165 P. 967 | Cal. | 1917
Certiorari to review the order of the Railroad Commission in the matter of the Southern Pacific Company's application for permission to construct and maintain certain crossings in the city of San Jose. The Southern Pacific Company proposed to cross thirty-five streets and highways intersecting its contemplated route which it intends to construct for the greater part on its private right of way. The order of the Railroad Commission grants the railroad corporation permission to cross thirty-four of the streets and highways at grade. Regarding the thirty-fifth crossing at West Santa Clara Street commonly known as "The Alameda," an order was made that the Southern Pacific Company might have permission to construct its tracks only upon condition that there should be a separation of grades. The city of San Jose seems to concede that if a crossing is proper at this point, the grades should be separated, but vigorous attack is made upon that part of the decision of the Railroad Commission which is as follows: *286
The expense of caring for its tracks during the course of construction and laying its tracks in the subway after its completion, together with all expenses incident thereto, shall be borne by San Jose Railroads. All other expense except that in connection with the track work of the Southern Pacific Company, shall be borne fifty (50) per cent by Southern Pacific Company, thirty-five (35) per cent by City of San Jose and fifteen (15) per cent by Santa Clara County or the State Highway Commission, as the legal rights in the premises of the two latter parties may hereafter appear."
This order is attacked upon the grounds (1) that the Railroad Commission exceeded its authority and jurisdiction in determining that the city of San Jose should bear a proportion of the cost of this crossing, and (2) that the order is unlawful because it does not require as a prerequisite to the granting of the permission to cross "The Alameda," that the railway corporation should obtain a franchise from the city of San Jose.
In accordance with the provisions of section 23 of article XII of the Constitution and by the procedure furnished by the act of 1911, (Stats. Ex. Sess. 1911, p. 168), San Jose has elected to transfer and has passed to the Railroad Commission the city's control over public utilities. Therefore, as counsel for the Railroad Commission reminds us, this proceeding does not present the issue of a conflict between state and municipal powers by which we were confronted in City of Los Angeles v.Central Trust Co.,
We have here, therefore, a surrender by the city of San Jose, under the Constitution and the appropriate statute of the control over public utilities which was formerly exercised by that municipality. In the exercise of that authority, so conferred, the commission finds ample warrant for its order in section 43 of the Public Utilities Act, "(a) No public road, highway or street shall hereafter be constructed across the track of any railroad corporation at grade, nor shall the track of any railroad corporation be constructed across a public road, highway or street at grade, nor shall the track of any railroad corporation be constructed across the track of any other railroad or street railroad corporation at grade, nor shall the track of a street railroad corporation be constructed across the track of a railroad corporation at grade, without having first secured the permission of the commission; provided, that this subsection shall not apply to the replacement of lawfully existing tracks. The commission shall have the right to refuse its permission or to grant it upon such terms and conditions as it may prescribe.
"(b)" The commission shall have the exclusive power to determine and prescribe the manner, including the particular point of crossing, and the terms of installation, operation, maintenance, use and protection of each crossing of one railroad by another railroad or street railroad, and of a street railroad by a railroad, and of each crossing of a public road or highway by a railroad or street railroad and of a street by a railroad or vice versa, subject to the provisions of section 2694 of the Political Code, so far as applicable, and to alter or abolish any such crossing, and to require where, in its judgment, it would be practicable, a separation of grades at any such crossing heretofore or hereafter established and to prescribe the terms upon which such separation shall be made and the proportions in which the expense of the alteration or abolition of such crossings or the separation of such grades shall be divided between the railroad or street railroad corporations affected or between such corporations and the state, county, municipality or other public authority in interest."
But petitioner contends that this provision is unconstitutional, in that it gives to the Railroad Commission power to impose upon the city of San Jose an obligation to pay money from its treasury. It is argued that section 13 of article XI, which prohibits the legislature from delegating to any commission *288
power to interfere in any way with any municipal improvement, money or property, is a distinct limitation upon the legislature which prohibits it from allowing the Railroad Commission to appropriate, in effect, money from the treasury of the City of San Jose. Section 6 of the same article is invoked as an inhibition against state control of municipal affairs. To the latter objection the obvious answer is that the people of the city by solemn and orderly election have surrendered their right to control in this sort of municipal affairs. That right has not been taken away by the legislature, but by legislative permission has been vested by the people of San Jose in the Railroad Commission. Having thus abdicated their police powers with respect to the regulation of public utilities, the people of that city have lost such protection as might, under other circumstances, be afforded by the parts of the Constitution cited in their behalf, because sections 22 and 23 of article XII, by their plenary provisions, exclude all considerations of other parts of the Constitution, if any there be, conflicting with or contradictory to the Public Utilities Act, if only the matters of which that statute treats are cognate and germane to the subject of regulation of public utilities. (Pacific Tel. Tel. Co. v. Eshleman,
Upon the same subject, Mr. Justice Sloss, delivering the concurring opinion, said (
That the control of the manner of constructing railroad crossings is a vital and material part of the regulation of railroads and is germane to that subject is too evident to need supporting argument. The right of apportionment of the cost by the commission to the parties benefited by the crossing is a proper element of this cognate power. That a city receives benefit from a safety device such as that here contemplated may not be doubted. In Town of Polk v. Railroad Commission,
In a later case — Milwaukee v. Railroad Commission,
"The law seems to be the fruit of an honest and enlightened attempt on the part of the legislature to deal equitably and fairly with a great municipal problem.
"Milwaukee has during the last half century become a great and prosperous city. Its greatness and prosperity have come *290 because of its commerce, and its commerce has come largely because of its railroads. Without them Milwaukee as we know it to-day would not exist. The growth of the city and of the railroads has been coincident, interdependent, inseparable, and from this growth has arisen the great danger of the grade crossing. Why should not the expense of removing that danger be equitably shared by the different agencies whose joint growth has brought it about?"
The court of appeals of New York took occasion to express similar views. In re Erie R. R. Co.,
Petitioner insists that as the statute does not in term provide for service of process or notice of any sort upon the city or that the city's rights be examined at any hearing, the Railroad Commission might well take the property of the municipal corporation without due or any process of law. It is said that the statutory omission deprives the commission of the power to acquire jurisdiction of the city for the purpose of imposing liability for the cost of the improvement, and that as jurisdiction may not be imposed by consent, the argument of petitioner is not met by the fact that the city actually did have notice and was heard by the commission before the judgment and award were made. We do not regard the omission to provide definite process to bring the city before the commission at a hearing on the necessity for a safe crossing as being fatal to the acquirement of jurisdiction over the municipality by the commission. The latter is both a court and an administrative tribunal. As a judicial body it has by implication all the powers necessary for the exercise of its duty. The city *291 of San Jose does not complain that it had no day in court. It had notice to appear; actually did appear and was heard upon issue joined and evidence produced; and it had opportunity for review of the judgment. But aside from the power to summon and hear parties in interest — one which is necessarily involved in the judicial authority enjoyed by the commission, section 53 of the Public Utilities Act confers upon it power to prescribe rules of practice and procedure. Action has been taken under this authorization and it is shown that in the controversy between the city and the public service corporation these rules were followed.
Petitioner's remaining point is that the commission acted in excess of its jurisdiction in failing, as a prerequisite to the grant of any authority to the Southern Pacific Company to cross certain specified streets in the city of San Jose, to require the said company to obtain a franchise from the municipality for such crossing. There is no merit in this point. The order of the commission did not assume to enumerate all of the conditions with which the public service corporation must comply before being permitted to cross the streets in question. Whether or not a franchise to be granted by the city was requisite for the extension of the tracks across the streets the commission was not called upon, and we are not now called upon, in this proceeding, to determine. In the exercise of the police power conferred upon it, the commission was merely deciding how the safety of the public should be best preserved when the crossings should be made, if the contemplated extension should be consummated. The order was prospective both in its terms and its scope.
The writ of certiorari is dismissed.
Shaw, J., Sloss, J., Henshaw, J., and Angellotti, C. J., concurred. *292