PLUMMER, P. J.,
pro tem.,
Dissenting.—As I have not reached the conclusions expressed in the majority opinion of
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the court, and the questions involved being close and not heretofore definitely settled, I herewith state the case as it appears to me.
On the thirteenth day of May, 1902, the town, now the city, of Bed Bluff, a city of the sixth class, upon the request of the division superintendent of the Southern Pacific Company, adopted a resolution closing Cedar Street in the town of Bed Bluff, the material portions of which resolution are as follows:
“Whereas, it appears to this Board that the use of said Cedar street at the place mentioned in said communication is rendered dangerous and unsafe for public use and travel by reason of the great use thereof by the engines and trains of the Southern Pacific Company; and whereas it further appears to this Board that the temporary closing of said street would not be detrimental to the best interests of the town of Bed Bluff and of the citizens thereof; and whereas it further appears . . . that it is now quite important for said company to complete the building now in course of construction and mentioned in said communication as the boiler house, it is therefore hereby ordered that the said Cedar street, between Madison street and Monroe street, in the town of Bed Bluff be, and the same is hereby temporarily closed to public travel, and that the Southern Pacific Company be granted permission to complete and occupy the said boiler house, and that said Company be permitted also to occupy and use the said Cedar street, so closed as aforesaid, for the purpose of carrying on its railroad business, and until the further order of this or some future Board of Trustees of the town of Bed Bluff; provided, and this permission and use shall be and they are upon the express condition that the title to the said street thus closed to public travel shall be and remain in the public as a street and highway, and that no permanent rights therein are hereby granted and the said Southern Pacific Company or its successors in interest, shall not by use or adverse possession acquire any title thereto as against the public or the town of Bed Bluff.”
It appears from the transcript that after the passage of this resolution the crossing over the railroad tracks of the defendant company on said street were torn out, the building mentioned as the boiler-house completed and used for a
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number of years, and that prior to the institution of proceedings for the reopening of said street a number of additional tracks were constructed by the defendant company across said street, and that at the time of the trial herein there were existing and being maintained and used by the defendant company eight different tracks across Cedar Street, two of which were and are used as switching leads to an additional number of tracks not mentioned.
It also appears that the boiler-house has been removed, but that since said thirteenth day of May, 1902, no crossing has existed on said street over the tracks of the defendant company, and the same are not so constructed as to permit the passage of vehicles or ordinary traffic.
It further appears that on or about the second day of March, 1917, the city of Bed Bluff filed with the Bailroad Commission of the state of California an application praying for the reopening of said street to public travel, and for an order requiring the railroad company to repair its tracks and place the same in condition, to the intent that they might be crossed by vehicles, persons, etc. That thereafter a hearing was had before the Bailroad Commission, which commission, after due investigation, came to the conclusion that while the opening of said street across said railroad would afford convenience to some traffic, it was not great enough to offset the hazard that would be incurred by the construction of a crossing over said defendant company’s tracks. Said commission also found that there was no crossing over the tracks of said defendant company at Cedar Street, and that there had not been any such crossing for many years, and at no time since the passing of the Public Utilities Act by the legislature of the state of California in 1911, and that section 43 of said act applies to this case wherein it provides that “No public road, highway or street shall hereafter be constructed across the track of any railroad corporation at grade . . . without first having secured the permission of the commission,” and thereupon entered its judgment denying the petition of the plaintiff, and declining to order the defendant company to construct a crossing across its tracks on said Cedar Street. No rehearing was asked for before the commission, and the matter was not carried to the supreme court by writ of review or other proceeding. Following the conclusion of the proceedings
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above referred to, this action was begun to obtain a judgment for the removal of the tracks of the defendant company across said street, on the ground that they constituted an unlawful obstruction and a public nuisance. The trial court adjudged the tracks belonging to the defendant, as they are now constructed and maintained across Cedar Street, to be a public nuisance, ordered the nuisance abated, and also ordered the defendant to so construct and maintain its said tracks across said Cedar Street that the same may be used by vehicles and teams, conveyances, and by the .public generally as a public street and highway.
The question tendered for decision is one purely of jurisdiction. If the Bailroad Commission had jurisdiction, its judgment is conclusive and final under the provisions of section 65 of the Public Utilities Act. If it had no such jurisdiction, then the superior court had a right to maintain the action which is now before this court upon appeal.
At all the times herein mentioned the plaintiff was, and now is, a municipal corporation of the sixth class, subject to the general laws of the state of California, and is not exercising any powers or authority under a freeholders’ charter as provided by sections 6 and 8 of article XI of the state constitution, and may exercise only the powers reserved to cities and towns by section 23 of article XII of said constitution, as follows: The enforcement of local, police, sanitary, and other regulations, other than the fixing of rates ordinarily vested in cities and incorporated towns. Upon this provision of the constitution, section 2694 of the Political Code, and the case of the
City of Los Angeles
v.
Central Trust Co.,
173 Cal. 323, [159 Pac. 1169], and
Civic Center Assn. of Los Angeles
v.
Railroad Com.,
175 Cal. 441, [166 Pac. 351], the plaintiff bases its argument for the court’s jurisdiction. In the former of these cases it is held that the laying out and improvement of streets within a city" are matters of much greater concern to its inhabitants than to the people of the state at large, and are municipal affairs, the' control of which has always been deemed within the proper scope of municipal powers. An examination of that case shows that the municipal charter of Los Angeles, adopted in accordance with section 6 of article XI of the state constitution, controlled the decision, as it was held that the city charter of said city was paramount to general laws in respect
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to municipal affairs. The concurring opinion in that case foreshadowed the development of the law touching the question of what was and what was not a municipal matter, and so in the case of the Civic Center Association we find the supreme court holding that the matter of railroad crossings in cities, the building of viaducts or subways, etc., are not municipal affairs, but are matters of general state concern, the language of the court being: “We are of the opinion that they come within the latter designation (Matters of General State Concern); that they are not properly municipal affairs, but always have been and still are affairs properly to be controlled and regulated by state authority within, as well as without, any particular municipality.” It is further held that where the railroad is entirely within the city, then such matters are purely municipal. But where the railroad in question is a part of a system connecting distant cities and states, then it does not come within such designation, because they serve the people at large, and are the means of communication between distant centers, and that it is not to the best interest of the state to leave them subject to the exclusive and unlimited control of every city through which they may pass, with respect to construction, maintenance, and operation of the lines lying within such city, the conclusion being reached in that case that it was the right of the legislature, under the constitution, to commit the regulation of such-railroads, so far as they operate within cities, to the exclusive control of the Railroad Commission; that such matters cannot be classed as a municipal affair, but as matters of general concern, and the legislative declarations on that subject are paramount to any city charter. This conclusion, as stated in that case, leaves the cities free to lay out streets and regulate the ordinary uses thereof, but instead of leaving cities free to exercise control when it comes to the railroad crossing of any street as urged by counsel in this case, it seems to us to expressly limit the power of the city to opening and controlling streets in the ordinary use thereof except where they cross a railroad system, such as is involved in this action.
In the case at bar it is proposed to construct a crossing where there now exists eight railroad tracks, including a main line upon which overland trains are operated, which certainly involves a matter of much concern to the entire
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state, in this, as stated in the resolution closing the street in the first instance, and as found by the Railroad Commission in the second, it would involve a matter of much hazard and seriously interfere with the operation of trains. The ability to handle cars quickly and without delay at switching centers is a facility of utmost importance to the uninterrupted transportation of freight and passengers. It may be stated that the increased hazards where so many tracks are involved, and the question of settling damages for accidents occurring at such places, are matters of general state concern, as such items must necessarily enter into the question of fixing freight tariffs and passenger fares.
Section 2694 of the Political Code, referred to in the second subdivision of section 43 of the Public Utilities Act, and incorporated therein so far as applicable, is a provision relating to procedure, and is not a limitation upon the power of the Railroad Commission granted in the first subdivision of that section. When the permission of the Railroad Commission has been granted to construct a crossing over a railroad, then the procedure set out in the section of the Political Code referred to is to be applied.
It is not necessary to express any opinion as to the validity or regularity of the resolution passed by the board of trustees of the town of Red Bluff, but it seems to me, from a careful study of its entire context, that the word “temporary,” therein used, was not intended to be used in the limited sense, and should not be held to have been used in •the sense in which that word is ordinarily employed when granting a permit to use a portion of a street for building purposes. In such instances, when the purpose for which the grant is made has ceased to exist, the grant itself may properly be held to have expired. The whole resolution seems to show that the purpose and intent of the board of trustees was an indefinite abandonment or relinquishment of a portion of Cedar Street for railroad purposes, saving and reserving to the city simply the legal title to a right of way across the premises involved for street or highway purposes. The thought seems to have been to exclude the idea only of a perpetual grant, the draftsman of the resolution apparently having overlooked the fact that as against the police powers of the state the railroad company could not have acquired any legal title by any adverse claim.
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It may foe further stated that the very nature of the use contemplated a considerable period of time, and was to reach over and extend into the future until the growth of the city created a necessity for a public crossing. It is thus apparent that while a highway as a fiction of law has existed over the tracks of the company, no highway and no crossing have been there since 1902, and did not exist as a fact in 1911, when the Public Utilities Act was passed by the legislature.
It also appears from the transcript that a number of tracks have been laid across Cedar Street, over which
no crossing has ever existed.
Under these circumstances, I think that the holding of the Railroad Commission that section 43 of the Public Utilities Act, immediately applied upon its enactment, was correct. Over all the tracks laid since 1902 it is unquestionably the construction of a new crossing, and over the tracks that existed on and prior to 1902 it is the construction of a new crossing on the old site. Nothing in the Public Utilities Act limits the right of a town or city to lay out, ordain, and establish streets and highways, so far as all the legal steps leading up thereto are necessary to be taken. But when this has been done, section 43 of the act lays hold upon the physical property and gives to the Railroad Commission jurisdiction to manage, direct, and control, through its orders to the railroad company, as to what shall be done with the physical properties. The city exercises its legal prerogatives; the Railroad Commission directs the exercise of the physical activities, and this, I think, is what the word “constructed” means as used in the Public Utilities Act.
While no California eases upon the precise questions here involved have been called to our attention, in the states of New Jersey, Connecticut, and New York, having a Public Utilities Act of like wording with our own, we find decisions directly in point.
In
Paterson & R. R. Co.
v.
Mayor etc. of City of Paterson,
81 N. J. Eq. 124, [86 Atl. 68], the court of chancery holds: “That the construction of a highway within the act of April 21, 1911, providing that no highway shall be- constructed across railroad tracks at grade without first obtaining permission therefor from the board of public utility commissioners, contemplates such grading, curbing, flagging, planking, or other physical alteration or addition as may be
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necessary to prepare it for use, and! the highway is not constructed by simply laying it out on paper and filing a map, since construction implies performance of work; the fitting of an object for use or occupation in the usual way, and for some distinct purpose; to put together the constituent parts; to build, to fabricate; to form and to make, and hence that section applies to a railway crossing laid out by ordinance, but not physically constructed prior to its enactment.”
In the Paterson case a street had been opened some time prior to May 20, 1908, in the city of Paterson, extending to the line of the Erie Railroad Company; a right of way had been .acquired across the railroad premises, but no crossing had been constructed as a physical fact when the Public Utilities Act went into effect. The act there, as here, provided that no highway shall be constructed across the tracks of any railroad company at .grade . . . without first obtaining therefor permission from the board. The question to be decided was, Did the act apply under such circumstances? The court answered in the affirmative, holding that the construction meant the physical work and was under the jurisdiction of the utility commission, the consent of which must first be had, even though the highway had theretofore been created as a matter of law.
In the case of
New York & N. E. R. Co.
v.
Waterbury,
55 Conn. 19, [10 Atl. 162], having a similar act, the court held “that the statute rendered the construction of a grade crossing illegal, although the highway had been laid out and was partially constructed before the passage of the act.” In considering the statute the court said: “It means that although a highway may have been previously laid out, partially constructed, and even built upon, if it has not actually been completed for public use across the rails of the railway, such crossing shall not thereafter be made.”
The court further said: “This peremptory arrest of the completion of a highway lawfully commenced is a seeming interference with the rights of individuals and of the public, but only is seeming; in fact, such crossings are public nuisances, dangerous to human life, and no man has a vested interest in the creation or continuance of such a nuisance.”
In
New York Cent, etc. R. R. Co.
v.
City of Buffalo,
200 N. Y. 113, [93 N. E. 520], the court of appeals, in an action brought to enjoin the city of Buffalo from the physical eon
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struction of a crossing over a railroad which had
been
laid out, and the right to construct the crossing having been obtained some years before the passage of the' utility act, but the work not having been in fact done, held: “That the city should be enjoined from extending the street or avenue across the tracks of the railway company until it had secured the determination by the Public Service Commission as to whether such avenue should be constructed over or under said railroad or at grade, and the manner in which such crossing should be constructed, thus declaring the paramount jurisdiction of the Public Service Commission over a situation which had been created before its establishment, and holding that the municipal corporation had not acquired any vested right as against the subsequently declared public policy of the state.”
In the state of Pennsylvania, where the Public Utilities Act reads: “All crossings hereafter established,” etc., a different ruling has been made.
In
Ligonier Valley R. R. Co.
v.
Latrobe,
216 Pa. 221, [65 Atl. 548], the court held: “That inasmuch as the highway, including the crossing, had been laid out and established before the statute of 1901 was passed, the statute did not apply.”
In speaking of this case, the New Jersey court expressly disavowed the reasoning of the Pennsylvania court unless there was a clear distinction between the word “construct” and the word “establish.”
An examination of the definitions of the word “establish,” as found in 16 Cyc. 591, shows that this distinction may very properly be drawn, as the words “construct” and “establish” are much different in their applications. The word “establish” includes the idea to institute, to ordain, to pass, to decree, to enact ,• to enact or decree by authority, etc. It is also there further stated, after giving a number of additional definitions, that there are few words which furnish more room for argument than the word “establish.” The word “construct” or “constructed,” as found in the New Jersey, Connecticut, New York, and California statutes, has a definite and distinct meaning, and, as stated by the New Jersey court, refers specifically to the putting together of the materials or constituent elements constituting the physical crossing itself.
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In line with the decisions of the courts which I have cited, I think it should be held that the Public Utilities Act laid hold upon the physical properties -belonging to the railroad companies just as it found them on the day the act became effective, and that jurisdiction then-vested exclusively in the Railroad Commission over all questions involved in this action.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 5, 1920.
All the Justices concurred.