8788, 8789, 8790 | S.C. | Apr 14, 1914
April 14, 1914.
The opinion in the first case, No. 8788, was delivered by After notice and a hearing, the railroad commission found that the crossing of Elmwood avenue, in the city of Columbia, by the Southern Railway was dangerous, and ordered the respondents to submit to it plans for improving and safeguarding it. The respondents failed to obey the order, and the commission brought this action for mandamus. The city demurred to the petition for insufficiency, on the ground, among others, that the order of the commission was without authority of law, in so far as it required the city to do any part of the work or bear any part of the cost thereof.
The commission has no power, except such as the legislature has conferred upon it. No statute has been cited and none has been found which authorizes the commission to make the order in question, in so far as it affects the city. The act of 1912 (27 Stat., 791) does empower the commission to regulate and control the manner in which any street may cross any railroad track. *79 But well settled principles require the act to be given a prospective and not a retroactive effect. It cannot, therefore, be held to apply to a crossing made before its passage, as this was.
This conclusion renders unnecessary the consideration of the other grounds raised by the respondents. As the order was directed to both respondents, and made in contemplation that both would share the cost of the improvements, dismissal of the petition as to the city requires dismissal of it as to the railroad company, because the commission may not have required the railway company to make the same improvements at its sole expense. The kind of crossings and safeguards to be required is in the discretion of the commission.
In each of the other cases, No. 8789 and 8790, the petitions were dismissed, for the reasons stated in the above opinion, by an order per curiam.