City of Mountain View v. Southern Pacific Railroad

NOURSE, P. J.

sued to condemn an easement over the right of way of defendant for the purpose of widening and extending Castro Street into a new street to be termed Moffatt Boulevard. Before the action was instituted the consent of the state Railroad Commission was requested and refused because the new boulevard contemplated a crossing of the Southern Pacific railway lines at grade. The trial court dismissed the proceeding upon the ground that such consent was a prerequisite to the construction of the crossing.

The controlling question raised on the appeal is whether an unchartered city may construct a crossing at grade over an existing railway line without having first procured the consent of the Railroad Commission

Section 43 (a) of the Public Utilities Act (Deering’s Gen. Laws, Act 6386), as amended in 1933 (Stats.. 1933, p. 2227) provides in part: “No public road, highway or street shall hereafter be constructed across the track of any railroad corporation at grade, . . . without having first secured the permission of the commission; . . . The commis

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sion shall have the right to refuse its permission or to grant it upon such terms and conditions as it may prescribe. ’ ’

This statute was enacted in conformity to section 23 of article XII of the Constitution which was amended in 1911 and again in 1914, and which declared, in part, as follows: “The railroad commission shall have and exercise such power and jurisdiction to supervise and regulate public utilities ... as shall be conferred upon it by the legislature, and the right of the legislature to confer powers upon the railroad commission respecting public utilities is hereby declared to be plenary and to be unlimited by any provision of this Constitution.”

To emphasize the purpose of this legislation section 43 of the Public Utilities Act was amended in 1933 by the insertion of a declaration that subsection (a) was enacted as a germane and cognate part of and as an aid to the jurisdiction vested in the commission, that it involved matters of health, safety and welfare of the people of the state.

To this point we have a statute, enacted under the express authority and direction of the Constitution, designed for the protection of the safety and welfare of the general public, and declaring that no such crossing as that contemplated in this proceeding should be constructed without the permission of the Railroad Commission. No point is made that the Public Utilities Act is not a valid enactment, nor that the provisions of section 43 do not fully cover situations such as that presented in this proceeding.