. Prior to 1891 the city and the railway company’s representatives had frequent negotiations concerning the public need to make travel across the valley safer and more convenient, but [542] failed to consummate and provide a scheme to- accomplish this end. Two legislative acts had been passed before the act of 1891 under which this viaduct was built: ch. 476, Laws 1887, entitled “An act to provide for the laying of a highway and the building of a viaduct across the Menominee river,” and ch. 231, Laws 1889, entitled “An act to' amend the-charter of the city of Milwaukee.” The first act authorized the construction of a viaduct and provided that the city should build the north and the defendant the south half thereof, if the defendant in writing, within sixty days after its passage, declared its acceptance or rejection of the provisions of the act and complied with its terms. The act also provided for future maintenance of the viaduct by the city and the railway company in the same proportion as was fixed for the original construction. The act makes no reference to provide for altering, changing, or vacating Muskego avenue. Nothing- is shown to have been done under this act before ch. 231, Laws 1889, was enacted. This act authorizes the city to acquire by condemnation a strip of land seventy feet wide across the Menominee valley connecting the north and south parts of the city. This strip' is located the same as the strip which was acquired under the provisions of ch. 122, Laws 1891, and on which the existing viaduct has been located. The act of 1889 provided that the.city use such strip of land for public purposes and specifies, among other things, that the city “may construct, erect and maintain thereon any public bridge or bridges, viaduct, abutments, piers or other thing, and improve the same or any portion thereof as a public street or walk, . . .” While nothing was done in constructing the viaduct as provided by these legislative acts, it is manifest that the object was to construct a viaduct across the Menominee valley at the place where the existing viaduct is located. Neither act treated the viaduct as a substitution for or a vacation of MuskegO' avenue. The viaduct was treated as a separate and independent street to meet the requirements of the public under the changed con[543] dition of travel across the valley. That such legislation was appropriate to enable the city to meet the public needs is recognized in the case of Bingham v. Milwaukee Co. 127 Wis. 344, 106 N. W. 1071, wherein ch. 444, Laws 1903, authorizing the construction of “viaducts by counties having a population of 150,000 or more,” was considered. The board of supervisors of Milwaukee county acted under this statute to construct a viaduct across the Menominee valley, connecting Grand avenue on the east and west sides of the valley. The basis for such legislation is there well stated in these words:
“That large and populous cities need better, safer, and more expensive highways and bridges for the accommodation of their teeming populations than small communities no one will deny. The simple rural highway and the inexpensive bridge may be ample for all purposes in the village or small city, while for the congested conditions of the great city the asphalt pavement and the broad and expensive bascule bridge may be not only proper, but absolutely essential to human safety.”
It is manifest that the city of Milwaukee acted under ch. 122, Laws 1891, in building the viaduct in question. The provisions of sec. 31, art. IV, Const., as they stood at the time this chapter was enacted did not prohibit legislation granting special corporate power or privileges tO' cities or to amend their charters, and hence no objection exists against the provisions of this act as violative of the constitutional provisions. An inspection of the location and nature of the structure and the uses and purposes for which it was .built shows that the structure is not a part of nor an alteration of Muskego avenue. Its southern terminus is at the point of intersection of Muskego avenue and South Pierce streets on the hill on the south side of the valley; its course thence is wholly outside of Muskego' avenue, and crosses the valley on a line not occupied as a street to a northern terminus, namely, the south end of Sixteenth street, a distance of 4,100 feet, and its northern terminus is 1,300 feet away from the [544] northern terminus of Muskego avenue. The viaduct crosses the defendant’s Muskego* yard tracks 250 feet west oí the place where Muskego avenue crossed such tracks. It opened up and furnished a wholly different public street in connection with streets at its termini than does Muskego avenue, and provides a new, improved, safe, and convenient highway to meet the requirements of the new and additional public needs, for which use Muskego* avenue was not adapted. It also* appears that all of Muskego* avenue except the small part which crossed defendant’s yard tracks in the south part of the valley was needed and was retained for public use and is now so used, as is specifically shown by the facts stated in the referee’s report. The provisions of ch. 122, Laws 1891, authorizing the city to enter into* negotiations and to contract with the defendant for part payment of the cost of constructing this viaduct “as shall be agreed upon in consideration of any agreement which shall be made by said railway company in regard thereto, to vacate such portions of Muskego avenue as are occupied by the tracks and right of way of said railway company as shall be desired by said railway company and agreed upon by said city and railway company,” thereby relieving the railway company from building viaducts, causeways, or passageways over any part of Muskego* avenue so vacated, do not in effect constitute an alteration of this avenue or change or substitute its course to the viaduct provided for by the act. The state proposed to the railway company to vacate a part of the avenue upon the condition that the railway company contribute a sum of money to the construction of the new way. The legislation is manifestly based on the idea that the railway company was not obligated under sec. 1836, Stats., and sub. 48, sec. 3, ch. IV, of the city charter to* construct or maintain any part of the new viaduct spanning its right of way and yards in the valley, and that, by consent of the state, the railway company might, for a consideration, be relieved from a part of the burdens of maintaining crossings over Muskego avenue. [545] Since the state in the exercise of its police power could regulate these duties as to^ Muskego avenue, it could properly empower the city tO' make these proposed arrangements authorized by ch. 122, Laws 1891, to provide new ways for improving public safety and convenience and abandon such Muskego-avenue crossing over defendant’s railroad yards. It is within the legislative supervising power and control of public thoroughfares to attain this public purpose in the manner provided. Any contract between the city and railway company for this purpose is subject to legislative control and hence does not bargain away the right to' exercise the police power of the state on the subject. As stated in Chicago, B. & Q. R. Co. v. Nebraska, 170 U. S. 57, 18 Sup. Ct. 513, “Contracts of the latter description are held to be within the supervising power and control of the legislature when exercised to protect the public safety, health, and morals, and that clause of the federal constitution which protects contracts from legislative action cannot in every case be successfully invoked. The presumption is that when such contracts are entered into it is with the knowledge that parties cannot, bymaking agreements on subjects involving the rights of the public, withdraw such subjects from the police power of the legislature.” Chicago & A. R. Co. v. Tranbarger, 238 U. S. 67, 35 Sup. Ct. 678.
The right of this legislative control of this subject is pertinent in ascertaining the legislative intent embodied in ch. 122, Laws 1891. An examination of the provisions of the act, in the light of the condition of the public uses of Mus-kego avenue and the public necessity of improving the'facilities for travel over Menominee valley, clearly indicates that the legislature was impressed that public convenience and necessity 'required additional facilities for travel across Menominee valley and intended that the city should provide for this need by building the additional street over the new viaduct, and under the state’s supervising power the city was authorized to use for this purpose whatever sum of money [546] it and the railway company agreed the company should pay for being relieved of a part of its burdens of-maintaining crossings upon Muskego avenue, by means of vacating a part of the avenue. We are persuaded that the legislature, the city, and the railway company understood and intended that the viaduct was to be a new street and that the vacation of a part of the avenue was to be in consideration of the railway’s agreement to- pay the sum agreed upon as part payment of the cost of building the viaduct, and that the new street was in no sense an alteration or substitution of the avenue. The greater part of the avenue still exists and provides a highway for many of the uses to which it was devoted before vacating the part over the yard tracks. The suggestion that the provision of ch. 122, Laws 1891, authorizing an exemption to the railway company from maintaining its yard-track crossing, operates as a substitution and transfer of it to the viaduct is not'well founded. As above shown, the provisions of the act fail to disclose any such intent. The viaduct being a new way, the railway company was not in law liable to construct and maintain it as a crossing. It is also plain that the duty of the railway company to construct and maintain highway and street crossings is imposed on them under the police power of the state to secure the public against injury on account of the twofold use of the crossing, and any exercise of the legislative right to provide regulations concerning them is confined to the places which call for the exercise of this power. It is a power which attaches to and is inseparable from the place of crossing. When the public thoroughfare is abolished the duty expires, and is not transferable to a new place unless the new place constitutes in law a substitution of the former crossing. This was evidently the legislative understanding, and hence it authorizes the city to contract with the defendant for vacating Muskego avenue at a crossing upon a consideration to be paid by the railway company for being relieved of this duty. It would be illogical to hold that such [547] crossing duty of the railway on Muskego avenue could be transferred to another street and affixed to a place where no such duty exists.
It is considered that Muskego avenue was not altered by the construction of the viaduct upon the lines specified in ch. 122, Laws 1891; that the viaduct constitutes a new way or street across the Menominee valley; and that the railway company was not obligated under the statutes, the common law, or the city charter to construct, maintain, or repair the viaduct spanning its right of way. These conclusions are decisive of the case and elaboration of other points argued is not required.
By the Court. — The judgment appealed from is affirmed.