74 Pa. Super. 265 | Pa. Super. Ct. | 1920
Opinion by
The question of law involved as stated by the appellant is, “Has the Public Service Commission jurisdiction to order a street of a municipality closed between the right-of-way lines of a railroad passing through the city without providing for carrying the street beneath or over the tracks of the railroad?”
In the month of September, 1915, the City of Erie entered into a contract providing for the removal of certain grade crossings at points where the tracks of the said railroad companies cross various streets in the said city and for the erection of subways at certain streets. The work contemplated under the contract was delayed on account of the war. The matter was brought before the commission upon complaint of the city of the inadequacy of the protection afforded by the railroad companies at the grade crossings. After the hearing the commission ordered the existing grade crossings at German, Poplar, and Plum streets to be abolished and eliminated by the closing of the portion of the said streets lying between the right-of-way lines of the said railroad companies, said abolition and elimination to be effective not later than October 1,1919.
The appellant states that the authority of the commission is not attacked upon any principle of reasonableness. It is purely a question of law involving the statutory authority of the commission to make the order.
The jurisdiction of the Public Service Commission must be found in the act which brought it into existence: Act of July 26, 1918, P. L. 1374; Frank v. Johnstown Fuel Supply Co., 70 Pa. Superior Ct. 446. That act em
The jurisdiction given is exclusive. It was evidently the intention of the legislature that the whole subject of grade crossings be put under the control of the commission. The appellant objects to this view, at least so far as its application to the present case is concerned, in that it takes away the powers given to cities to control the streets. It is conceded that the legislature has a free hand in regard to the functions of municipalities and can take away the control over the streets if it desires but it is claimed that that control has not been taken away by the act creating the commission. It is evident that this is true in a general sense but cannot be correct when applied to the control of such portions of the streets of a city as are involved in grade crossing cases. Necessarily when crossings are abolished, the part of the street which crosses the railroad tracks can no longer be
We are then met with the argument that the act provides such crossings are to be relocated or altered, or abolished according to the plans and specifications to be approved and upon just and reasonable terms to be prescribed by the commission, and that the employment of the words, “according to plans and specifications” bound the commission to such acts as required plans and specifications to accomplish. We can see nothing in this argument. The words are not used to limit the powers of the commission but in amplification of them. In other words the commission cannot only order the relocation, alteration, or abolition of grade crossings but they have also control of the methods to be employed in so doing and all the details involved in the work must be approved by them.
The Clark Act of June 27, 1913, P. L. 568, provides a code of government for cities of the third class and confers upon such cities control and jurisdiction over the streets, and in section 18, article V, confers upon said cities the right to provide for and require the construction and maintenance of bridges or other crossings above and under railroad tracks, and it is urged that unless the Public Service Act has not specifically repealed this
As far therefore as tbe closing of streets is a necessary concomitant to tbe abolition of a grade crossing tbe Public Service Commission to that extent has control of tbe streets of a municipal division. It will be noticed that in this case tbe part of tbe street that was closed by tbe order of tbe commission was that between tbe right-of-way lines of tbe railroad company. Tbe commission did not order tbe closing of any street beyond tbe property of tbe railroads.
Our attention has been called to tbe amendment of section 12, of tbe Public Service Act, by tbe Act of July 17, 1917, P. L. 1025, which gives authority to tbe commission to open highways to provide access to crossings and to abandon highways which have become unnecessary by tbe reconstruction or abandonment of crossings, but as tbe title of tbe act refers to tbe opening of such roads in boroughs and townships, we think that tbe proper conclusion is that tbe entire amendment is only applicable to those municipal divisions and does not apply to cities.
All tbe assignments of error are overruled and tbe order of tbe Public Service Commission is affirmed.
Appellant for costs.