This suit, under the Uniform Declaratory Judgment Act of Tennessee, was brought, on November 21, 1931, in the Chancery Court of Davidson county, part 1, by the Nashville, Chattanooga & St. Louis Railway against the state highway commissioner and the Attorney General. The purpose of the suit is to secure a determination of the constitutionality of an order entered by the commission and, as so applied, of chapter 132 of the Tennessee Public Acts of 1921, upon which the order rests. The statute authorizes the commission whenever a state highway crosses a railroad to require the separation of grades if in its discretion 'the elimination of any such grade crossing is necessary for the protection of persons travelling on any such highway or any such railroad'; and, without conferring upon the commission any discretion as to the proportion of the cost to be borne by the railroad requires the latter to pay in every case, one-half of the total cost of the separation of grades. The order requires the railway to construct an underpass so as to separate grades where a proposed state highway will cross its main line within the limits of the little town of Lexington; and to bear one-half the cost thereof.
The railway does not question the power of the state to build the proposed highway; nor its power to require the separation of grades; nor the appropriateness of the plan adopted for such separation; nor the reasonableness of the cost, $17,400. It does not deny that if the proposed highway is built safety of travel thereon and on the railroad will be promoted by separation of grades. It concedes that in Tennessee, as elsewhere, the rule has long been settled that, ordinarily, the state may, under its police power, impose upon a railroad the whole cost of eliminating a grade crossing, or such part thereof, as it deems appropriate. The claim of unconstitutionality rests wholly upon the special facts here shown. The main contention is that to impose upon the railway, under these circumstances, one-half of the cost is action so arbitrary and unreasonable as to deprive it of property without due process of law in violation of the Fourteenth Amendment.
The bill of complaint sets forth in detail the facts relied upon as showing that the action was arbitrary and unreasonable. The answer justifies the imposition solely as an exercise of the police power. Because many of the allegations of the bill were denied much evidence was introduced. That contained in the printed record in this Court occupies, with exhibits, 492 pages. The trial court found that, with one exception, the evidence fully supported every averment of fact in the bill. It held that the order and the statute as applied, is so far as they require the railway to pay one-half the cost of the underpass, are arbitrary and unreasonable; and that they are void. The decree enjoined the commissioner from attempting to enforce payment by the railway; ordered that the entire cost of the project (except for contributions by the federal government) be borne by the state highway commission; and directed the defendants to pay the costs of the cause. Upon appeal, the Supreme Court of the state reversed that decree, ordered the bill dismissed, and allowed an appeal to this Court. Nashville, C. & St. L. Ry. v. Baker, 167 Tenn. 470, 71 S.W.(2d) 678, 680. Consideration of the jurisdiction thereof was ordered postponed to the hearing on the merits. Nashville, c. & St. L. Ry. Co. v. Webster, 55 S.Ct. 90, 79 L.Ed. --.